By Sir Henry Brooke
This is a sequel to “Seven Stories of Injustice”.
July 2016
Contents
Seven More Stories of Injustice
The loss of a taxi-driver’s licence
How the reforms stopped children from having a settled school career
Three vignettes of life in Harrow today
Three people who badly need skilled advice
The first new story
For the first story of injustice in this new series I am drawing on a case study published last year by The Children’s Society in Cut Off from Justice: The impact of excluding migrant children from legal aid illustrates the points that were made to the Bach Commission by other witnesses who were concerned with the devastating impact the LASPO cuts have made to the lives of vulnerable children who do not know their rights and who now have no readily available source of legal advice to which they can turn.
The story of Florence
Florence arrived in the UK as a very young child with her mother who left her in the care of a ‘friend’, living as an undocumented child for many years.
The woman she had been left with was disabled and Florence was responsible for her physical care and the housework. She was neglected, often went without food and at times was locked out of the house with nowhere else to go. An ‘uncle’ would regularly visit the house. He was a known criminal with a volatile personality and Florence would often witness physical arguments between the man and woman leaving her very ill as a result.
Florence sometimes went to school and her teachers, upon noticing her underweight and careworn appearance, made a referral to social services. Social services sat on the referral for a number of years, only occasionally visiting Florence and not doing anything about her undocumented status. The woman that Florence lived with was also undocumented and arranged with friends who did have status to pretend they were Florence’s carers.
Florence had to go to their house whenever social services visited and was forced to call them ‘mum’ and ‘dad’. When Florence was 16, she was made homeless, but with the support of a voluntary organisation, she was taken into care. During this time, Florence had assumed that her stay in the UK was not a problem. She did not know that she was undocumented.
Without access to legal aid she has been unable to regularise her status because she cannot afford to pay for legal help. So far the local authority has been unwilling to pay. If Florence cannot resolve her immigration issues before her 18th birthday she may be detained by immigration authorities. She could be made destitute or be forced to return to her country of origin which is a foreign place to her and somewhere where she has no support network or family to whom she can turn.
Commentary
The Children’s Society told the Bach Commission:
“While many lone children with immigration claims will already have a right to remain already and will need legal advice or representation to help them with indefinite leave and citizenship applications, other children – namely those who are undocumented – will need legal advice to regularise their status. There are an estimated 120,000 undocumented migrant children living in the UK, the majority of whom – 65,000 – were born here[1].
Our own research published in April 2016 estimates that there are approximately 144,000 undocumented children living in England and Wales, with most of these children being located in London and the West Midlands. Many of those who were not born here will have grown up here and spent their formative years in this country. However, their uncertain status means that they have not yet established a legal right to remain in the country, even though they may have legitimate reasons for needing to remain and their long term future may be in the UK.
As the Government has an agenda to create a ‘hostile environment’ for irregular or undocumented migrants by limiting access to services such as private rented accommodation, bank accounts and public funds on the basis of status, the immediate welfare needs as well as the life chances of undocumented children increasingly depend on their ability to regularise their status quickly. Without status, they are increasingly left at risk of destitution, exploitation and social exclusion.”
The Garden Court Chambers Immigration Team 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 laws and rules not only prescribe the criteria for entry and stay but they also 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.”
How can an undocumented child who was born here or lived here since she was a very young child establish her right to stay here without access to legal advice?
The Government has taken the provision of legal help on such issues out of the scope of the legal aid scheme.
Is this justice?
The second new story
For my second new story of injustice I am drawing on a case study furnished to the Bach Commission by the Zacchaeus (Z2K) Trust (The Trust).
Delay after delay after delay…
A client applied in 2013 to be assessed for the new disability benefit, Personal Independence Payment (PIP).
It took the Department of Work and Pensions over a year to assess her so that the Trust intervened in a case that had been brought by two other claimants for judicial review of the Department’s assessment process. This was found to be unlawful but no compensation was awarded to the claimants because the High Court possessed no power to do so.[2]
In ruling that delays of 14 months and ten months were not merely unacceptable (as was conceded) but also unlawful the judge said:
“Both claimants’ cases called for expeditious consideration. They each suffered from significant disabilities (as set out above). They were each properly to be regarded as amongst the most vulnerable in society.
The first claimant was classified as a person requiring additional support early on in the process of her claim. Yet the system then in operation required her to travel some distance to a face to face assessment on two separate occasions when she had explained her difficulty in travelling. It took more than one year after she initially contacted DWP for sufficient details to be obtained over the telephone to enable her claim to be considered and determined.
