For the fourteenth of my stories of injustice I am turning again to the real life problems encountered on a daily basis by front-line advisory services. I describe three very typical cases. In each of them something very important is at stake, central to their future life and happiness. I have anonymised the people concerned.
The Greater Manchester Immigration Aid Unit (GMIAU), who sent us these cases, told the Bach Commission:
We see many people who have significant human rights immigration problems which, if not dealt with properly, will have consequences that will affect them for life, and who no longer have access to legal aid as a result of LASPO.
- refugees wishing to exercise their right to family reunion;
- families with no recourse to public funds;
- women subject to domestic violence but not entitled to access to public funds via the “destitution domestic violence” (DDV) route;
- fathers and mothers facing removal and separation from the children; and
- people held in indefinite immigration detention at the end of their prison sentence or faced with deportation.
Three people who badly need skilled advice
Ahmed is a 35 year old man who has been in the UK since the age of 2. He is under threat of deportation. He is no longer entitled to legal aid and has no money to pay a private lawyer.
Boris has a British child. The local authority and the Immigration Judge recognise that he provides absolutely essential care and support to his son and saves the State thousands of pounds by keeping his son out of the care and penal system. He is under threat of deportation and is no longer eligible for legal aid.
Christina is a child who has been in the UK for nine years. She and her family are fighting their removal from the UK. She is no longer eligible for legal aid and has no money to pay for private representation.
GMIAU told the Bach Commission:
Greater Manchester Immigration Aid Unit provides specialist immigration legal advice, representation, and support to people who are subject to immigration control in the North West of England. Typically, we represent adults, children, and families who are seeking protection in the UK; families with no recourse to public funds: people who face deportation; people who have been trafficked to the UK: and separated families including refugees. It is from this experience that we submit our evidence.
Our biggest concerns about the state of access to justice are that:
- Access to justice is increasingly only for those who have the money to pay for it. It is not universal and those with least resources get left out. Inequality is increasing and there are parts of the population who are being disenfranchised by the state and the law.
- Gross injustices are taking place hidden from public view and the State is not being held to account.
The Garden Court Chambers Immigration Team (GCCIT) told us:
Some parts of the public discourse support the notion that migrants should not have the benefits of our legal system – and this is no doubt why the many barriers to justice and the discriminatory treatments are being extended and enhanced. The architects of such restrictive models appear to have given no consideration to the unintended consequences:
the lost family life of British citizens – and the long term consequences for the children in stranded families;
the many lawful foreign residents who will via procedural errors or the denial of appeal and status rights become unlawful residents and thus criminally culpable carrying out their normal lives;
the British providers of services who will now be committing criminal offences by assisting certain migrants with housing, employment or care. It is no exaggeration to say that the array of restrictions will over time erode and create divisions and enmity in social and community relations.
Just in case anyone thinks that the law is simple and that non-lawyers can argue their cases before the immigration authorities without any help, GCCIT also said:
Immigration law is voluminous, complex and unintelligible to all but working specialists. This helps no-one. The Chambers’ text Macdonald’s Immigration Law and Practice – generally seen as the leading text on the subject – has grown from a single to a 2 volume work. The commentary (volume 1) and legislative instruments (volume 2) texts are each over 2,000 pages in length and as the preface to each recent edition has made clear – the text is ‘out-of-date’ and therefore inaccurate in certain respects generally within weeks of publication.
The statutory and rule based appeals scheme is highly complex. Due to repeat legislative changes there are a number of transitional arrangements requiring consideration of whether the person has an appeal right, an in-country appeal right and the relevant grounds of appeal and the evidence that may be relied upon in support of the appeal. This complexity is well-recognised and much criticised. Thus:
The Administrative Justice and Tribunals Council considers immigration to be an area of “extraordinary complexity”;
In just one of many judicial criticisms concerning complexity -in November 2011, Lord Justice Jackson said of an issue affecting the situation of persons liable to removal: “…this area of immigration law has now become an impenetrable jungle of intertwined statutory provisions and judicial decisions…” (Sapkota  EWCA Civ 1320);
The Immigration Services Commissioner’s scheme to regulate immigration advice and services regards work on family reunion, removals and deportation, cases of illegal entrants and overstayers, Article 8 applications, lodging notices of appeal and applications outside the rules as too complex to be done by those who have attained competence at only Level 1 of her scheme. Very few not-for-profit agencies have attained competence beyond Level 1;
The UK Visas and Immigration website section on “Staff guidance, instructions and country information” contains 14 distinct sets of policy guidance, many of which contain detailed chapters and sections making up a vast array of immigration policy and instructions, which is frequently subjected to revision and restructure;
The Immigration Rules are frequently changed. For example, they have been substantially changed 33 times from January 2012 to date;
The laws and rules not only prescribe the criteria for entry and stay but set strict procedural requirements requiring applicants to submit the correct application form, complete all the necessary components in the form and provide prescribed evidence via prescribed documentation. If applicants fail to comply with these procedural requirements, the application can be returned as invalid and the applicant in many cases will lose their legal status and with this their former rights to take employment, rent accommodation, drive their cars or have access to medical services. These are draconian provisions affecting not simply those long term overstayers or illegal entrants who have never held such rights, but lawful foreign residents who lose such rights via the vagaries of the application and appeal process.
I spent 16 years of my life as a senior judge doing my best to understand and interpret a corner of our law which has just grown like Tospy.
It is ludicrous to think that any migrant can master it without the help of a lawyer.
How can all this injustice be allowed to continue?