I’d just like to say a few words initially to introduce myself. Although I am lucky enough to count myself as one of the students who conducted doctoral research at the Centre for Socio Legal Studies in Oxford, I started practising soon afterwards, as an immigration solicitor, mostly at Birnberg Peirce and Partners, a well known civil liberties firm, where I specialised in national security cases and HIV cases, amongst others. I have recently taken up a post as a lecturer here, and currently co-direct the Law Clinic with my colleague Frances Meyler. We are very grateful to Helen Stalford for her support and encouragement in our contribution to the issue.
Just to put things in contextDuring the late 1990s and early 2000s, there was a period of what can only be described as generosity, while at the same time, the Legal Services Commission also made significant attempts to control the quality of advice it paid for: e.g. “peer review”, “audit” and the required “accreditation” of individual advisers. The relative generosity was short-lived. The higher initial limits were decreased. Representation at most asylum interviews was no longer funded. The facility for “staged billing” was withdrawn: this was essential to ensure cash flow in a poorly remunerated and disbursement-heavy area of practice, where cases could take years to conclude. In 2007 the Graduated Fee Scheme was introduced (effectively, in many cases, a fixed-fee system), followed by a 10% cut in all civil legal aid fees in October 2011. Despite the significant retrenchments described, LASPOA 2012 nevertheless marks a new departure for immigration legal aid: it removes a whole tranche of immigration cases from the scope of legal aid altogether. As we will see, its impact on those affected will be profound.
This is to give you a flavour of the seriousness and complexity of issues that no longer fall within scope:Family Migration / reunion: here the issue is whether the state will allow parent and child, or partners (including spouses and civil partners) to be reunited. Other cases might involve dependent, vulnerable or elderly family members. Deportation / removal from the UK: Might involve a spouse / partner. If it involved deportation or removal of a parent or parents, the expectation might be that the children accompany their parent. In some cases - separating parent from child. Article 8 ECHR: right to respect for family and private life. Legally complicated.Unaccompanied minor children: eg may have come as asylum seekers but claim was unsuccessful and granted temporary right to remain until age of 18. May be in local authority care. Frances will talk more about their special position, and who might take responsibility for providing them with legal advice in the absence of legal aid.ECD: probably only where Article 8 rights or EU rights are the subject of the application / appeal, and in addition, the applicant will need to show that legal aid is necessary to give effect to their right to access to justice. This is to be judged 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.
Rather interesting and narrow list of types of applications that remain funded:Asylum, including article 3 (this will be the largest category by far) Prioritising of certain rights over others. Implicit in the fact some rights are qualified?Applications based on domestic violence by those granted a family permit / temporary stay on the basis of marriageTrafficking convention (but high threshold)SIAC (Special Immigration Appeals Commission – national security cases, likely to be secret evidence etc. JR / Habeas (NB special restrictions that apply only to immigration cases!)
Front loading works! We know this from our own professional practice. Saves money in the long runThis is the government’s own assessment of the impact:See slide!Govt also concluded that the reforms will reduce access to justice, reduce fairness of dispute resolution and impose wide socio-economic costs such as an increase in crime, a reduction of social cohesion and reduced efficiency of other government services. According to the All-Party Parliamentary Review on Migration, the legal aid reforms will result in an increased demand at MPs surgeries, higher numbers of litigants in person and a potential increase in the number of foreign nationals with irregular status.Immigration practitioners, the Law Society and Judges are united in their view litigants in person require extra court time, especially if they require an interpreter
A UK-based sponsor wishing to sponsor a non-EEA partner is now required to have a minimum income of £18,600 per annum, with additional amounts for each child.Elderly dependent relatives, including parents, who wish to join their adult child in the UK must meet new requirements. They must demonstrate they require long term personal care, and that this can only be provided by their relative in the UK.There are complicated evidential requirements, and fees for making applications are steep. There are rules of evidence which restrict, in certain circumstances, new evidence from being submitted in support of an appeal, so it is vital that applicants understand the documents they need to submit at the time they make their initial application. There are, in addition, new rules governing the position of those facing deportation, which again are almost impossible for a lay person to comprehend.The Government also attempted to oust the court’s role in reviewing the proportionality of article 8 decisions (unsuccessfully it now appears), and created an “exceptional” category for those applying on the basis of Article 8 ECHR in certain restricted circumstances.These new Rules are in the early stages of examination by the courts, and their precise meaning and remit remains unclear. No legal aid to assist in the testing and stretching process!