For the second claimant similar considerations, although less extreme, applied from the moment of claim until the determination some ten months later.”
In that case the Trust had produced evidence of delays in processing PIP claims and the impact that this had had on individual claimants. It produced six case studies, in which the shortest time for determination was seven months and one claimant was still waiting for determination after 12 months. The court was told that it is the impact of the delay in processing the applications which has been devastating for some of the most vulnerable people in society. For all new claims those who are waiting have been without access to a needs based benefit for an extended period of time and, on some occasions, without any benefit at all. That impact is not resolved by backdating the award because the claimants had undergone mental, physical and financial hardship which cannot be adequately remedied by a financial payment.
One of the case studies shown to the court by the Trust involved LS, a single mother with three adult children (aged 18, 20 and 29 years), who was unable to work due to disability. She made her application for PIP in October 2013. No award was made until 31st October 2014. During the time of processing the PIP application, LS was subjected to the benefit cap and fell into rent arrears of between £7,000-8,000. She was repeatedly threatened with homelessness which caused her depression and anxiety. Her physical health suffered.
Her landlord refused to repair the property whilst she was in arrears and she was forced to use her employment & support allowance (ESA) to fix her kitchen ceiling which had fallen in due to damp. She went without food and electricity and borrowed regularly from friends to pay her utility bills making informal repayment agreements which she has found stressful. She remains in an anxious state and has developed paranoia at being threatened with homelessness again. She has become increasingly dependent on her children.
The Trust asked the Department for compensation and when they refused it lodged a complaint in January 2015. It then took over a year to exhaust the Department’s 2-stage complaints process.
In February 2016, as the rules require, the Trust applied for the refusal of the complaint to be reviewed, because this is a gatekeeping stage that now has to be gone through before an application to the Ombudsman. In June 2016 the Trust was told that it will be another nine months before that review will be completed.
That means the complaints process will have taken well over two years before the Trust can even apply to the Ombudsman to investigate the maladministration.
“This shows that the process is not intended to drive improvement.”
Commentary
The Zacchaeus Trust also told the Bach Commission:
“Our clients experience difficulty in understanding their rights which is why they cannot enforce them. We recently saw a client who had received a letter from the housing benefit department purporting to explain her entitlement which was 83 pages long. Even our trained advisers struggled to understand what was being said. We also regularly see clients who have received notification from the Department for Work & Pensions (DWP) or their local authority that their benefits have been withdrawn or suspended without any explanation. They find it too difficult to negotiate past the gatekeeping that these departments protect themselves with so they cannot redress the problem as they don’t know what it is.
Our clients also do not have computers and suffer from language or literacy or mental health or other disability difficulties. We struggle to find interpreters who can help those with language difficulties as we cannot afford to pay fees.
Those who wish to challenge health assessments made by DWP cannot obtain medical reports without paying a fee which they cannot afford.
The State should work with the advice sector on improved processes. At present most departments’ response to complaints about denial of rights is to point to a complaints procedure instead of thinking about getting it right first time.
And then it takes two years to navigate the complaints procedure before one can even apply to the Ombudsman.
Is this justice?
My third new story of injustice relates to a problem that was frequently mentioned in the evidence furnished to the Bach Commission. It relates to the conduct of a small minority of the duty solicitors approved by the Legal Aid Agency for police station duty.
The loss of a taxi-driver’s licence
Bert had worked for 17 years as an honest, decent minicab-driver. He was then accused of taxi touting. The duty solicitor at the police station advised him to accept a caution for taxi touting so that he could get out of the police station quickly and avoid a criminal conviction.
As a consequence of the caution Bert automatically lost his cab licence because Transport for London (TFL) operates a zero tolerance policy, and one cannot go behind the caution.
He instructed counsel on his TFL licence appeal, who tried his best with the magistrates (on the basis that he had had a strong defence to the taxi touting charge) but it was hopeless. He was stuck with the consequences of the caution, on which he had received inadequate advice.
As a result of that one piece of inadequate advice, Bert lost his livelihood and a job he loved.
Commentary
The experienced barrister who told us this story also said:
“I have dealt with clients given disastrous advice at police stations who then come and see me privately when it is often too late – the worst examples being the number of clients who have been told by a police rep (who has passed a few simple exams and is then able to advise vulnerable individuals in police stations which is terrifying) to accept cautions as it will then just ‘be over and done with’ without thinking of the other consequences of a criminal conviction and when in the circumstances it is patently not right to accept the caution.
