Access to Justice: briefing for Westminster Hall debate


Legal Aid

There is no automatic entitlement for children to access legal aid. For refugee, asylum-seeking and migrant children, their status in the UK means they are more likely to require legal advice for immigration or asylum cases, or to enforce other rights in the UK. Legal aid is available for adults and children under the Legal Aid Sentencing and Punishment of Offenders Act for asylum, dependent on a means and merits test, for victims of human trafficking who have a positive reasonable grounds decision and have not received a negative conclusive grounds decision, and to challenge the decision of a public authority, for example in an age assessment. However, even where legal aid is available it can be limited by lack of available providers, or the providers’ capacity.

Legal aid is not routinely available for cases that relate to a child’s family life, including former unaccompanied asylum-seeking children who seek to rely on the strength of their ties to the UK as young adults, or children in a family who wish to put forward a case on the length of time they have spent in the UK. Legal aid is not generally available for family reunion or citizenship applications, and there are no particular provisions for children to access legal aid.

Separated children

The lack of available legal aid providers is particularly concerning for children, who may have to travel a considerable distance in order to meet with their legal representative. Separated children are reliant on the local authority to ensure that they have access to a legal aid provider, or to fund legal advice where there is no legal aid available.

Case study

R, a Kenyan national, arrived in the United Kingdom aged 9 as a dependent on his father’s student visa. He was taken into care following domestic violence at home but the local authority did not take steps to regularise his immigration status until he was 16, when he was granted one year’s discretionary leave to remain. At 17 he could not find a solicitor to help him apply for further leave to remain, because there was no legal aid for this, and his leave lapsed. At 18 he was referred to Coram Children’s Legal Centre who helped R persuade the local authority to pay for him to see a solicitor. He was then able to make an application and received leave to remain on a pathway to settlement. He received three As at AS level and is currently applying to study at Oxford or UCL.

The National Transfer Scheme for unaccompanied asylum-seeking children may have a profound impact on access to justice for those children who are transferred to a different local authority. Access to high-quality legal advice is varied across the country; there are few immigration and asylum providers in some areas, with Suffolk reported to have no immigration providers. 1See Law Gazette, 18 April 2016, https://www.lawgazette.co.uk/news/legal-aid-cuts-creating-new-advice-deserts/5054789.article In December 2015, the Government reported on not-for-profit organisations and found the majority of legal advice was provided within London.2Ames, Dawes and Hitchcock, “Survey of Not-for-Profit Legal Advice Providers in England and Wales”, MOJ 2015 This matched the findings of the Justice Select Committee.3Justice Select Committee Eighth Report on the Impact of changes to civil legal aid under Part I of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, 4 March 2015 http://www.publications.parliament.uk/pa/cm201415/cmselect/cmjust/311/31108.htm

The decision to transfer is taken by the first local authority a child has contact with, where that local authority has an unaccompanied asylum-seeking child population of greater than 0.07% of the total child population, and it is in the child’s best interests.4See Interim National Transfer Protocol, version 0.8 http://adcs.org.uk/assets/documentation/Draft_National_UASC_transfer_protocol_v0_8.pdf However, an initial best interests assessment will not take into account whether there is sufficient legal advice available in any receiving local authority, as the assessment is conducted by the sending local authority without reference to where a child may be accommodated. Additionally, RCC members are aware of children who have already established relationships with lawyers who are then transferred to other parts of the country where they can no longer maintain the connection. One RCC member advocated for a young person who had an asylum lawyer in West London, but who was then told he was to be transferred outside London.

Asylum-seeking children are being denied the opportunity to present their case to its fullest. Even prior to the National Transfer Scheme, the Joint Committee for Human Rights commented that children were being denied access to justice and that the Government should commit to a review of children’s access to justice, in particular separated and trafficked children.5House of Commons Justice Committee (2015) Impact of Changes to Civil Legal Aid Under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act (2012). 8th Report of Session, 2014-2015

Children with families

Children who are part of a family unit may also struggle to access legal advice in order to enforce their rights. The lack of legal aid for Article 8 cases based on family and private life has had a clear impact on whether children are able to pursue their family life in the UK, or whether their case is adequately presented to the Home Office. The combination of a lack of legal aid, increased fees for applications and tribunal hearings may result in children being left in limbo without immigration status in the UK, negatively impacting on their right to healthcare, education and their sense of permanence and stability. They also limit a child’s ability to participate in proceedings which relate to them.6UNCRC, concluding observations of the 5th periodic review on the United Kingdom, June 2016 page 7 Children in families may also be in only loose family arrangements through kinship care, which can limit their access to legal aid and to family funds to pay for representation. The lack of routine legal aid to ensure that children have access to advice about their immigration status can exacerbate situations of exploitation or family conflict.

Exceptional case funding (ECF)

The exceptional case funding “safety net” is inadequate for those who apply. Although grant rates have increased following litigation, the number of applications made are still considerably below the numbers anticipated during the passage of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012.7See Legal Action Group, Justice in Freefall, January 2017 p10 http://www.lag.org.uk/media/278391/december-january_lag_report.pdf The application form for exceptional funding  is 14 pages long and requires the applicant to apply human rights and EU law principles to their case to establish the need for legal aid. This is an insurmountable barrier for most children, and the majority of applications are completed by solicitors,8PLP, Exceptional Funding: A figleaf not a safeguard, 2013 with only 20% made by individuals.9Legal aid statistics bulletin April-June 2016 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/556216/legal-aid-statistics-bulletin-apr-to-jun-2016.pdf However, given that a solicitor will only be paid if the application is successful, there is a further barrier to making an application particularly where a child’s case is complex or requires investigation. An FOI by an RCC member in February 2016 revealed that children make far fewer applications for exceptional case funding than adults, with only 20 applications being made by someone under 18 between October 2013 and September 2015.

