Employers who employ immigrants who do not possess permission to work are already given criminal or civil penalties if they fail to check their employee’s immigration status and keep copies of the relevant documents. The UK Border Agency (or whatever it is called this week) issues lists of defaulting employers, presumably in order to name and shame them. Fines remain uncollected, though, as the Chief Inspector of the UK Border Agency revealed in a report last year. It is almost as if the fines aren’t the point…

The effects of this pernicious policy are difficult to ascertain and I am unaware of good quality research on the issue. Certainly none seems to have been commissioned by the Government. Evidence-based policy-making remains a New Labour pipe dream. There are reports of jobseekers from ethnic minorities finding that they have to change their name to get an interview and the policy must surely have made employers nervous of employing anyone who looks or sounds like they might be an immigrant. One black British man bravely made a stand against this snooping and was sacked for his troubles.

Like other immigration lawyers I have drafted several legal opinions on whether a particular person does or does not have permission to work. The UK Border Agency often misunderstand the effect of their own laws and the problem of ‘magically’* extending leave to enter or remain under section 3C of the Immigration Act 1971 is renowned. Immigration status really is not easy to ascertain, even for immigration lawyers, and there is even an odd mechanism whereby the UK Border Agency can retrospectively declare that you were here illegally even though you thought you were – and certainly looked like you were – legally present.

And now, with David Cameron seemingly playing the role of Gary Cooper in High Noon, private landlords will also be deputised as agents of border control. Will there also be civil penalties of up to £10,000? Most of the employers targeted by the UK Border Agency seem to have been very small ethnic minority businesses anyway, not the giants who can afford such fines. Will there be an equivalent provision allowing criminal charges to be brought against a landlord who knowingly rents to a person without lawful immigration status? Will defaulting landlords be subject to similar ‘naming and shaming’? Will landlords be subjected to UK Border Agency inspections and raids to ensure they are complying with their state imposed immigration status snooping, as already are small businesses? There is no detail yet to the proposed Bill so these questions cannot yet be answered.

There has been speculation about whether the change would require a register of private landlords. My own view is that it would not. There is no equivalent register of employers, for example, and the Baroness Scotland case showed that any level of employer-employee relationship can attract a fine. To be sure, if this were a rational and well thought out policy then a register would be a prerequisite. The policy is instead about intimidation, about pressuring migrants and ethnic minorities (“but you look foreign!”) by indirect means and providing justification for nasty UK Border Agency raids.

Essentially, this is an example of the Government attempting to introduce continental style internal immigration controls but without continental style universal identity cards. Instead, even the UK Border Agency has no idea about a person’s immigration status, as the pre-Christmas Capita fiasco revealed, when British citizens and other long term lawful residents suddenly received text messages telling them to leave the UK immediately, based of course on appalling UK Border Agency record keeping.

I’m sorry to say that for we immigration lawyers, the proposed change will be good for business. These days, everyone needs an immigration lawyer: not just immigrants with complex cases but almost any immigrant or their sponsor plus employers and universities. Soon landlords will be added to the list. It is as if the UK Border Agency secretly loves us. So, I end with an offer. If you are one of the 25% of Tory MPs (hat tip to Sue Lukes) who is a private landlord, you know where to find me if you need an immigration advice. Assuming you won’t just be turfing out any tenant who *might* be foreign.

*i.e. invisible except to immigration lawyers, and even then we might be wrong if an application is later declared invalid.

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Related posts:

1. David Cameron opposes immigration rules change
2. Local immigration enforcement
3. Should she go?

Round up

There are some detailed blog posts to come on some of the more important things that happened in the last fortnight, but for those who missed their beloved Free Movement updates here is a brief round up of developments I’ve spotted looking through my emails on my return from holiday. In no particular order…

The Home Office’s self inflicted wounds caused by bad legislative drafting and rushed legislation continued with a rare example of the Court of Appeal upholding a major legal ruling by the Upper Tribunal, that of Ahmadi on section 47. As previously discussed this potentially causes huge problems down the line for the Home Office as setting later lawful removal directions will often trigger a further right of appeal. The more normal pattern was resumed with a grant of permission to appeal to the Court of Appeal to the Claimants in the never ending Zimbabwe Country Guidance litigation.

The universal policy of granting separated children three years Discretionary Leave without regard to their welfare was held by the High Court to be unlawful.

