Changing the immigration rules and withdrawing the ‘currency’ of legal aid: the impact of LASPO 2012 on migrants and their families

Abstract

The provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO 2012) will remove almost all immigration cases from the scope of legal aid with effect from 1 April 2013. Part One of this paper describes the expected changes LASPO 2012 will make and then explores their anticipated impact. It explains that large numbers of migrants and their family members are likely to be without legal advice and representation after April 2013, including in cases where the state-enforced removal or deportation from the UK of a parent is contemplated, with the consequence of separating parent from child. Part Two explores the possibility that an ‘exceptional case determination’ might provide a route back into legal aid funding, and finds that this is likely to be restricted, in immigration cases, to those making applications relying on Article 8 ECHR and who can demonstrate a particular and individual requirement for legal aid. Part Three explores the rationale for these changes, and concerns about access to justice for migrants and their family members in cases involving acute interference with rights to family and private life. It places these concerns in context, specifically the fundamental and restrictive amendments to the Immigration Rules relating to family migration introduced from July 2012. These amendments are enormously complex and their full legal implications have yet to be tested in the higher courts. Part Four questions whether the changes will in fact achieve their stated aim of cost savings or whether the costs will simply be transferred to other parts of the State (especially to the Tribunal system, in dealing with litigants in person). The paper additionally questions, in Part Five, whether the regulators are equipped to regulate the quality of the fee-charging immigration advice services to which at least some individuals will turn. The paper concludes that, at the very least, it is particularly harsh that the Government has removed the ‘currency’ of legal aid at this time, so that those with limited financial resources have neither access to legal aid advice about the meaning of those Rules nor legal aid representation to test their proper interpretation.

Keywords:

• immigration
• asylum
• LASPO 2012
• legal aid
• family migration

Notes

 1. Commonwealth Immigrants Act 1962 (c.21).

 2. Peer review is undertaken by experienced legal aid practitioners working for the Legal Services Commission. The peer reviewer assesses a random sample of case files, to measure the quality of advice and legal work carried out by a legal aid provider. The rating awarded by the peer reviewer is used to make decisions about future contracts, etc.

 3. The Specialist Quality Mark audit involves the periodic attendance by employees of the Legal Services Commission to inspect not just individual files but also management and financial systems. Contract Compliance Audits require a certain (small) number of files to be sent to the Legal Services Commission, which are then reviewed. The accuracy of billing is minutely examined – and any over-billing extrapolated to calculate an amount to be ‘recouped’ from the organisation concerned.

 4. The Law Society's Immigration and Asylum Law Accreditation Scheme is a scheme which accredits individual advisors. Only work done by those accredited via this scheme is remunerated by the Legal Services Commission, making it compulsory for legal aid immigration and asylum practitioners since 2005.

 5. Typical disbursements in this area of work would be the professional fees of interpreters, medical experts, country experts, and barristers. These have to be met by legal practices as the case progresses, and once stage billing was removed would only be reimbursed at the end of the matter by the LSC. Many cases were long running due to Home Office delay, so payment could be delayed for years.

 6. Formerly known as the ‘Refugee Legal Centre’.

 7. Killick and James (2009, p. 13) suggest that ‘case workers find themselves caught in the middle, squeezed between increasing financial pressures and their ethical obligation to their clients’, and that the tightening in the provision of legal aid threatened the continued existence of many of the UK's law centres and non-profit organisations.

 8. The Immigration and Asylum Act 1999 set up the regulatory scheme, and created the post of Immigration Services Commissioner. Immigration ‘advice’ and ‘services’ in England and Wales may only be provided by those authorised by a ‘qualifying regulator’, by those regulated directly by the Office for the Immigration Services Commissioner or those exempted by ministerial order. The Immigration and Asylum Act 1999 also created new criminal offences. Providing any immigration ‘advice’ or ‘services’ not regulated amounts to a criminal offence if carried out in the ‘course of a business’ (which is defined to include the work of not-for-profit organisations).

