If the cuts to the scope of legal aid brought by LASPO 2012 have been significant, the cuts proposed by the Ministry of Justice in the recent consultation “Transforming legal aid: delivering a more credible and efficient system” would be severe.

It is of particular concern that the Government has seen fit to make proposals for changes by secondary legislation and contract amendment, so soon after the provisions of LASPO have taken effect, without any Parliamentary scrutiny. 

The key proposals that will affect the fields of asylum and immigration include:

1)     Reforms to prison law to ensure that legal aid is not available to matters that do not justify the use of public funds such as treatment issues, which would affect individuals held in prison at the end of their criminal sentence under immigration powers.

2)     The introduction of a residence test for civil legal aid claimants of 12 months. The proposal includes an exception for asylum-seekers considered to be “lawfully present” in the UK.

3)     Funding for an application for judicial review to be granted only if permission is granted by the Court (but that reasonable disbursements should be payable in any event).

4)     Removing legal aid for all cases assessed as having “borderline” prospects of success.

5)     To remove the 35% uplift in provider legal aid fees in immigration and asylum appeals.

6)     To reduce fees paid to experts in civil cases by 20%.

The Government welcomes responses to questions set out in the consultation by midnight on Tuesday 4 June 2013 via email to legalaidreformmoj@justice.gsi.gov.uk or in hard copy to Annette Cowell, Legal Aid Reform, Ministry of Justice, 102 Petty France, London, SW1H9AJ. The Government will respond to the consultation in autumn 2013.

ILPA has prepared a comprehensive response which can be viewed on its website.

Taking each of the above-mentioned proposals in turn, key concerns include:

Proposal 1: Limiting legal aid for detainees

Detention under immigration powers is often already lengthy and it is not subject to judicial oversight, unless the detainee initiates proceedings. The treatment of a detainee, particularly for those who suffer from poor mental health and past victims of torture, is often a source of concern. There will be no legal aid to challenge, for instance, discrimination in detention. Without legal aid, such individuals will be left without any source of protection.

Proposal 2: Residence test

A main difficulty with this proposal is that the lawfulness of a person’s residence may be the very matter that is in issue in the proceedings for which legal aid is required. The Secretary of State has introduced rules and regulations that entitle those who have not lived in the UK lawfully to regularise their stay. To deny such individuals legal aid, seems to render those entitlements redundant.

The proposal will exclude individuals who are not “lawfully resident” in the UK but have children, partners or other family members who are lawfully in the UK, individuals subject to removal directions where they claim removal will breach their human rights, trafficking victims who are not making an asylum claim, children whose age is disputed, individuals who have been wrongfully removed from the UK, individuals who came to the UK temporarily but whose circumstances have changed, individuals who have been unlawfully detained, those liable to be removed to an EU member state under the Dublin II Regulation even though they claim this will breach their human rights.

With regard to the exception for asylum-seekers it is not clear whether an individual would receive legal aid to make a fresh claim or whether an individual who has been granted humanitarian or discretionary leave will be considered to be lawfully resident in the UK before the completion of 12 months.

Under this proposal, individuals could be denied access to justice when decisions are made that they have the right to challenge. The proposal will have a disproportionate impact on the poor, marginalised and vulnerable, and has the potential to be discriminatory in its impact. It will undermine the principle of equality before the law, a basic tenet of the rule of law.

There is a risk of the denial of an effective remedy under Article 13 of the European Convention on Human Rights, the right to a fair hearing, which can include the right to legal aid, under Article 6 ECHR, and corresponding rights under Article 47 of the Charter of Fundamental Rights of the European Union, which includes the guarantee that legal aid shall be made available to those who lack sufficient resources insofar as such aid is necessary to ensure effective access to justice.

Other rights affected could include the right to respect for a private and family life under Article 8 ECHR, which in turn includes respecting the Convention on the Rights of the Child, and the prohibition of discrimination under Article 14 ECHR. 

Proposal 3: No legal aid for JR until permission stage

A principal concern is that the Executive, without parliamentary scrutiny, is putting forward this proposal, which gives the appearance of the Government trying to limit the number of challenges made to the exercise of its power over individuals. There is arguably a conflict of interest.

The merits of a case often change before the permission stage, for instance there might be a change in the law or the UKBA might concede a case. The proposals could exclude individuals facing removal by charter flight who are forced to apply for an injunction to the High Court and/or those who have cases stayed behind a test case where the permission stage might never be reached.

There will be an increase in litigants in person, which risks increased court time and resources. This will also undermine the principle of equality before the law and the rule of law.

Proposal 4: No legal aid for borderline cases

Measuring the prospects of success is not an exact science. It is often difficult to assess the prospects of success until a case is fully prepared. The field of immigration and asylum is always developing and therefore even if a case is considered to have “borderline” prospects of success because of, for instance, an authority of a higher court, this does not mean that there is no merit in pursuing the claim. There are often new authorities that can affect the prospects of success during the course of proceedings. It is also very often in the public interest to pursue a claim where there are borderline prospects of success, if anything to obtain clarification in an area of law which involves claims for protecting the life and liberty of a person. Again there is likely to be an increase in the number of litigants in person.

Proposal 5: Reducing fees for representatives

There has already been a recent reduction in fees. Further reducing fees leads to a risk of providers of services withdrawing from legal aid work and, again, a risk of increasing the number of litigants in person. 

Proposal 6: Reducing fees for experts

Expert evidence is often key, in particular in asylum cases, e.g. where country experts are asked to comment on the country situation in a particular country, medical experts are asked to provide evidence and/or evidence is required from independent social-workers where there is an age-dispute potentially affecting a child or where a decision of the UKBA affects a child’s best interests.

The principal reasoning behind the proposals appears to be to save money. Yet ultimately, the changes would increase the number of litigants in person thus increasing costs, and risk undermining fundamental rights, access to justice and the rule of law.