Other costs

Access to justice is also impeded by other fees, including fees for immigration and citizenship applications, as well as fees to access courts and tribunals. The move to increase tribunal fees by 500% was met with severe criticism of the chilling effect on access to justice and has now been paused. The Government should be congratulated for acknowledging these concerns and including additional fee exemptions for:

  • Those in receipt of a fee waiver for the initial application;
  • Parents of children receiving support from local authorities;
  • Children bringing appeals where they are in local authority care;
  • Those appealing a refusal of asylum or humanitarian protection.10Statement from Rt Hon Sir Oliver Heald QC MP, 25 November 2016 https://www.gov.uk/government/speeches/courts-and-tribunals-update 

The RCC would like the Government to permanently halt disproportionate fee increases, and to commit to limiting fees to access the courts and tribunal services as well as maintaining the broader fee exemptions introduced.

Appeals from abroad

The “remove first, appeal later” provisions in the Immigration Act 2014, which were extended to include all immigration appeals by the Immigration Act 2016 have a damaging impact on access to justice by seriously impeding an individual or family’s ability to put forward a positive case. There are insufficient provisions for someone actually to attend their appeal, amounting to a wholesale denial of justice for those affected. The removal of an adult from a family pending appeal will cause severe disruption to family life, may limit the earning capacity of the other adult where there are children, and is damaging to children who are deprived of their parent. The removal of an entire family in these circumstances is a disproportionate interference in family life, particularly when considering the obligation in section 55 Borders, Citizenship and Immigration Act to safeguard and promote the welfare of the child. The RCC raised these objections during the passage of the 2016 Immigration Act.11See previous briefing at http://www.refugeechildrensconsortium.org.uk/files/RCC_ImmigrationBillHoLReportStage_Appeals_BestInterestChildern_Amendment114_FINAL.pdf Where someone is unable to afford to instruct a lawyer, it is unclear how they would be in a position to attend their appeal and effectively represent themselves.

Recommendations

  • It is critical that the Government review of the impact of LASPO 2012 goes ahead. This should include input from stakeholders, and should consider the impact on children’s access to justice.
  • A child rights impact assessment of measures which restrict access to court and tribunals through increases to fees and remove first provisions.
  • Restoring legal aid to children’s cases would cost an estimated £7 million; 12Based on data provided by the Ministry of Justice on 10 October 2011 in response to a Freedom of Information Act request made jointly by JustRights and the Children’s Society. the Ministry of Justice should urgently consider restoring legal aid to immigration and asylum cases involving separated children, which would cost an estimated £1.1m13Based on data provided by the Ministry of Justice on 10 October 2011 in response to a Freedom of Information Act request made jointly by JustRights and the Children’s Society.
  • The Exceptional Case Funding system should be made child-friendly, and there should be a presumption in favour of a grant for children’s applications.
  • Local authorities should promote access to legal advice for all children in their care, particularly where children have insecure immigration status, including applications which are not routinely funded through Legal Aid.

References   [ + ]

1. See Law Gazette, 18 April 2016, https://www.lawgazette.co.uk/news/legal-aid-cuts-creating-new-advice-deserts/5054789.article
2. Ames, Dawes and Hitchcock, “Survey of Not-for-Profit Legal Advice Providers in England and Wales”, MOJ 2015
3. Justice Select Committee Eighth Report on the Impact of changes to civil legal aid under Part I of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, 4 March 2015 http://www.publications.parliament.uk/pa/cm201415/cmselect/cmjust/311/31108.htm
4. See Interim National Transfer Protocol, version 0.8 http://adcs.org.uk/assets/documentation/Draft_National_UASC_transfer_protocol_v0_8.pdf
5. House of Commons Justice Committee (2015) Impact of Changes to Civil Legal Aid Under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act (2012). 8th Report of Session, 2014-2015
6. UNCRC, concluding observations of the 5th periodic review on the United Kingdom, June 2016 page 7
7. See Legal Action Group, Justice in Freefall, January 2017 p10 http://www.lag.org.uk/media/278391/december-january_lag_report.pdf
8. PLP, Exceptional Funding: A figleaf not a safeguard, 2013
9. Legal aid statistics bulletin April-June 2016 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/556216/legal-aid-statistics-bulletin-apr-to-jun-2016.pdf
10. Statement from Rt Hon Sir Oliver Heald QC MP, 25 November 2016 https://www.gov.uk/government/speeches/courts-and-tribunals-update 
11. See previous briefing at http://www.refugeechildrensconsortium.org.uk/files/RCC_ImmigrationBillHoLReportStage_Appeals_BestInterestChildern_Amendment114_FINAL.pdf
12, 13. Based on data provided by the Ministry of Justice on 10 October 2011 in response to a Freedom of Information Act request made jointly by JustRights and the Children’s Society.