A new Immigration Act was announced in the Queens Speech. Details are sketchy but look ominous. The Government briefing says the main elements of the Bill will be:

Access to services

• The Bill would enable tough action against businesses that use illegal labour, including more substantial fines.
• The Bill would regulate migrant access to the NHS, ensuring that temporary migrants make a contribution 
• The Bill would require private landlords to check the immigration status of their tenants
• The Bill would prevent illegal immigrants from obtaining UK driving licences

Enforcement and appeals

• The Bill would ensure that only those cases that raise the most important immigration issues would have a right of appeal.
• The Bill would close a number of gaps in enforcement officer’s powers.

Article 8

• The Bill would contain provisions to give the full force of legislation to the policy we have already adopted in the Immigration Rules.
• The courts would therefore be required to properly reflect the balance given to the public interest when ruling on immigration cases.

There’s a good Adam Wagner article in the New Statesman on the rebalancing of Article 8.

Corum Children’s Legal Centre issued a new report called Happy Birthday? Disputing the age of children in the immigration system. The report includes some simple, practical and implementable changes to the existing age assessment process, which is currently harming rather than protecting too many young people.

Judgment in Alarape and Tijani C-529/11 was finally given by the Court of Justice of the European Union on the issue of whether third country nationals who are family members of a Union citizen resident under Article 12 of Regulation No 1612/68, as amended by Directive 2004/38, build up an entitlement to permanent residence. Deciphering CJEU judgments is always a little trying but it doesn’t look like a helpful judgment at first glance.

The latest judgment in the Zambrano saga was also handed down by the Court of Justice, the case of Ymeraga C-87/12. It is a significant case in a legal sense but offers little by way of practical guidance on the meaning of “the genuine enjoyment of the substance of the rights conferred by virtue of his status as a Union citizen”.

The Identity and Passport Service is to be renamed Her Majesty’s Passport Office, a title that emphasises the Government’s recent eagerness to assert prerogative powers over the issuing of passports. Perhaps because they seem to already have lost such prerogative powers over immigration control in the Supreme Court judgment in Alvi?

In the case of Khatoon v The Entry Clearance Officer Islamabad [2013] EWHC 972 (Admin) paragraph 27 of the Immigration Rules was held by the High Court not to require the Secretary of State (or an Entry Clearance Officer) to treat a person as if they were a child when in fact they were not for human rights and child best interests purposes.

There were a couple of interesting immigration articles on Open Democracy, one by Dr Frank Arnold on the utterly unfounded allegation of self scarring in Tamil torture cases and another on observations of bail hearings.

More soon…

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Related posts:

1. Round up
2. “Still the merry-go-round goes round, and round, and round again”
3. New guidance on rule 320(7B) refusals published

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Last week, Chambers had the pleasure of co-hosting with Tamils Against Genocide (TAG) and the LSE a screening of the forthcoming documentary ‘No Fire Zone – The Killing Fields of Sri Lanka’.  This follows 2 previous and shorter documentaries broadcast by Channel 4 in 2011 and 2012 and all three films have been directed by Callum McCrae.  The screening was preceded by a panel discussion consisting of TAG Director Janani Jananayagam, one of our colleagues Shivani Jegarajah and the film’s Director Callum McCrae, chaired by Dr Devika Hovell, Lecturer in Public International Law at the LSE.

The film which lasts approximately 90 min documents the final harrowing months of the conflict, which spanned 26 years in Sri Lanka.  It is a meticulous and chilling exposé of war crimes and crimes against humanity through personal stories of displaced persons and victims as well as video footage.

Callum McCrae reiterated in the panel discussion, as is also done in the film, that all of the footage has been painstakingly verified by independent forensic experts.  This body of evidence is in complete contrast with the Sri Lankan government’s bare denials and statements that it is all lies.  The No Fire Zone team offers not just a definitive film of record, but also a film to jolt the international community and audience to call for action.  Without truth, there can be no justice in Sri Lanka and without justice there can be no peace.

