Proposed legal aid changes will have a terrible impact on people in immigration detention – our response to the consultation

4 June 2013

Proposed legal aid changes will have a terrible impact on people in immigration detention

Along with many other NGOs, legal practitioners and individuals who are concerned about the proposed changes, the Detention Forum will be submitting its response to the Ministry of Justice consultation paper ‘Transforming legal aid: delivering a more credible and efficient system’ today. 

Below are some of the points we will be making in our response.  Our main concern is the proposed residence test which says that in order to be able to access civil legal aid, a person must be lawfully resident in the UK at the time that an application for legal aid was made and also that they must have been lawfully resident for at least 12 consecutive months[1].  This will severely affect people’s ability to challenge lawfulness of Home Office decisions to keep them locked up in immigration detention centres.   


The consultation paper states that the proposals are aimed at restoring “public confidence” in the legal aid system and reducing the costs.  We are concerned that if the proposals are implemented, they will destroy the rule of law and create a group of people in society who become unable to access justice because of their circumstances and financial situation.   Effectively it will mean that some unlawful or wrong decisions of government and public bodies can no longer be challenged by those who are negatively affected by them, unless they can pay for their legal costs.  We do not believe that a legal aid system which fails to uphold the rule of law will gain the confidence of the public.  It is extremely alarming that the proposals, which have such huge constitutional implications, are to be implemented through secondary legislation, without the full parliamentary scrutiny afforded to primary legislation.

The Detention Forum is particularly concerned about the catastrophic impact the proposed residence test will have on the vast majority of people in immigration detention, who are incarcerated for administrative reasons.  Since the main purpose of immigration detention is for removal or deportation (or to establish the individual’s identity), almost by definition, these people have irregular immigration status and will not meet the proposed residence test.  It will affect a considerable number of people: in 2012, a total of 28,909 people entered detention, the highest since the Coalition Government came into power in May 2010[2].

We believe that the proposed change will annul the reassurances that were given before and during the passage of the Legal Aid, Sentencing and Punishment of Offenders Act 2012[3]. Parliament was told repeatedly that for those serious cases where a person’s life or liberty is at state, civil legal aid would continue to be available.  People in detention belong to this category and it was and continues to be of utmost importance that these individuals can access civil legal aid. Those proposals contained in the consultation paper undermine and contradict the reassurances given to Parliament and should be dropped.

There are three key factors which make it essential that people who are held in immigration detention to always have access to legal aided advice and representation.

Lack of time limit on immigration detention – Unlike many other countries in Europe and the rest of the world, the UK does not have a time limit on immigration detention, one of the most fundamental safeguards against arbitrary, indefinite, detention.  Partly due to this absence of a time limit, many people experience long-term detention.  Of 2,685 people who were in detention on 31 December 2012[4], 68% (1832) were in detention longer than 29 days, 31% (822) were in detention longer than 3 months, 14% (375) were in detention longer than 6 months and 5% (134) had been in detention longer than one year.

A series of the High Court judgments have made clear that arbitrary indefinite detention is unlawful and ordered the Home Office to release people who were detained long-term with little or no prospect of deportation.  Many of these cases would not have happened without legal aid.  Therefore, the introduction of the proposed residence test will make it more likely that individuals will be detained indefinitely without recourse to legal remedy.

Routine detention of vulnerable people – The Detention Forum is aware that a whole range of vulnerable people are regularly found in immigration detention.  They include people with serious mental health problems, trafficking victims, survivors of torture, gender violence and other human rights violation, pregnant women and unaccompanied minors.

Over the last two years the Home Office has been found to have breached detained individuals’ human right not to be subjected to inhuman and degrading treatment (Article 3 of European Convention of Human Rights) on four separate occasions.  Under the proposals, the courts would no longer be able to effectively scrutinise the behaviour of the Home Office because individuals in similar circumstances will not be able to bring the cases.  Moreover, in many of these cases, due to their vulnerability, language barriers and other issues, it would have been impossible for the individuals concerned to prepare and represent their own cases.   The proposed residence test will, therefore, increase instances of detention of vulnerable individuals.

No automatic judicial oversight of detention – Although people detained under the 1971 Immigration Act have the right to seek bail, there is no automatic judicial oversight of detention.  Some people are able to apply for bail without legal representation, although people with serious mental health disorders or other vulnerabilities often cannot.  However, the bail process alone cannot provide adequate judicial scrutiny, as bail hearings cannot consider issues of unlawfulness, and bail decision making can be inappropriate, inconsistent and unclear.  Currently, no complete record of proceedings of immigration bail hearings is available.  Neither are immigration judges’ ‘reasons for refusal’ documents provided automatically in typewritten format to the applicants or their representatives, which makes it difficult for the applicants to fully understand why they were not given bail,.   Legal representation improves the chances of being granted bail from 13% to 37%[5], demonstrating the importance of the availability of legal aid.

Bail hearings are not acting as an effective mechanism to keep the length of detention in check, as research has found that the length of detention is seldom considered when deciding whether to grant bail or not.  Of 50 bail hearings where the applicant had been held in detention for three or more months, and for which the observers were able to record this item of information, the judge mentioned length of detention in only 10[6].  In fact, while the 2011/12 Guidance states that three months detention is ‘substantial’ and six months ‘a long period’, this was seldom referred to by the judges[7].  As a result, in cases of long-term detention, it is essential that there be scrutiny by the High Court of the lawfulness of detention.  Unlawful detention is a highly complex area of law where self-representation is effectively impossible.

People in detention will get less help as a result The proposed changes will also impact on many charities and NGOs supporting people in detention.  Frequently individual casework conducted by NGOs involves liaising closely with legally-aided legal practitioners so that detained people are fully aware of their legal situation and can consider what steps to take next.  People who experienced detention tell us that detention impedes individuals’ capacity to meaningfully engage with their cases because it causes stress, depression and makes it very difficult to obtain information.  In their view, having access to legally-aided solicitors is the key to understand their situation and take control of it.  One person, who was detained for a number of years, said that only with the advice of a legally-aided solicitor, he was able to submit a medical report which was crucial for his case.  Another, who was also detained for a number of years, said that he only found out that he was unlawfully detained when his legally-aided solicitor examined his case history and Home Office documents.

[1] We are also concerned about the proposed changes to judicial review legal aid payments. See for example Public Law Project’s draft response and the guide prepared by BIHR for more details.

[2] Data tables Immigration Statistics October – December 2012 Volume 1, see table dt.01

The numbers denote those entering Immigration Removal Centres and Short Term Holding Facilities and are held solely under Immigration Act powers.  They exclude those in police cells, Prison Service establishments, short term holding rooms at ports and airports for less than 24 hours, and those recorded as detained under both criminal and immigration powers and their dependants.

[3] See for instance Chris Grayling’s comment at HC Deb, 18 December 2012, c693 and Lord McNally’s speech at HL Deb 27 March 2013, c1093

[4] See dt.09.q of Detention data tables Immigration Statistics October to December 2012 Volume 2.

[5] Close Campsfield Campaign (2011) Immigration Bail Hearings: A Travesty of Justice?

[6] Close Campsfield Campaign (2013) Still a Travesty: Justice in Immigration Bail Hearings page 46

[7] Bail Guidance for Judges Presiding over Immigration and Asylum Hearings para 19