Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, I thank my noble friend Lord Avebury for moving his amendment, which relates to issues of immigration and detention. Amendments 68 and 70 would bring into scope of legal aid several legal services in relation to rights to enter and remain in the United Kingdom for anyone who is liable to be detained under the immigration powers. As a preliminary to his arguments my noble friend suggested that, if the Government wished to save money, we should tackle the UKBA’s decision-making. The UKBA already has a wide-ranging improvement programme under way to continue to improve the quality of its decision-making in asylum and entry claims and in points-based systems, although I would be the first to acknowledge that in any programme like that there is always scope for improvement. The amendment would cover those who have been refused leave to enter or remain. It would also, however, cover persons ““liable to detention”” pending examination while the decision to grant leave to enter is taken, or while on temporary admission pending deportation under Schedule 3 or under the auto-deport provisions in the UK Borders Act—that is where the words ““liable to be detained”” appear—and where removal action has been taken against them as overstayers. As has been said in relation to a number of issues, not least earlier today in relation to immigration issues, tough decisions have to be taken and choices made about the scope of legal aid. Nevertheless, we are being clear that where issues of liberty are at stake, legal aid should be available, subject to the means and merits tests. That is why this Bill provides that when someone is detained under the immigration powers to detain, as referred to in paragraph 22 of Part 1 of Schedule 1, legal aid will still be available to challenge their detention. The amendment however would go well beyond that principle. Both my noble friend Lord Avebury and the noble Lord, Lord Bach, asked how one might distinguish between immigration detention and the underlying reasons. Under the current legal aid scheme, solicitors have to deal with mixed cases where some elements of the case are in scope and some are out of scope. That is dealt with through guidance, and further guidance will be made available setting out what solicitors can and cannot do under legal aid. It is absolutely clear that it will be necessary for them to understand the immigration background of their client in detention. Legal aid will not cover advice on an appeal on the matter of the substance of the immigration decision but it does not preclude taking action to secure a client’s liberty. My noble friend mentioned a case that had been raised by ILPA involving someone who might be deported to Somalia. There had been difficulties in removing the person to Somalia and it was expected that that person could be detained for some considerable time. Clearly, in such a situation it would be possible to challenge detention and legal aid would remain if the UKBA had no realistic prospect of removal within a reasonable period of time. As I have indicated, the amendment takes us well beyond the situation of liberty. The phrase in the amendment, ““liable to detention””, covers those who are not detained. Amendments 68 and 70 would bring back into scope legal aid in relation to rights to enter and remain for any immigration case where a negative decision has been made, or for anyone ““liable to detention”” pending examination of our decision to grant leave to enter that is taken while on temporary admission pending deportation and when removal action is taken against overstayers, as opposed to being focused on those cases where the individual’s liberty is at stake. Were the amendment to be passed, it would have a significant impact. Our proposals regarding immigration will bring an estimated £20 million saving. We do not believe—I have indicated that it is not easy and that it is tough—that that is appropriate in these circumstances. Immigration cases are generally about whether the facts of a particular case meet the Immigration Rules and are generally heard in tribunals, which are designed to allow people to represent themselves. It is important that, as well as indicating that issues affecting the liberty of the individual are within scope, the Bill makes legal aid available too to asylum seekers and those seeking protection for human rights’ reasons. It also makes legal aid available in relation to matters concerning accommodation for asylum seekers and in immigration cases, as I have said, where the person’s liberty is at stake. There are of course other categories where legal aid will be available. Immigration matters relating to the Special Immigration Appeals Commission and the domestic violence immigration rule will remain in scope as well as advocacy in the Upper Tribunal in such cases. Immigration judicial reviews are in scope, subject to some exceptions, and it is intended to focus legal aid on those who need it; that is, those seeking protection in the UK where persons may be at risk of persecution or torture if returned to an unsafe country or where a person’s liberty is at stake. It has been a question of trying to prioritise and to focus help on those who need it most in the most serious cases. It is these cases where we believe that legal aid representation is justified. I anticipate that that will not satisfy my noble friend but I hope that he will understand that, in trying to address these issues, we have sought to give priority in cases such as asylum and where the liberty of the individual is at stake. In doing so, I hope he agrees that these are appropriate judgments. The consequence has been that it has not been possible to include within scope a much wider range of immigration cases. I invite my noble friend to withdraw his amendment.