Access to justice means access to a motivated, qualified professional and competent lawyer: not some unqualified non-solicitor rep cadging around £80 a hit (after the firm has taken their fee) for police station work.
I should say that I don’t blame the rep or the firm at all but the increasing lack of quality control and the terrible fees that mean this sort of incompetence / ‘get ‘em in; get ‘em out’ attitude becoming more frequent. It stems from a systemic lack of funding in the system.”
Readers of my blogs will recall that the existence of this problem also featured in the oral evidence given to us by the London Criminal Courts’ Solicitors’ Association:
“Criminal contracting came in just over 20 years ago. PACE introduced a solicitors’ advice scheme in police stations. Solicitors needed an incentive to go to the police station when they got a call from a custody sergeant. Nobody wanted to do it. It was not glamorous work.
Solicitors were then incentivised to do the work by relatively generous hourly rates, higher rates for evenings and weekends, and different rates for different types of offence. There was an enhanced rate for murder cases, for which a solicitor would be paid properly. This meant that quality representation was provided for those who were most at risk and in need of proper representation. People were being paid properly, and were enabled to take time for the task and ensure proper disclosure.
Things improved still further after the Cardiff Three case. Accreditation was introduced to prevent a re-occurrence of the problems in that case. Quality representation was always to be key.
The duty solicitor scheme was seen by some as a means to an end. Newly qualified young solicitors wanted to achieve duty solicitor status for their self-respect, if nothing else. They had autonomy over their cases and could decide how they were run, and they were not at the beck and call of supervisors.
Another problem arose from the deregulation of higher education and the opening up of colleges of law. Firms recruited graduates without training contracts. The firms were encouraged to maximise their income, and these graduates constituted police station fodder. They were given a certain amount of training in what to do.
From 2008 onwards there was an attempt to control the cost of police station payments by introducing a fixed fee scheme. This was not welcomed by the profession. Corner-cutting took place to minimise the time spent in the police station, so as to balance off the hours of dead time. The fixed fee constituted a reward for getting in and out of the police station quickly. When the police messed you about and forced you to wait several hours, you might be too far from your office to go back to it, and this constituted dead time. You might have to wait all night for an appropriate adult.
This swings and roundabouts system didn’t do justice any favours. In making savings in one place, they were running up costs elsewhere, as a National Audit Office report made clear. Mistakes were being made elsewhere as a result of cuts in justice.”
How can this be justice when the consequences of inadequate advice may be so devastating?
My eleventh story of injustice, like the first, relates to the way new legislation has made justice even more inaccessible to those who prefer to live in caravans/ mobile homes.
My first story showed vividly the injustice that may be caused by Parliament’s refusal to allow a site-owner’s breaches of the Mobile Homes Act 1983 to remain in scope for legal aid. This story illustrates the injustice that may occur because it is now so difficult to find solicitors who are willing to bring applications for judicial review “at risk” although this is the only method by which a New Traveller may challenge a local authority’s unlawful decision under the homelessness legislation.
How the reforms stopped children from having a settled school career
Mr and Mrs H are New Travellers who have to resort to roadside encampments with their two children due to the lack of authorised sites and the lack of vacant pitches in the areas they normally resort to. They have been desperately trying to get an authorised pitch. The children have been missing a lot of school and Mr and Mrs H had hoped that, if they could find an authorised pitch, the children would be enabled to go to school and their educational chances would greatly improve. Additionally, Mrs H has been suffering from severe depression due to frequent evictions and the problems with getting the children to school.
A local support group suggests that they make a homelessness application since they are homeless under the provisions of the Housing Act 1996 as they do not have anywhere where they are entitled or permitted to place their caravans. The local authority they apply to refuses to take an application because it considers that they already have a home i.e. their caravan.
This is unlawful. The only way to challenge this action is by way of judicial review.
Mr H is a wood carver but, due to frequent evictions, he has not been able to sell many of his carvings recently and he is on such a low income that the family are financially eligible for legal aid. However, they have great difficulty in trying to find a solicitor to take on this matter ‘at risk’.
By the time Mr and Mrs H find a solicitor who is willing to attempt to make a judicial review application, it is four months after the local authority refused to take the homelessness application. A judicial review application needs to be brought promptly or within 3 months. Nevertheless their solicitor manages to obtain legal aid and lodges a judicial review application asking for permission to proceed with the application out of time.
The matter comes before a High Court judge who looks at the matter on the papers and refuses permission for the matter to proceed because of the delay. Although there is then an automatic right to go to an oral hearing, the solicitor tells Mr and Mrs H that he is not willing to take that step because it will be expensive and the barrister whom he employs and his firm may not be paid for going to the hearing.
