Recently, after being introduced to someone, I mentioned that I work on statelessness policy. When faced with the confused look I am growing to recognise when I tell people about my work, I began to explain: some people don’t have citizenship of any country. He (thinking hipster-type ‘citizens of the world’) responded: ‘Wow, cool!’ But the reality of statelessness is decidedly ‘uncool’. In today’s world, not having a nationality often means a very difficult life.
Until 2013, stateless persons had no option to remain lawfully in the UK based specifically on their statelessness, although some were rightly recognised as stateless refugees. Others were left living in limbo – unable to obtain permission to stay or to work, but unable lawfully to leave the UK. The Government detained some stateless persons for lengthy periods whilst making futile efforts to remove them (or in some cases taking little or no action). (For more about arbitrary detention of stateless persons in the UK, see the recently published report of the European Network on Statelessness, Protecting Stateless Persons from Arbitrary Detention in the United Kingdom). Stateless people often end up destitute and face numerous hardships.
In April 2013, following research and advocacy by Asylum Aid and UNHCR, the Government introduced Part 14 of the Immigration Rules (and see the related policy instruction, revised in 2016). Although this was a very commendable step, the statelessness determination procedure has some significant flaws. This article will discuss one of these flaws – the lack of legal aid – and will suggest that legal advisers should apply for exceptional case funding whenever possible.
Statelessness applications are complex – both factually and legally. The applicant is required to prove a negative, which is difficult in the best of circumstances. As a first step, applicants must demonstrate that, in accordance with the 1954 Convention relating to the Status of Stateless Persons and the Immigration Rules, they are not recognised as a national of any country under operation of its law. This often requires evidence that does not exist (such as a birth certificate where none was issued), contact with foreign governments and expert reports on other countries’ nationality laws. This means it is difficult to succeed with statelessness applications without competent legal advice. The success rate for applications under Part 14 of the Immigration Rules from April 2013-March 2016 was 5.2%. (For further information, see Asylum Aid’s Policy Briefing of September 2016, The UK’s Approach to Statelessness: Need for Fair and Timely Decisions).
UNHCR recommends in its Handbook on Protection of Stateless Persons that free legal assistance be made available for stateless applicants who cannot afford to pay for it. Despite this, and although legal aid is available for asylum and humanitarian protection applications in the UK, statelessness applications under Part 14 of the Immigration Rules are not included in the scope of legal aid, as per Schedule 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). Amendment to Schedule 1 is, of course, possible – indeed, it was amended in accordance with the Modern Slavery Act 2015 to allow legal aid for victims of slavery, servitude, or forced or compulsory labour (Section 32A). Unfortunately, however, applications under Part 14 of the Immigration Rules remain out of scope of legal aid.
As discussed in the recently published Statelessness and Applications for Leave to Remain: A Best Practice Guide (Liverpool Law Clinic and the Immigration Law Practitioners’ Association, November 2016), stateless persons or persons assisting them can apply for exceptional case funding (subject to meeting means and merits tests) (see Section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012). If exceptional case funding is granted, the case can be funded through legal aid. Applications for exceptional case funding for immigration cases currently have a high success rate – approximately 71-74% of such applications decided in the first half of 2016 were granted. For more on this, see Alison Harvey’s “Exceptional Case Funding – Apply!” (in the November 2016 Immigration Law Practitioners’ Association mailing).
Despite its potential availability, exceptional case funding is not an adequate alternative for many applicants. As practitioners are well aware, a significant amount of work is required to apply for exceptional case funding. Many legal aid advisers, who already struggle to comply with onerous legal aid requirements, cannot risk doing work which may not be funded or is underfunded. For statelessness applications, there is the additional barrier that many legal advisers do not have expertise with the Immigration Rules relating to statelessness, and preparing an exceptional case funding application will require them to familiarise themselves with a new area of law and regulations. Another difficulty is that practitioners receive remuneration only when the case is concluded. For statelessness cases, this may be several years due to serious delays in some cases – applicants may wait for a decision for two or three years (or more, particularly where the case goes to judicial review).
Although legal aid is available for judicial review of refusal of statelessness applications, for various reasons, judicial review is not an adequate remedy. (There is no free-standing right of appeal for applications under Part 14 – another problematic feature of the UK’s statelessness determination procedure). First, it may be difficult to find a lawyer to take on the judicial review case – it is risky for solicitors to do judicial review applications, which will not be funded if the Administrative Court does not grant permission for the case to proceed or a costs order is not granted or the Legal Aid Agency does not exercise its discretion and make payment. Further, judicial review does not, of course, afford a comprehensive review of the facts, and by the judicial review stage, the lack of legal advice may have resulted in irreparable damage to the case.
Despite the obstacles, until legal aid becomes available as a matter of course, stateless persons and those assisting them are advised to apply for exceptional case funding where the financial thresholds for free legal assistance and other requirements are met. Under the Solicitors Regulation Authority’s Code of Conduct (2011, Section 1B, 1.16), solicitors are obliged to advise their clients when public funding may be available. Advisers regulated by the Office of the Immigration Services Commissioner are also recommended to advise clients of the possibility of public funding. Note, for example, the OISC recommended client care letter for fee-paying clients:
“If you are on a low income or receiving welfare benefits, you may qualify for Legal Help under the Community Legal Services Scheme to assist you with your case. Please note that my organisation does not represent clients free under that scheme. If therefore you would prefer to be represented by the Community Legal Services adviser, please let me know immediately and I shall tell you where you can get possible alternative representation.”