 9. Qualifying regulators are listed at Schedule 4 of the 2007 Act, and include the Law Society of England and Wales, the General Council of the Bar, and the Chartered Institute of Legal Executives. Their regulatory bodies, the Solicitors Regulation Authority, Bar Standards Board and Institute of Legal Executives Professional Standards, carry out the regulatory work.

10. Figures are relative to a 2009–2010 baseline, and appear to assume that the only immigration cases remaining in scope are challenges to immigration detention, and not to have taken into account changes to the LASPO 2012 scheme reintroducing legal aid for those making domestic violence applications and victims of trafficking. However, trafficking and domestic violence applications are likely to be small in number. (MoJ 2012, para. 10).

11. LASPO 2012, s 9.

12. Provided, inter alia, the applicant can locate a legal aid provider with capacity to take on their case, and provided the merits and the means tests are satisfied.

13. LASPO 2012 Part 1, Schedule 1, Part 1, paragraph 30: rights to enter and remain in the UK arising from the Convention relating to the Status of Refugees (UN General Assembly 1951); Articles 2 or 3 of the European Convention on Human Rights (Council of Europe 1950) Convention (Council of Europe, 1950); the Temporary Protection Directive (Council Directive 2001/55/EC); or the Qualification Directive (Council Directive 2004/83/EC).

14. LASPO 2012 Part 1, Schedule 1, Paras 25–27.

15. LASPO 2012 Part 1, Schedule 1, Para. 28.

16. Under regulation 10(5) of the Immigration (European Economic Area) Regulations 2006 (S.I. 2006/1003).

17. Restricted by LASPO 2012 schedule 1, Part 1 para. 32 (1) to applications for leave to enter or remain where ‘there has been a conclusive determination that the individual is a victim of trafficking in human beings, or there are reasonable grounds to believe that the individual is such a victim and there has not yet been a conclusive determination that the individual is not such a victim’. Para. 32(6) and (7) further provide that the reference to ‘determination’ refers to a determination by a ‘competent authority’ under the Trafficking Convention (Council of Europe 2005), and that whether or not there are ‘reasonable grounds to believe’ is to be determined by a competent authority.

18. LASPO 2012, Part 1, Schedule 1, Para. 24.

19. LASPO 2012, Part 1, Schedule 1, Para. 31.

20. But, as was the case before April 2013, legal aid will not to be available for representation before the First Tier Tribunal (Asylum Support) in relation to appeals in such matters.

21. LASPO 2012, Part 1, Schedule 1, Para. 19.

22. LASPO 2012, Part 1, Schedule1, Para. 20.

23. Note that specific provisions ensure that judicial review remains in scope in asylum cases ‘where there is no right of appeal to the First-tier Tribunal against the decision’ (LASPO 2012, Part 1 Schedule 1, para.19(7)) (most likely to be fresh claims for asylum under para. 353 of the Immigration Rules) and ‘of certification under section 94 or 96 of the Nationality, Immigration and Asylum Act 2002’ (LASPO 2012, Part 1 Schedule 1, para. 19(7)(b)) (such certificates prevent appeals where an asylum or human rights claim is ‘clearly unfounded’, or where the decision could have been appealed against before).

24. LASPO 2012, Part 1, Schedule 1, Para. 19(5)(a).

25. LASPO 2012, Part 1, Schedule 1, Para. 19(5)(b).

26. LASPO 2012, Part 1, Schedule 1, Para. 19(5)(c).

27. LASPO 2012, Part 1, Schedule 1, Para. 19(6).

28. Which will be defined by the Civil Legal Aid (Merits Criteria) Regulations 2012, currently in draft form.

29. LASPO 2012, s 10.

30. Steel and Morris v UK, 68416/01 [2005] ECHR 103; Alkan v. Turkey, 17725/07 [2012] ECHR 233.

31. 39652/98 [2000] ECHR 455 (5 October 2000).