Mr and Mrs H have no alternative but to continue on roadside encampments and the children continue to have problems in attending school as a result.
Commentary
This story was told to the Bach Commission by the Travellers’ Advice Team at Community Law partnership. They also told us:
“During the consultation process on proposals to amend the situation with regard to legal aid and judicial review, the vast majority of respondents indicated that most judicial review applications were successfully settled prior to permission being considered by the court. Despite this, the Government brought into force provisions which mean that legal aid providers would not be paid on a judicial review application unless either permission was granted or the matter was settled prior to permission without costs being awarded to the claimant and the Legal Aid Agency exercised their discretion in favour of the legal aid provider.
Following the successful challenge in the case of R (Ben Hoare Bell and Others) – v – the Lord Chancellor, the regulations were changed to bring in a few exceptions but it remains the case that a legal aid provider will have to begin a case entirely at risk in terms of costs and this is clearly dissuading a number of such providers from taking on these vital cases.
Judicial review is an essential tool for Gypsies and Travellers who are seeking to challenge unlawful actions of local and public authorities.”
The Mary Ward Legal Centre told us:
“Judicial review is now funded only if the case gets permission from the court (unless the claim is not issued at all). This can act as a deterrent for providers who will not take the risk on issuing what may actually be a perfectly good claim.”
While it was understandable that a judge might be unwilling (on paper) to permit this application to proceed out of time, the reason for the four-month delay was that it was so difficult for an impoverished wood-carver to find a solicitor who was willing to make a judicial review challenge “at risk” in a fairly specialised corner of the law.
As a result of all this the children’s schooling suffered. Is this justice?
The fifth new story
For my fifth new story of injustice, I have chosen three vivid scenarios sent to us by the Harrow Law Centre (whose Patron I am proud to be.)
They are particularly relevant on the day after the new Leader of the Conservative Party has made it clear that she wants to heal the wounds of a divided society.
The annual accounts of the Legal Aid Agency for 2015-16, which have just been published, appear to show at pages 66-67 that audited net expenditure on all forms of civil and criminal legal help and legal representation has been cut by £630 million, from £2.11 billion in 2010-11 (the first year of the Coalition Government) to £1.48 billion in 2015-16.[3]
This is a much greater cut than was ever envisaged when the LASPO proposals were first proposed in November 2010 and legal aid cuts of £350 million were suggested. The damage these excessive cuts have caused to so many people’s health and happiness is incalculable.
Lord Low’s Commission believed that additional expenditure of £100 million on social welfare law would make a great difference. I have summarised his oral evidence to the Bach Commission elsewhere on this site. He told us:
“We estimated that a further £100 million a year would be needed to provide a base level of provision of sufficient advice and legal support on social welfare law”[4].
Commentary
The underlying causes of the human misery described by the Harrow Law Centre were explained by AdviceUK, which is the largest support network for free, independent advice centres in this country. It told us:
“The well-publicised problems with the introduction of Personal Independence Payments, Employment and Support Allowance (particularly in the use of Work Capability Assessments) have resulted in many people being without income to meet essential living needs. The length of time required to navigate bureaucratic legal procedures results in gaps in income, which in turn often leads to problem debt involving rent arrears, council tax arrears, pressure to use inappropriate or high-cost credit and a significant increase in the use of emergency support offered by local charities such as foodbanks. The introduction of mandatory reconsideration highlights the pernicious effects of the bureaucracy.
For many clients, the vulnerability and disadvantage associated with poor housing, problem debt and no income is compounded by poor physical and mental health, all of which make it much more difficult to understand and navigate legal procedures. Similarly, the inappropriate use of benefit sanctions has resulted in unnecessary legal action.
It is highly inefficient to deal with hundreds of individual cases where mistakes are predictably arising because of systems that are not fit for purpose, but there is little interest in changing such systems in ways that would both improve the lives of the people that have to navigate them and save money to the public purse.”
This was echoed in the evidence of the Law Centres Network, the spokesman for 44 not- for-profit legal practices across the UK:
“The biggest impact of LASPO has been the devastation of local legal and advice ecologies through the removal of funding for their essential services in social welfare law. Particularly hard hit was the early and preventative work used to nip problems in the bud. Since LASPO civil legal aid now backloads legal assistance to later stages when problems have already escalated, causing avoidable suffering for clients and greater expense to the state. As evidence, the only indicator that the Ministry of Justice reports on for civil legal aid in its annual report – average cost per case – has gone up.”[5]
And the Islington Law Centre told us that one of their three gravest concerns related to the escalation of problems due to the scale of need and the difficulty in securing help. They themselves have a “book ahead” time of over two months for many of their services, and for people with precarious incomes and few tenancy or employment rights, their situation can deteriorate badly during this time, leading to a need for more extensive work and with an impact on physical and mental health.