Janani Jananayagam of TAG very helpfully set out TAG’s approach as an advocacy and lobbying organisation to get these crimes recognised and the perpetrators prosecuted.  In the Q & A session that followed, a discussion developed concerning the rationale behind pursuing an International Criminal Court (ICC) prosecution in light of Sri Lanka not being a signatory.  In the knowledge that countries like Russia and China would almost certainly veto any move in the Security Council of the United Nations to make a referral to the ICC (the only other way to ‘engage’ the ICC if a country is not a signatory), Janani was asked whether it is worth TAG pursuing this.  Janani was firm in her and TAG’s belief that any such international exposure can go a long way towards TAG’s objectives.  There is certainly something to be said about letting Russia and China take the blame for vetoing rather than sacrificing the victims’ rights to seek truth and justice at the highest level.

Shivani Jegarajah shared with the audience her experience of being one of the leading counsels in the pending Upper Tribunal Country Guidance case on the risk on return for Tamils and in particular the impressive expert evidence that was called.  Shivani has acquired her expertise in the area over a period of 20 years or so and it is expected that the Upper Tribunal will promulgate its determination in the next 2 weeks.

Over the next year or so, the No Fire Zone Team will be organising a world-wide tour of screenings, for which funding is required.  The film was shown in the Palais des Nations in Geneva on 28.02.2013 and with Sri Lanka due to host the Commonwealth’s biennial heads of government meeting later this year in November, the pressure is on.  If you would like to support this cause by making a donation, please do so here and if you would like to spread the word, click here for suggestions on how to do so.

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Related posts:

1. Secret Sri Lanka policy emerges
2. Tamil returnee claims torture in Sri Lanka
3. Stand-by group for charter flight cases

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2. New research paper on marriage immigration
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From the Legal Aid Handbook people, brand new edition available to buy now.

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Zane has suggested on Twitter he is appealing but this looks pretty authoritative, at least in cases that were decided before the Supreme Court decision in Alvi. Note that the claimant in this case, Syed, had to argue that non binding ‘policy guidance’ changed the meaning of the quasi-statutory immigration rules. For cases after July 2012, if there are any, the legal arguments are a little different.

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This post by Frances Meyler and Sarah Woodhouse, Co-Directors of the Liverpool Law Clinic, School of Law and Social Justice, University of Liverpool, examines some of the arguments that might be put forward in an application for an ‘Exceptional Case Determination’. It focuses on articles 6 and 13 of the ECHR and also Article 47 of the EU Charter of Fundamental Rights and Freedoms. The post draws from a review by the authors entitled ‘Changing the immigration rules and withdrawing the ‘currency’ of legal aid: the impact of LASPO 2012 on migrants and their families’, appearing in this month’s special legal aid issue of Journal of Social Welfare & Family Law, 2013, Vol. 35.

Immigration cases that now fall outside of the Legal Aid, Sentencing and Punishment of Offenders Act may resort to one final possibility which might provide access to legal aid. Section 10 gives entitlement to legal aid where there has been an “exceptional case determination” (‘ECD’). An ECD must be made if failure to do so would be a breach of the person’s “Convention rights (within the meaning of the Human Rights Act 1998)”, or their “enforceable EU rights”. “Any risk” that failure to make an ECD would be such a breach may also lead to an ECD if “it is appropriate … in the particular circumstances of the case”.

Applicants will need to show that without an ECD they would not have effective access to justice and that representing themselves is not an option. The Public Law Project believe that where the following factors are present the applicant ought to qualify for an ECD, and if refused the case may be susceptible to challenge by way of judicial review:

• The case is factually, procedurally and legally complex
• The issues at stake are of great importance for the litigant, for example, issues of life, liberty, independence, family life, protection from abuse and the welfare of children and vulnerable adults
• The financial implications of losing the case are ruinous for the litigant
• The litigant has characteristics which make it difficult for them to represent themselves, such as a physical or mental disability, a communication problem, a limited understanding of English, fluctuating capacity or limited education or literacy levels
• The litigant has a deep emotional involvement with the proceedings, rendering them unable to advocate objectively in court, for example, where there are allegations of abuse
• There are no other means of assisting the litigant, for example, there is no pro bono legal help available, and, there are no other sources of funding available and there are no other routes of seeking redress.