RATIONALE SET OUT IN THE GREEN PAPER - used by the government to decide which cases stay within and which ones are taken out of the scope of legal aid.True, issues of life/ death not at stake here, as they are in asylum, art 3 casesTrue that some migrants are making a ‘free and personal choice’ when they choose to visit / work / study in the UK, but many of these would not qualify for LA anyway, and this rationale is being used to justify denying LA to those where ‘free/personal choice’ has little, if any, role to play at all.For many, if not all of the above categories of migrants, losing their case will mean the sponsor (often settled / British citizen) will have no option but to leave the UK to continue family life abroad, which some believe amounts to ‘constructive deportation’ of citizens / people who have a permanent right to reside in the UK. - When considering article 8 ECHR, the impact of relocation on rights attaching to the British citizenship of any family member should weigh very heavily in the proportionality balancing exercise (Huang 2007 UKHL 11)
Let’s now look at what the House of Lords thinks about the importance of the issues at stake in Family Migration cases.
Given that the House of Lords / Supreme Court place such a high premium on the importance of the issues at stake, it seems surprising that Family Migration cases have been excluded from scope along with other immigration cases, which I acknowledge may involve ‘free and personal choices’. It seems to me that the ‘baby is being thrown out with the bathwater’.
The same rationale seems to have led to the opposite conclusion in public law family cases, where the issues at stake are very similar: (REFER)- All the same boxes are ticked in family migration cases, AND YET, opposite conclusions were reached.
Section 55 of the Borders, Citizenship and Immigration Act 2009 requires immigration authorities and the SSHD to discharge their functions ‘having regard to safeguard and promote the welfare of children who are in the UK’In ZH (Tanzania) the Supreme Court held that the child’s best interests must be taken into account as ‘a primary consideration’ in immigration cases where children are in the UK. Lord Kerr held: “where the best interests of the child clearly favour a certain course, that course should be followed unless countervailing reasons of considerable force displace them.” In another case; EM (Lebanon), Baroness Hale observed:The best interests of the child must be separately considered In some cases, separate representation for the child may be essentialFrom 1 April, there is no legal aid for such cases, even for children.How will the best interests of children be ascertained?Who will represent the children?Govt plans to exempt loc auth’s from regulation to enable them to represent children extremely worrying given obvious conflict of interest in a climate where loc auth funds are overstretched: loc auth has to continue to provide for the child if s/he remains in the UK!
VENUE – the IAC highly adversarial (indeed, in my experience, even often aggressively confrontational) unlike other Chambers, e.g. SEC. Ill equipped to deal with litigants-in-person. If the Chamber is to evolve into a more inquisitorial forum, it will require a change of the Procedure Rules and supporting caselaw as well as a fundamental culture change amongst the immigration judiciary as well as representatives on both sides. Many think this is impossible and undesirable. VULNERABILITYBackground, socio-economic status, language barriers, past experience (trafficking, trauma, mental illness)COMPLEXITY OF THE LAW Highly complex interplay of Legislation, Immigration Rules, policy statements, Ministerial statements policy instructions and article 8 ECHR law:Lord Lester of Herne Hill (Liberal Democrat) Hansard 12 December 2012“My Lords... My wife is an immigration and asylum judge and from time to time she and her colleagues are sent for training in order to try to understand what the Home Office is producing. I hope that she does not mind my mentioning this, but she and her colleagues find themselves in a quite terrible situation in trying to understand the Kafkaesque material that flows out of the Home Office. There are two people in the Chamber
who will understand these amendments- one is the Minister and the other is my noble friend Lord Avebury. I do not understand them. For meto understand them I would have to read the three different Acts of Parliament, all of which are put in play in these amendments, and I would have to listen and read again what has been said by the Minister. The net result would be that we will continue to have a network of regulations that it is quite impossible for ordinary men and women, including Members of this House, to understand unless and until the Home Office does what we have repeatedly asked it to do for the past many years-to consolidate the legislation into a single measure that can be understood by users, whether they be would-be immigrants, refugees or asylum seekers, or lawyers, NGOs or the public. At the moment it is almost incomprehensible and lacks, therefore, legal clarity. I very much hope that, when I do understand these amendments, what I have just said may be listened to by the Home Secretary and other Ministers who will instruct their officials, please, to come up with consolidating legislation that we can understand.”As far as we are aware to date, that plea has fallen on deaf ears...