This link between injustice and damage to physical and mental health recurred often in the evidence we received.
In short, people have rights. They do not know they have those rights. They do not know where to turn for advice about them even if they know they have them. And the number of outlets for such advice has been decimated since LASPO.
How can this be justice?
The sixth new story
My sixth new story of injustice is typical of the large volume of evidence the Bach Commission received because of the hardships caused by the rule that only evidence of domestic violence (according to tightly prescribed requirements) will be admissible to open the door to legal aid in family matters. The Government is now involved in consultation over ways in which some of the obvious hardships their rules have caused may be mitigated, but in the meantime people (particularly women – and their children) go on suffering.
A wife who was kept in a shed
Ms P’s in-laws and her husband subjected her to ongoing abuse. She eventually developed serious health conditions for which she needed urgent access to medical care. For two years, she was in and out of hospitals. At one stage, her in-laws visited her in the hospital and told her that she would never recover and she was better off dead. As a result, she became suicidal and she was kept on ‘suicide watch’ by a nurse.
She was discharged from the hospital and returned to the matrimonial home. There she was kept in a shed at the back of the house which led to a deterioration in her health. She was kept in the shed for one year even though all the professionals involved knew about her home circumstances.
Her father eventually contacted Southall Black Sisters and we managed to get her out of the matrimonial home. Ms P cannot apply for legal aid for divorce and make claims for financial support or relief because none of the professionals involved recognised her situation as a case of domestic violence. For example, the hospital recorded her experiences as ‘family problems’.
Without proper recording of domestic violence, Ms P cannot obtain the evidence needed to obtain legal aid and to pursue legal remedies for the abuse she suffered.
Commentary
I have recited some of the submissions the Bach Commission received on this troublesome rule in the fifth of my Stories of Injustice.
The Family Law Department at Simpson Millar LLP told us:
“The requirement for “acceptable evidence” from the police does not deal with the reality that many victims who do report an incident to the police then fail to press charges. In our view evidence of repeated call outs to the police even where no further action is taken at the request of the alleged victim should be sufficient evidence to satisfy the Legal Aid Agency.
The requirement to produce evidence in the forms specified still doesn’t reflect the reality that most victims of domestic abuse do not report the incidents – Women’s Aid say that on average a woman will be assaulted 35 times before reporting it to the police.
The term domestic abuse doesn’t only include physical violence, but describes any abusive behaviour repeatedly used by one person to control and/or dominate another person with whom they have had an intimate relationship. It also includes the exertion of control and/or domination of one family member over another. Financial, emotional and psychological abuse victims often don’t recognise they are being targeted.
The evidential requirements do not reflect the fact that the behaviour often experienced by the victim may not look intimidating or coercive if each incident is looked at in isolation but when looked at over a period of time a pattern of behaviour is evident.
A victim of emotional or financial abuse may report that pattern of behaviour to the police but if there is insufficient evidence to prosecute for a criminal offence that victim would not then meet the evidence requirements to obtain legal aid and access this legal advice which could help her separate from her abuser and protect her children.
The requirement that written evidence of admittance to a refuge is the only acceptable evidence from a domestic violence support organisation does not reflect the fact that many people engage with support organisations in other ways. Many of the domestic abuse organisations that we work closely with offer support to victims in the community rather than refuge facilities. In our view evidence of any engagement with a domestic abuse support organisation should be sufficient to meet the Legal Aid Agency’s requirements.”
Women’s Aid told us:
“Women’s Aid welcomes the changes that were made to the Legal Aid regulations, increasing the time limit for evidence to five years, in April 2016 after a Court of Appeal ruling resulting from a Judicial Review case brought by Rights of Women. However, the regulations must be further altered to ensure that all survivors of domestic abuse are able to access legal aid. The guidelines should include further forms of permissible evidence, such as:
- A letter from a specialist domestic violence support service confirming that a survivor has sought help from that organisation.
- A letter from the 24 Hour National Domestic Violence Helpline that confirms the woman has contacted the helpline due to their experience of domestic violence.
