Ombudsman says delays had profound impact on ability to challenge Home Office decisions
The Parliamentary and Health Service Ombudsman (PHSO) said in a press release yesterday that an investigation found that three vulnerable EU citizens living in the UK were locked out of legal aid to challenge unlawful deportation orders.
PHSO is an independent complaint handling service for complaints that have not been resolved by UK government departments and the NHS. The post of Ombudsman is currently held by Rob Behrens.
Following a case involving three EU citizens in 2017, a Law Centre complained to the Ombudsman after the Legal Aid Agency (LAA) failed to provide legal aid to its clients in a fair and timely way.
The three clients of the Law Centre were sleeping rough and the Home Office had decided that they should be deported. Home Office policy deemed that rough sleepers were not exercising their EU Treaty rights to free movement.
The PHSO's case summary noted: "The Law Centre applied for judicial review of this decision on behalf of its three clients. It argued the Home Office policy was unlawful and was being used to systematically identify and deport EU citizens. At the same time, the Law Centre applied to the Legal Aid Agency for legal aid for each of its three clients. The Legal Aid Agency initially decided against awarding legal aid to two of the EU citizens. One of these decisions was overturned at review, seven weeks from the date of initial application. Another was overturned at appeal stage around 13 weeks after the initial application. It took six weeks for the third EU citizen to be awarded legal aid."
While the Law Centre's case was successful at judicial review, it was unable to recoup all of its costs because its clients had not been getting legal aid when the judicial reviews began.
The Ombudsman's investigation found the LAA had unreasonably delayed reaching decisions on the legal aid applications of the Law Centre's three clients. The delays had a profound impact on their lives and their ability to challenge the Home Office decisions.
In addition, the investigation found that the LAA's decision-making processes were not always fair on applicants, especially those in vulnerable circumstances. The Ombudsman said the LAA should have done something to address the unfairness and not to have done so was maladministration.
Ombudsman Rob Behrens said: "Access to justice through legal representation is a fundamental right. Whatever their circumstances, individuals must be able to hold public bodies to account, challenge unfair processes, and defend their human rights through the justice system. In this case, service failings essentially resulted in one government body blocking individuals from challenging the decisions of another. This sets a dangerous precedent and shows how vulnerable citizens' rights can be when faced with ineffective and discriminatory government policies."
Daniel Rourke of the Public Law Project (PLP) noted that such delays were not uncommon.
Rourke commented: "The recent findings of the Parliamentary and Health Service Ombudsman highlights the LAA's maladministration in one particular context, but long delays occur in many other areas of the LAA's decision making, including where Exceptional Case Funding (ECF) is applied for. … Our analysis revealed that in many cases the need to obtain ECF resulted in delays of almost a year before a person secured a lawyer to help with their case. Such delays result in real injustices to the people our system is designed to protect."