In addition, concerns have already been expressed at the highest level amongst the immigration judiciary about the absence of legal aid in cases where migrants are not well-equipped to represent themselves, for example in cases where the individual’s literacy ability is limited or where the hearing is preceded by a prolonged period of detention: Farquharson (removal – proof of conduct) [2013] UKUT 146 (IAC). It is interesting to note that the President in that case referred to common law fair trial principles, rather than relying on the ECHR. This is no doubt because of the case of Maaouia v France 39652/98 [2000] ECHR 455 (5 October 2000), which precludes reliance on Article 6 ECHR in immigration proceedings (see below). Moreover with government intentions on the Human Rights Act becoming increasingly less subtle, it would hardly be surprising if the judiciary began to place greater reliance on the common law where the most obvious source of law is the ECHR.

Convention Rights: Article 6 ECHR

When might failure to provide legal aid amount to a breach of a person’s ‘Convention Rights’, so as to trigger an ECD, in the immigration context? Article 6(1) guarantees the right to a fair trial and, importantly, access to a court. Whether access to a court implies a right to state-funded legal assistance has been considered on several occasions by the European Court of Human Rights, and the general principles are now well established.

The Court has held that the right to a fair trial, whether civil or criminal, implies that the litigant must have the opportunity to present his or her case effectively before the court, and if the litigant cannot pay for legal assistance then denial of legal aid can amount to a breach of the right of access to a court. The question of whether legal aid is necessary to give effect to this right is to be determined on the specific facts of each case, taking into account factors such as the complexity of the law or procedure, the capacity of the applicant to represent him or herself, and what is at stake for both sides. Complete equality of arms between the two sides is not required, provided both have a reasonable opportunity to present their case under conditions that do not place him or her at a substantial disadvantage vis-à-vis the adversary. Further, the right to legal aid or legal assistance from the State is not absolute, and proportionate restrictions that pursue a legitimate aim are lawful (Steel and Morris v. UK – 68416/01 [2005] ECHR 103; Alkan v Turkey – 17725/07 [2012] ECHR 233).

However, difficulties arise in the immigration context. Article 6(1) itself states that it applies to ‘the determination of’ a person’s ‘civil rights and obligations or of any criminal charge’. The European Court of Human Rights has held that ‘civil rights’ do not include disputes relating purely to public law rights. In Maaouia v France the Grand Chamber held that Article 6(1) was not applicable to decisions on entry, stay and deportation of aliens, since such decisions “do not concern the determination of an applicant’s civil rights or obligations or of a criminal charge against him, within the meaning of Article 6(1) of the Convention” (para. 40). The Grand Chamber explained

“because of the substantial discretionary and public-order element in such decisions, proceedings relating to them are not to be seen as determining the civil rights of the person concerned, even if they inevitably but incidentally have major repercussions on his private and family life, prospects of employment, financial position and the like”.

Maaouia v France has since been applied domestically in the UK (e.g. MK (Iran) v SSHD [2010] EWCA Civ 115), but there is considerable confusion about the distinction between a civil right (where Article 6 standards apply) and a public law right (where Article 6 standards do not), and the jurisprudence of the ECtHR about the proper scope of Article 6 is in a state of flux. In the meantime, domestic decisions have affirmed the distinction between civil and public law rights, clarifying that it is the “the nature and purpose of the administrative action which determines whether its impact on private law rights is such that a legal challenge to it involves a determination of civil rights”, with some questioning, in the asylum context, whether the line between civil and public law has been drawn in the correct place by the European Court (Matfah v FCO [2011] EWCA Civ 350).

Many immigration practitioners share the view that the decision in Maaouia v France needs rethinking, and would argue that Article 6 protections to access the court should be extended to disputes concerning immigration as well as asylum. Whilst the jurisprudence of the European Court indicates that the gravity of the issues involved for the individual is not determinative of whether a right is characterised as a public or civil right, many would argue that the seriousness of the impact on the individual of immigration decisions should be taken into account. Certainly, that the protections of Article 6 are enjoyed by those claiming a ‘right to property’, and other ‘pecuniary rights’ strikes us as somewhat ironic, when these protections are denied to immigrants and asylum seekers. The other element is the increased specificity of the Immigration Rules, which perhaps make it incorrect to characterise immigration decisions as ‘discretionary’ and suggest that the protections of Article 6 might be appropriate.

Convention Rights: Article 13 ECHR

Whatever the arguments about the proper scope of Article 6, we have explained why it does not, on the current jurisprudence of the domestic courts and European Court of Human Rights, apply to immigration proceedings. As things stand, it will be very difficult to use Article 6 in the immigration context to establish entitlement to a positive ECD for immigration cases, therefore, as to do so would probably require a change of approach by the European Court of Human Rights.