The Legal Aid Agency must also ensure that survivors of domestic abuse do not have to pay for the evidence required for their legal aid applications. Women’s Aid are concerned to hear from some survivors of domestic abuse that they are being charged up to £50 for a Doctor’s note to accompany their application. For some women this is simply not possible.
The issue of limited access to legal aid for survivors of domestic abuse is particularly pertinent with regards to child contact cases in the family courts.”
Southall Black Sisters told us:
“We are concerned that although a range of organisations provide support to victims of domestic violence and carry out risk and needs assessments based on widely accepted domestic violence assessment tools, they are not deemed as valid sources of evidence. The ‘gateway criteria’ stipulates that only evidence from a closed and prescribed list of sources is acceptable.
For example, the only acceptable evidence a domestic violence support organisation can provide is confirmation that the woman has been referred to a refuge. This is extremely restrictive given that many black and minority ethnic (BME) women who flee domestic violence do not report to outside organisations for a number of very valid cultural and religious reasons, or due to the lack of secure immigration status or mental illness or disability or due to mistrust and lack of awareness of their rights. Indeed, lack of immigration status prevents many migrant women from accessing refuges because refuges will not accept women who cannot access welfare benefits or pay the rent.
No account is therefore taken of the social realities of women from extremely vulnerable and marginalised groups. Moreover, no account appears to be taken of the fact that women often find it extremely difficult and traumatic to reveal the true extent of violence, especially sexual violence, that is experienced or that many only reveal to a trusted specialist BME organisation that is likely to be their first and only port of call.”
When Baroness Scotland QC pressed a relevant amendment on the Government at the final stage of the LASPO Bill in April 2012 she said:
“As for why I am pressing our amendments, although the time limit is a huge issue of importance, so is the scope. As the noble Lord knows, if one has a valid claim, the only criteria or gateway ordinarily required is that cogent evidence or information be brought before the court to persuade it that that assertion is correct and valid. The imposition of the time limit on this occasion is not justified in view of the way in which domestic violence occurs—it flies in the face of our deep understanding of that phenomenon.
It is important that we look at the places where applicants go: it is not just to refuges. For example, we know that many councils outsource their provision of outreach services to CABs or local third sector organisations, knowing that they can be more effective at satisfying needs than state social services. Those agencies need to be included. At the moment the gateway does not include information from the police that there have been a number of attendances at a matrimonial home. The noble Lord will know that many victims do not press the matter on to charge or to conviction. The police may have been called many times, but if there is not a charge or a caution, the applicant—victim—will not be able to rely on that for legal aid…
We have a choice to make today. It is about the quality of the country we wish to live in. Domestic violence victims are the most vulnerable. One in four women will be affected by this, one in six men and 950,000 children. I ask the Government to think again. It will be too late to say we are sorry when we find that because we did not give legal aid in relation to ancillary and other proceedings to genuine victims, people died.
This is not a case when we can say, ‘We do not know. We hope it will not happen’. We have the empirical data. Over the last 30 years, we have learnt those lessons, so it is not a case of, ‘If we do this, it will be all right’. From my 35 years’ experience in this area, I can tell the House it will not. What we do really matters. There are women and children in this country who are frightened today because of what we are doing in this Bill, and if we wish to assist them, we will ask the other place to think again.
… I will be asking the House to support me for one last time on this matter. The Government may have their way. This may be the final time we speak on this issue. I understand that this ping must have its final pong, but this is the last throw of the dice and it is important that we ask the Government to think again. The reason why the churches, charities and third sector organisations are all supporting this amendment is that they have to deal, day by day, with the reality of what we will do. I therefore beg to move.”
Her amendment failed, on a tied vote. As so often happens, the inevitable has occurred. And much avoidable suffering has followed in its wake.
Is this justice?
For the seventh new story 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.
They include:
- 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.
Commentary
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 [2011] 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 Topsy.
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?
[1] Sigona, N. and Hughes, V. (2012) ‘No way out, no way in. Irregular migrant children and families in the UK’ COMPAS Oxford University.
[2] See C & Anor, R (on the application of) v Secretary of State for Work and Pensions & Anor [2015] EWHC 1607 (Admin).
[3] I omit the expenditure from central funds on the costs of acquitted defendants and on interpreters, which were not in the legal aid budget in 2010-11, but the inclusion of these items would only reduce the size of the cuts to £582 million.
[4] The expression “social welfare law” encompasses housing, welfare benefits, debt, education, asylum & immigration, and community care.
[5] See the Ministry of Justice’s Annual Report and Accounts for 2014-15 at p. 5.
Henry Brooke 
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