In this context, it seems to me that the legal aid cuts in Family Migration cases amount, to borrow the words of a former colleague of mine (Colin Yeo, barrister at Rennaissance Chambers) a ‘unilateral and enforced disarmament of the weakest side in a highly adversarial system’.
LASPO and FamilyMigrantsFrances Meyler and Dr Sarah WoodhouseDirectorsLiverpool Law ClinicSchool of Law & Social Justice
Seismic Change• Legal aid provision became more generousduring late 1990s and early 2000s• Almost all immigration cases funded• But increased controls on quality by the LegalServices Commission• Some cuts from 2004• LASPO: a radical departure
No longer fundedAdvice and representation, includingon appeal, in relation to:• Family migration / reunion• Deportation or removal fromthe UK• Article 8 ECHR• Unaccompanied migrant children (non-asylum)? Exceptional Cases Determination: probably onlyapplies in very limited circumstances
Impact• 53,000 fewer cases will receive legal aid funding inthe immigration category;• 92% reduction in the number of individuals receivingservices in relation to an initial application;• 20% less in relation to preparation andrepresentation for appeal hearings.Impact Assessment, Annex A: Scope, para 10.
Quality Issues• Migrants unable to recognise poor qualityadvice• LSC de facto regulator but not in private cases• Concerns persist on the professional bodies’ability to regulate immigration services
Changes to the ImmigrationRules• New income requirement of £18,600, additional amounts foreach child• Complicated rules about how to establish incomePartners• To qualify, must now “require long-term personal care toperform everyday tasks” and be unable to “obtain therequired level of care in the country where they are living”.Elderlydependentrelatives• Attempt to define the operation of Article 8 ECHRDeportation
‘Importance of the issue’‘Free and personal choice’ ?• Joining/remaining w spouse/child/parent• Should children leave with parent?• Should children leave when turn 18?• Fate of unaccompanied children• Should long-term UK residents leave afterserving a criminal sentence in the UK?• Bringing an elderly dependent relative‘Constructive deportation’ of citizens
Huang  UKHL 11“Human beings are social animals. They dependon others. Their family, or extended family, is thegroup on which many people most heavilydepend, socially, emotionally and oftenfinancially. There comes a point at which, forsome, prolonged and unavoidable separationfrom this group seriously inhibits their ability tolive full andfulfilling lives.”
EB (Kosovo)  UKHL 41“it will rarely be proportionate to uphold an order forremoval of a spouse if there is a close and genuinebond with the other spouse and that spouse cannotreasonably be expected to follow the removed spouseto the country of removal, or if the effect of the orderis to sever a genuine and subsisting relationshipbetween parent and child.”
‘Integrity of the family unit’Public family law / family migration parallels:• State intervention: public authorities bringingproceedings affecting the integrity of the family• Severing family ties• Separation across continents, not just countiesRationale for retention in public family law:• Extremely important issues at stake• Emotional nature of subject-matter• Personal circumstances of individualsAll make it difficult to present own case• No viable alternatives to legal aid
Children-Section 55 Borders Act 2009: need to safeguard andpromote welfare of children in the UK-ZH Tanzania UKSC 4 :• Best interests of the child a ‘primary consideration’;• where best interests clear, should usually prevail• Child’s interests separately considered• Child may require separate representation- Who will obtain info, ascertain bestinterests, represent?Local authorities?
‘Ability to present own case’• Venue• Vulnerability• Complexity of the law:- “no area is more complex than the wholebusiness of the Immigration Rules and theprocedures surrounding them”[Lord Taylor of Holbeach, Hansard, col. 1087]- Recent seismic changes to theImmigration Rules
Conclusion• Context:- Changing the Immigration Rules 2012- Appeal lodgement fees make access to justiceexpensive- Quality of private representation often poor- Scope appeal rights, abolishing family visit appeals 2014• Rationale does not justify legal aid cuts in FM cases:• Importance of issues at stake• Welfare of children• Migrants poorly equipped to present own case• Forum highly adversarial• Immigration law particularly complex