However, Article 13 ECHR provides a right to an effective remedy for violations of other rights under the Convention: the inability to obtain a remedy before a national court for an infringement of a Convention right is itself an infringement of the Convention, and can be challenged as such. In the family migration context, those pleading Article 8 might be able to rely on Article 13 as the basis for an ECD. They might argue, for example, that an ECD should be made, since without it there would be a breach of their ‘Convention rights’ (Article 13, the right to an effective remedy), because legal aid is required to enable them to argue that their removal would breach Article 8 ECHR, and without legal aid there is no ‘effective remedy’.

Article 13 will not help all those with whom we are concerned. It will probably not assist those whose applications rely on the Immigration Rules alone, as it requires another Convention right to be in play. In addition, the factors mentioned above in the discussion of Article 6 will need to be assessed to determine whether, on the particular facts of the case, refusal to grant legal aid in relation to an Article 8 claim might amount to a breach of Article 13. These factors include the complexity of the law or procedure, the capacity of the litigant to represent himself, and what is at stake for both sides. It is also worth noting that Article 13 was not implemented by the Human Rights Act, as it was assumed that the Act itself was the effective remedy.

EU Charter of Fundamental Rights

An ECD must also be made if failure to do so would be a breach of ‘enforceable EU rights’. The EU Charter of Fundamental Rights, Article 51, binds EU states to the provisions of the Charter when implementing EU law. Article 47 of the EU Charter sets out a right to an effective remedy and is based on Article 13 ECHR. However, Article 47 of the Charter is broader than Article 13 ECHR, and unique in its specific mandatory reference to legal aid where required to access justice meaningfully:

“Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.”

Article 47 might therefore provide a right to legal aid where an immigration case is founded directly on EU law. In addition to the obvious free-movement cases, there may be arguments raised concerning, for example, whether UK opt-out clauses have real bite (e.g. in relation to the family reunification Directive: Council Directive 2003/86/EC of 22 September 2003). There may also be certain cases that will fall within the ambit of Council Directive 2003/8/EC of 27 January 2003 to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes, to mention but two examples.

However, since the EU Charter largely imports ECHR concepts, the right to legal aid would not be absolute. This is also reflected in the wording of Article 47 (see above: ‘in so far as such aid is necessary to ensure effective access to justice’). Individuals would need to demonstrate the particular reasons why a failure to grant legal aid would amount to a breach of Article 47, and why, in their particular circumstances, this is ‘necessary’. It is interesting to note the explanatory note to Article 47, which states:

“in Union law, the right to a fair hearing is not confined to disputes relating to civil law rights and obligations. That is one of the consequences of the fact that the Union is a community based on the rule of law. Nevertheless, in all respects other than their scope, the guarantees afforded by the ECHR apply in a similar way to the Union.”

Thus the reasoning in Maaouia v France falls away under the Charter. Disputes about issues the European Court of Human Rights has defined as concerning ‘public law’, such as immigration, fall squarely within the ambit of Article 47 as long as the member state is implementing EU law.

It is a well-established principle of EU law that detailed procedural rules governing actions for safeguarding an individual’s rights under EU law must not make it in practice impossible or excessively difficult to exercise rights conferred by EU law: Case 33/76 Rewe-Zentralfinanz and Rewe-Zentral [1976] ECR 1989, paragraph 5; Case C-432/05 Unibet [2007] ECR I-2271, paragraph 43; and Case C-268/06 Impact [2008] ECR I‑2483, paragraph 46. In the taxation case of Deutsche Energiehandels-und Beratungsgesellschaft mbH v Bundesrepublik Deutschland (‘D.E.B.’ – Case C-279/09), Article 47 of the EU Charter was considered by the ECJ with specific reference to the right to effective judicial protection. A domestic rule made the pursuit of a claim before the courts subject to advance payment of the costs of proceedings and/or to the assistance of a lawyer. The legal person in D.E.B. was unable to make that advance payment and was ineligible for legal aid. The referring court sought a preliminary ruling on whether the fact that a legal person is unable to qualify for legal aid renders the exercise of its rights impossible in practice in that access to a court was denied because it would be impossible to make the advance payment in respect of the costs of proceedings and to obtain the assistance of a lawyer. In ruling that it was not impossible for legal persons to rely on the principle of effective judicial protection and that aid granted pursuant to that principle may cover, inter alia, dispensation from advance payment of the costs of proceedings and/or the assistance of a lawyer, the ECJ gave the following detailed guidance:

- It is for the national court to ascertain whether the conditions for granting legal aid constitute a limitation on the right of access to the courts which undermines the very core of that right;

- whether those conditions pursue a legitimate aim;

- whether there is a reasonable relationship of proportionality between the means employed and the legitimate aim which it is sought to achieve.