32. See, for example, the judgement of the Court of Appeal in R (on the Application of) MK(Iran) v SSHD [2010] EWCA Civ 115 (where, interestingly, Sedley LJ applied slightly different reasoning to the other members of the Court of Appeal, and thought perhaps Maaouia v France might not be applicable to asylum cases, and in any event should be re-examined by the ECtHR in light of the Qualification Directive (Council Directive 2004/83/EC).); and MNM v Secretary of State for the Home Department (2000) INLR 576 IAT.

33. See, for example, Matfah v FCO [2011] EWCA Civ 350, per Sedley LJ, para. 14: ‘The only thing which is certain is that civil rights in article 6 have an autonomous meaning. The Strasbourg court has made this clear on more than one occasion. What is neither certain nor clear is what that meaning is.’

34. Matfah v FCO [2011] EWCA Civ 350, per Sedley LJ, para. 24, holding that the making or procuring of a freezing order is a discharge of public functions, albeit with a dramatic impact on the civil rights of individuals.

35. ‘I agree that we have to dismiss this appeal, but I do so with considerable reluctance. Mr Bedford has advanced a formidable argument that article 13 of the Qualification Directive has introduced into EU law, and hence into the law of all EU member states, an affirmative right to asylum. The obligation which the article spells out may be a public law duty, but it is an obligation which arguably generates a correlative individual right. In the domestic law of the United Kingdom and, I suspect, in civil law systems likewise, it is not easy to see how such a right, if it exists, can be anything but a civil right.’ Sedley LJ in MK (Iran), para. 70.

36. See, for example, ‘I see no reason to depart from the constant case-law of the Commission that, because of the substantial discretionary and public-order element in such decisions, proceedings relating to them are not to be seen as determining the civil rights of the person concerned, even if they inevitably but incidentally have major repercussions on his private and family life, prospects of employment, financial position and the like …’ (Maaouia v France, concurring opinion of Sir Nicolas Bratza).

37. Gearty (2004, pp. 111–112): ‘the effect of this in many cases has been as insistence on due process which has had the effect of inhibiting the regulation of property by the state’.

38. In Odelola v SSHD [2009] UKHL 25, paras 6–7, per Lord Justice Hoffman, ‘The status of the immigration rules is rather unusual. They are not subordinate legislation but detailed statements by a minister of the Crown as how the Crown proposes to exercises its executive power to control immigration. But they create legal rights: under section 84(1) of the Nationality, Immigration and Asylum Act 2002, one may appeal against an immigration decision on the ground that it is not in accordance with the immigration rules’ per Lord Hoffman, paras 6–7.

39. With some limited exceptions: see, for example, its application in cases where an individual's removal would severely hamper their ability to bring civil proceedings in the UK, R v Immigration Officer ex parte Quahquah [2000] INLR 196.

40. R (on the Application of) MK(Iran) v SSHD [2010] EWCA Civ 115, where the Court of Appeal was unanimous that there was a strong imperative not to move ahead of Strasbourg's jurisprudence, citing Lord Bingham in Ahsan Ullah v Special Adjudicator; Thi Lien Do v Secretary of State for the Home Department [2002] EWCA Civ 185.

41. See European Parliament and Council Directive 2004/38/EC.

42. Ruiz Zambrano (European citizenship) [2011] EUECJ C-34/09 (08 March 2011).

43. McCarthy (European citizenship) [2011] EUECJ C-434/09 (05 May 2011).

44. Impact Assessment, Annex A: Scope, para. 10, Table 3.

45. Impact Assessment, Annex A: Scope, para. 37.

46. Impact Assessment, Annex A: Scope, para. 37.

47. Proposals for the Reform of Legal Aid in England and Wales, Consultation Paper CP12/10, Ministry of Justice, November 2010.