Thus, legal advisers should ensure that such clients are aware of the possibility of exceptional case funding and should apply for it themselves or refer the client to someone who can do so, unless the client gives informed consent to proceed without pursuing exceptional case funding on a fee-paying basis.
Applications for exceptional case funding should follow Legal Aid Agency guidance and highlight, at a minimum:
- basic facts and circumstances of the client’s case;
- lack of means and evidence to support this;
- the merits of the application (or request level of funding required to ascertain merits);
- the internationally recognised right to nationality and the UK’s obligations under the 1954 Convention relating to the Status of Stateless Persons;
- the complexity of statelessness and nationality law (domestic, foreign, and international);
- difficulties acquiring evidence to prove lack of nationality;
- the need for expert evidence or contact with foreign governments;
- problems relating to the (38 page!) statelessness application form [FLR(S)];
- the lack of a free-standing appeal against refusal of a statelessness application;
- any relevant personal characteristics of the applicant such as mental health conditions, lack of English language skills or education, minority and best interests of children (for stateless children, exceptional case funding applications should refer specifically to Section 1.4 of the 2016 asylum policy instruction relating to applications under Part 14, which states that the same procedural guarantees that apply in asylum applications relating to children apply in the statelessness context, including legal representation)
For further information, please see the Best Practice Guide, Sections A.5.d and C.1.
Applications for exceptional case funding can be made by anyone – including the applicant or a volunteer who is not legally qualified. It would be best for such an application to be made with the support of a qualified legal advisor to avoid any pitfalls and improve chances of success, but it is not obligatory. Once exceptional case funding is granted, a legal adviser working under a legal aid contract can work on the case. We are aware of one successful application for exceptional case funding in a statelessness case under Part 14 of the Immigration Rules (we will re-post today an anonymised copy of this application to the Refugee Legal Group). Asylum Aid is currently applying for exceptional case funding in other statelessness cases.
If exceptional case funding is granted, the Legal Aid Agency provides remuneration in accordance with the Civil Legal Aid (Remuneration) Regulations 2013. A fixed fee of £234 is paid for the whole case [see Schedule 1, Part 2, Table 4(a)], unless the case reaches the ‘escape fee’ threshold. To calculate this, at the end of the case, the legal adviser must multiply the number of hours spent (in preparation, attendance or advocacy) times the mandated hourly rate of £52.65 [London rates; outside London, the rate is £48.24/hour – see Schedule 1, Part 2, Table 7(a)]. The legal adviser also adds in any relevant travel and waiting time and letters and calls at the standard rates. If the tally is greater than £702 (£234 x 3) (eg, if a London-based legal adviser spends more than 13.4 hours preparing a case), then escape fees apply – the Legal Aid Agency should pay the standard hourly rates for all hours worked. The above does not include disbursements (eg, interpreter’s fee, expert’s fees etc) – for which there is a maximum limit of £400 (extendable by way of an application to the Legal Aid Agency). Due to their complexity, it is quite likely the escape fee threshold will be reached in some statelessness cases. Legal advisers should carefully document and justify their time to avoid reductions by the Legal Aid Agency.
The other alternative for stateless persons at present is to seek assistance from an organisation providing free legal assistance for statelessness applications through grant funding or as part of their general work. Asylum Aid and Liverpool Law Clinic are able to take a limited number of statelessness cases through dedicated statelessness legal assistance projects, and other organisations are able to take such cases at times. Our hope is that we (Asylum Aid and Liverpool Law Clinic, in collaboration with other organisations) will persuade the government to bring statelessness applications within scope of legal aid. To this end, we would be grateful if anyone who succeeds with an exceptional case funding application for a statelessness case would let us know, so that we can refer to this in our advocacy.
To conclude – it was a very positive step for the Government to introduce Part 14 of the Immigration Rules. These provisions offer a new life to stateless persons who are granted status under them. However, simply to introduce a statelessness determination procedure is not enough. For our legal system to be fair and accessible to all regardless of level of wealth, there must be sufficient procedural and other guarantees. Applicants without means to pay must have a realistic opportunity of obtaining free legal assistance. There are significant barriers to obtaining exceptional case funding, and other options for free legal assistance are limited. We encourage legal advisers to use exceptional case funding whenever possible until the government brings statelessness applications in scope of legal aid.
- Legal Policy Officer, Asylum Aid. Co-authors: Dr Sarah Woodhouse and Judith Carter of Liverpool Law Clinic (authors of Statelessness and applications for leave to remain: a Best Practice Guide, Liverpool Law Clinic and Immigration Law Practitioners’ Association, November 2016).
Thanks to Solange Valdez of the Project for the Registration of Children as British Citizens, Ian Kane of Asylum Aid, and Alison Harvey of the Immigration Law Practitioners’ Association for helpful contributions to this article.
Joint Submission to the Human Rights Council at the 27th Session of the Universal Periodic Review, United Kingdom (Migrants Resource Centre, University of Liverpool Law Clinic, European Network on Statelessness, and Institute on Statelessness and Inclusion, September 2016)