- In making that assessment, the national court must take into consideration the subject-matter of the litigation;

- whether the applicant has a reasonable prospect of success;

- the importance of what is at stake for the applicant in the proceedings;

- the complexity of the applicable law and procedure; and

- the applicant’s ability to represent himself effectively.

- In order to assess proportionality, the national court may also take account of the amount of the costs of the proceedings that must be paid in advance and whether or not those costs might represent an insurmountable obstacle to access to the courts.

- The national court may take account of the individual / legal person’s circumstances, (including the form of the legal person in question and whether it is profit-making or non-profit-making; the financial capacity of the partners or shareholders; and the ability of those partners or shareholders to obtain the sums necessary to institute legal proceedings).

[paragraphs 59 – 62 of the judgment refer]

It is worth recalling that, in addition to on the whole not being eligible for legal aid, migrants must also now pay appeal lodgement fees. It may be arguable in certain cases grounded in EU law that the combination of factors including appeal lodgement fees, ineligibility for legal aid and the complex ever-changing Immigration Rules make it impossible or excessively difficult to exercise rights conferred by EU law.

Furthermore, a new line of authorities starting with Zambrano raises the tantalising possibility of a wider conception of EU citizenship and its interplay with fundamental rights, which might, in the future, extend the reach of Article 47 to a broader category of cases, including cases involving ‘static’ persons who nonetheless enjoy Citizenship of the Union. However it is clear that this highly unstable line of authorities is being refined progressively and has not yet reached its end point nor settled equilibrium.

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Related posts:

1. Jo Renshaw on the effect of LASPO
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I recently twisted Margaret Phelan’s arm into arranging for me to receive a Kindle copy of the latest (and greatest) edition Phelan and Gillespie’s Immigration Law Handbook, known to all immigration lawyers as the bench book for immigration law. I am well accustomed to thumbing through the hard copy version of Phelan but I confess to being a bit of a luddite when it comes to ebooks. Although I own both a Kindle and an iPad I rarely use them for reading actual books and never yet for a legal textbook. I had always thought that it would be impractical to look up statutory provisions in an electronic version without being able to skim and to skip large sections of the book in question, which is a lot harder to do electronically than when one can glance at the text one is skipping through.

Part of the impetus for this experiment was the increased size of the latest Phelan, which is even bigger and heavier than previous editions. It is simply impractical to carry a copy to far flung tribunals on the off chance it might be needed.

The publishers have now been kind enough to provide me with a Kindle copy. This can be used on almost any electronic device you care to name because Amazon go to great pains to ensure almost universal access to their wares. It is therefore useable on an iPad, an iPhone or on any Android tablet or phone, as well as on Amazon’s own Kindle devices. I tested it on my iPad but not on these other devices.

My initial ‘dry run’ impression was positive. The electronic contents page can be called up at any time for navigating to another part of the book, and there is a back button that takes the reader back to the last page viewed before an internal link within the book was followed. For example, this takes you back to the same page of the contents page you navigated from rather than back to the start of entire (quite long) contents sections. The same incredibly useful footnotes are found in the electronic version as in the paper version. However, the contents page is also the same as for the paper version and it is not hugely detailed. Statutes and statutory instruments include a section by section contents page at the start of the legal instrument in question but not so the Immigration Rules or European materials. For example, there is a link to the appendices for the Immigration Rules as a whole in the contents pages but not to individual appendices. This isn’t really an issue in the paper version as it is easy to flick through the pages, but this does not work quite so well in an electronic version.

Most importantly, it is up to date and accurate as of publication, unlike legislation.gov.uk.

A dry run in the comfort of my home is all very well, but would the electronic version be as trusty as the paper version when used under pressure in court?

