Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, when we were discussing the first amendment this afternoon it was said that some immigration cases are determined on straightforward questions of fact. However, what we did after that Division, unfortunately, was to lump them all together so that the routine immigration matters that were referred to in the Minister's letter, which was quoted by the noble Lord, Lord Pannick, are being integrated with issues of extreme legal complexity which, as we have heard, go all the way up to the Supreme Court. We heard the noble and learned Lord, Lord Woolf, say that a sizeable proportion of the Supreme Court's diet was immigration cases. It will be interesting to hear from my noble and learned friend how the person who starts off as a litigant in person and gets part way up the ladder towards the Supreme Court would be able to gain representation when it became appreciated that the case was one of extreme legal complexity; or is this litigant supposed to go all the way up to the Supreme Court dealing with the case himself? The intention of the amendment is to provide scope for exceptional funding to be made available in these complex immigration cases. In such cases, the individual will be without legal representation by reason of the restriction on non-legal professional provision of immigration advice and services, the individual being unable to afford legal representation and the general exclusion of immigration from the scope of legal aid. The Bill removes most non-asylum immigration matters from the scope of legal aid. One of the main arguments used by the Government is that legal advice is not needed in a whole variety of cases, of which immigration cases are one example, and that instead those currently receiving advice and representation under legal aid will be able to look to general advice agencies, particularly the non-for-profit sector, for assistance, as we have heard. This rationale fails to address the provisions dealing with immigration advice and services in Part 5 of the Immigration and Asylum Act 1999, which say that only a person who is registered under the regulatory scheme run by the office of the Immigration Services Commissioner can provide those services. That scheme includes some not-for-profit organisations but very few of them are permitted to undertake work in key areas of immigration law. None is permitted to do judicial review work. Only those at the higher levels of the scheme, levels 2 and 3, are permitted to work on family reunions, appeals—representation at which is restricted to the highest level, level 3—removals and deportations, applications outside the rules, and illegal entrants and overstayers. Level 1 advisers, who constitute the vast majority of the not-for-profit organisations, are excluded altogether from these key areas for which legal aid is currently provided but will not be provided in future, save where an asylum claim is being pursued. Therefore, the suggestion that general advisers can fill the gap left by the withdrawal of legal aid simply does not work in immigration cases because of the regulatory scheme. Yet the scheme is an important safeguard against the exploitation of migrants by unqualified persons who offer themselves as immigration advisers, of which there used to be hundreds. The scheme was introduced with support across the political parties in response to serious concerns about such exploitation. I shall give a couple of examples of the sort of immigration cases that I envisage being far too complex for the individual to cope with. First, there is the case of a British overseas citizen of Malaysian origin, about whose plight my right honourable friend Simon Hughes and I had an interview, along with representatives of the Malaysian BOC community, with the Minister, Damian Green, a couple of weeks ago. It would not be necessary to trouble the Minister with cases that did not warrant representation by legal professionals. My second example is of a Kuwaiti Bidoon who has indefinite leave to remain in this country but whose wife and children, having left Kuwait clandestinely, found themselves in Damascus, where there was no provision for them to establish their identity as relatives of the head of the family in England. They have been stranded there for months, separated from him, because of the difficulty in getting permission to come here. Do they not need legal aid? Is it really the case that a family reunion of this sort can be dealt with by non-professionals, or even with the assistance of Members of Parliament? As I said, we expect Members of Parliament to be deluged with requests for advice and help in such cases. When this matter was raised in another place on Report by my right honourable friend the Member for Bermondsey and Old Southwark, the Parliamentary Secretary at the Ministry of Justice said: "““I certainly agree with my right hon. Friend that some immigration cases are complex, and I think that the point that he has raised is one for me to look at after today. I will do so, and I will come back to him on that””.—[Official Report, Commons, 31/10/11; col. 651.]" The fact is that the statutory appeals scheme is highly complex. Part 5 of the Nationality, Immigration and Asylum Act 2002 contains an intricate set of provisions to determine whether a person may appeal, on what grounds, and what evidence may be relied on in support of the appeal. There are numerous exclusions and limitations within this framework. The UKBA has not infrequently issued notices giving incorrect advice on the individual's appeal rights. The Administrative Justice and Tribunals Council says that immigration is an area of extraordinary complexity, as we heard earlier. We heard also that Lord Justice Jackson said of an issue affecting the situation of persons liable to removal that, "““this area of immigration law has now become an impenetrable jungle of intertwined statutory provisions and judicial decisions””." I am not aware that the Minister did come back to my right honourable friend on the point in question. However, in Committee at this end, my noble and learned friend Lord Wallace of Tankerness said: "““The position in the Bill is that exceptional funding should be granted only where it is required by law; that is that denying legal aid would risk a breach of an individual's rights under EU law or the ECHR. Case law has been consistent: that immigration cases do not … involve such a determination and, as such, exceptional funding would not be available””.—[Official Report, 18/1/12; col. 668.]" Lord Justice Longmore's stated that he was, "““left perplexed and concerned how any individual whom the Rules affect … can discover what the policy of the Secretary of State actually is at any particular time if it necessitates a trawl through Hansard or formal Home Office correspondence as well as through the comparatively complex Rules themselves. It seems that it is only with expensive legal assistance, funded by the taxpayer, that justice can be done””." It follows, therefore, that without legal assistance justice will not be done, and that the right way to reduce costs would be to simplify the rules and procedures rather than effectively depriving these people of access to justice. The UKBA website section on staff guidance, instructions and country information contains 20 distinct sets of guidance, many of which are themselves broken down into voluminous chapters and sections, making a vast array of immigration policy and instructions which are all subject to frequent revision and restructure. In each of the past two years there have been eight changes to the Immigration Rules. Thus, on the analysis of Mr Djanogly, quoted earlier, immigrants are doubly prejudiced. They are to be excluded entirely from exceptional funding, so that even where there is a real need for legal advice and representation the director of legal aid casework cannot make it available. Secondly, by reason of the much needed regulation, those who cannot afford to pay face being excluded from any legitimate advice service. I can understand the Government's position as described by my noble and learned friend the Lord Advocate, if, indeed, the alternative sources of advice that are available in every other type of case were available to immigrants with complex cases such as the family reunion case cited by my right honourable friend the Member for Bermondsey and Old Southwark, and I could give many other examples from my own correspondence with the Immigration Minister, as I am sure he would confirm. One side effect of totally excluding complex immigration cases from legal aid, as I have said, is that honourable Members and those of us in this House who take an interest in immigration cases will be deluged with a flood of letters and e-mails from those who desperately need help and cannot get it anywhere else. I dread to think of the additional burden on the staff dealing with correspondence on behalf of the Minister. As in other areas of this Bill where access to legal aid is being terminated, the savings the Government hope to achieve at the expense of the poor and vulnerable are counterbalanced by increases in spending elsewhere, which they have not bothered to quantify. I wonder also whether in some of these complex immigration cases—I think of family reunion cases in particular—the denial of legal aid might be held to constitute a breach of Article 8, the right to respect for family life, coupled also with Article 14 on freedom from discrimination. I ask my noble and learned friend whether he has thought of the likelihood of such cases being brought against the Government in respect of the denial of legal aid in these cases, and how would they deal with them. All these problems could be avoided if the Government would accept my amendment, as I hope my noble and learned friend is about to do.