48. Para. 4.201, Green Paper.

49. Access to Justice Act 1999, Schedule 2.

50. ILPA Response to Ministry of Justice Consultation: Proposals for the Reform of Legal Aid in England and Wales, p. 7.

51. ILPA Consultation Response at p. 8.

52. Huang v SSHD [2007] UKHL 11, para. 18.

53. Huang v SSHD [2007] UKHL 11, para. 18. We might equally have quoted any nunber of academic sources: ‘Families are the lifeblood of our communities – the place where dreams are born, children are nurtured, adults find purpose, and life challenges are weathered’ (Rice 1994).

54. Article 8(2) ECHR.

55. Huang v SSHD [2007] UKHL 11, para. 20.

56. Huang v SSHD [2007] UKHL 11, paras 11 and 13.

57. HC 194, Statement of Changes to the Immigration Rules, 7/7/2012.

58. MF (Article 8 – new rules) Nigeria [2012] UKUT 00393(IAC).

59. Beoku-Betts (FC) v Secretary of State for the Home Department [2008] UKHL 39.

60. VW (Uganda) v SSHD [2009] EWCA Civ 5.

61. EB (Kosovo) (FC) v Secretary of State for the Home Department [2008] UKHL 4.

62. EB (Kosovo) (FC) v Secretary of State for the Home Department [2008] UKHL 41.

63. [2011] UKSC 4.

64. Baroness Hale, ZH (Tanzania) v SSHD [2011] UKSC 4.

65. See the introduction to this paper, where the regulation of immigration advice was discussed.

66. Letter from the Rt Hon the Lord Wallace of Tankerness QC to the Immigration Law Practitioner's Association, 26 March 2012.

67. Letter from the Rt Hon the Lord Wallace of Tankerness QC to the Immigration Law Practitioner's Association, 26 March 2012.

68. Note, that as Valdez (2012, p. 7) points out, this paragraph of the funding code is ‘poorly drafted’, and the reasoning is opaque.

69. EM (Lebanon) [2008] UKHL 64.

70. Per Lady Hale at para. 49.

71. Per Lady Hale at para. 35.

72. The Asylum and Immigration Tribunal (Procedure) Rules 2005 (as amended); SI 2005/230, hereinafter referred to as ‘The Procedure Rules’.

73. The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 SI 2685/2008.

74. Rule 4 of the Procedure Rules.

75. Albeit one that is often not achieved.

76. Although ‘UKBA case workers and decision makers must be aware of and give full effect to its “Evidential Flexibility” policy document. This requires due appreciation of the discretionary powers enshrined therein to request further information from applicants in any case and the exercise thereof in accordance with established legal principles viz the duties to appreciate the existence of and correctly understand and give effect to the policy; to act fairly and rationally; to take into account all material considerations; to disregard immaterial considerations; to observe the requirements of a procedurally fair decision making process; and to act compatibly with such ECHR rights as may be engaged in a particular case, in accordance with section 6 of the Human Rights Act 1998’ (Rodriguez (Flexibility Policy) [2013] UKUT 00042 (IAC)).

77. This found in relation to asylum-seekers that although quality work costs, poor quality work costs more in the longer term both to the public purse and in human terms. In addition, quality work is more likely to achieve early resolution of the case, thus saving money in the long term. There is a correlation between cost and quality and between quality and successful outcomes.

78. Speaking at the Annual Conference of the OISC (Office of the Immigration Services Commissioner), on 6 December 2010.

79. Giving evidence before the Constitutional Affairs Committee, 21 March 2006 (Constitutional Affairs Committee 2006). http://www.publications.parliament.uk/pa/cm200506/cmselect/cmconst/1006/6032103.htm

80. Director of the Centre for Ethics and Law, Professor of Law and Professional Ethics at the Faculty of Laws, University College London.

81. Giving evidence before the Constitutional Affairs Committee, Tuesday 21 March 2006. http://www.publications.parliament.uk/pa/cm200506/cmselect/cmconst/1006/6032103.htm

82. On 17 October 2012.

83. Colin Yeo, immigration barrister at Rennaissance Chambers, speaking at a Refugee Law Initiative seminar in London on 14 March 2013.