My experience last week suggests that the electronic version is as easy to use as the paper version, at least for some ‘use case scenarios’, and given I carry my iPad anyway the weight of the extra electrons was worthwhile. When I urgently needed to look up a statutory reference I was able to easily and simply without relying on an internet connection and with access to the crucial, correct amendment and commencement information.

The Presenting Officer with no warning to me and no rule 24 notice suggested in the Upper Tribunal there was no jurisdiction to hear the appeal because of section 88A of the 2002 Act. Coming in after lunch, the judge rather implausibly claimed independently to have had the same thought. I was quickly able to access s.88A in Phelan while the judge was talking, check the invaluable footnotes to see which was the commencement order for the section then look it up on legislation.gov.uk. By the time the judge announced that the issue was an important one deserving of further consideration (when not raised by the ECO, the ECM, at the FTT, in grounds of appeal or in an r.24 notice?!) and that he would rise, I was able to say that was unnecessary and quote paragraph 4 of the relevant commencement order.

Without Phelan to hand, I would never have been able to find the commencement order in the time available. The client was impressed, I was able to avoid an adjournment and the PO was, bless him, rather put on the back foot. Most importantly of all, had I not had Phelan to hand the entire appeal could have been dismissed for want of jurisdiction because of the spurious and late legal point.

Electronic legal text books look like they are here to stay. My experience is that they can substitute for ‘the real thing’, at least if you know roughly what it is you are looking for. Get yours here (affiliate link).

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It is precisely those clients, the most vulnerable and unpopular ones, who were targeted by the Government in the evisceration of legal aid that took effect this month. This amounts to enforced disarmament of the weakest side in an adversarial system. The tenant facing eviction, the unemployed father mired in debt, the mother seeking contact with her children, the abandoned child seeking to permission to remain; none of these Everymen will be able to remedy a wrong committed against them. The changes are unconscionable, a clear attack not on the lawyers but on those we serve, the weakest and most vulnerable groups in society. It was easy to motivate oneself to anger.

Just as these changes take effect, though, yet further disembowelment of the already hollowed out corpse has been proposed. Rates for judicial review work are to be halved (on top of the recent 10% cut) and, not only that, will only be paid if a judge grants permission to proceed with the claim. A new residency test will inoculate government against legal challenge by new arrivals in this country. Contracting arrangements in criminal law will destroy the criminal Bar and remove choice of lawyer. Prisoners will be unable to challenge their conditions of detention.

Last time it was unambiguously the clients who suffered. This time it is the lawyers then, indirectly, the clients. Grayling’s vacuous comparison between a handful of criminal QCs and the Prime Minister’s salary when he introduced the ‘consultation’ was well debunked elsewhere but it is the tone and intent that matters. Not only are exactly those that most need the ability to challenge government and others to be denied public funding for their cases but the pool of lawyers specialising in such claims is to be decimated. This government does not want alleged criminals to have good defence lawyers, does not want poor or vulnerable people to be able to defend themselves and does not want unlawful government decisions to be challenged. The savings to be made are tiny and unnecessary. This is not a case of the baby being thrown out with the bath water, it is premeditated infanticide.

The proposals are out for consultation, but there seems precious little open-mindedness. Here is my response:

The well is already dry. To poison it for the future is both merciless and malevolent.

I find it harder to work up a good lather of anger for this consultation. It is too easily swatted aside as self interest. My overwhelming emotions are of sadness and regret that it has come to this. And despondency that so many committed colleagues past and present will become casualties on the battlefield. It is hard to see how the better medium sized solicitor firms will carry on and it is inevitable that the Bar will shrink. Examples of shell shocked responses by other practitioners can be found here, here, here and here.

Access to justice feels suddenly very precious and fragile. It has been revealed as a gift within the power of politicians to give and to take away. It puts me in mind of Atwood’s The Handmaid’s Tale and the short, sharp history of how women’s rights were taken away in a few all too easy steps. It is also a reminder of how important human rights laws are, of why they are under attack and by what interests.

THIS is why human rights for foreign nationals must be defended: twitter.com/AdamWagner1/st… (HT @adamwagner1)

— Free Movement (@freemvntblog) April 19, 2013

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Related posts:

1. Access to Justice
2. MoJ Proposals for legal aid cuts
3. Miscarriage of Justice: Wrongly Convicted Asylum Seekers and Trafficked Persons