Lack of legal representation leaves migrants facing potential removal and separation of their family
Amnesty International UK has today published a major new report looking at the impact of civil legal aid cuts on access to justice in England. It finds overall that the upshot of the changes is a two-tier justice system: open to those who can afford it, but increasingly closed to the poorest, most vulnerable and most in need of protection.
You can read the 52-page report, Cuts that hurt: The impact of legal aid cuts in England on access to justice, here.
The report focuses on the areas of family, immigration and welfare benefits law.
Section 3.1 of the report (see page 30) covers the impact of legal aid cuts on migrants and refugees, in particular on the right to a family life in immigration cases and family reunification cases for refugees.
Amnesty says the removal of legal aid from immigration and family reunification cases has been profound, with many migrants and refugees left trying to "navigate complex legal processes, with ever changing immigration rules, as they face potential removal and separation of their family or being left trapped in poverty, excluded from work, education and vulnerable to exploitation."
Amnesty disagrees with the government position that right to a family life cases and family reunification cases do not require legal aid because the process of making applications is straightforward, saying the complexity of the law means people can be left without knowing what their legal rights and entitlements are or how to argue their case based on the current law and immigrations rules.
The report states: "Without access to legal help and representation people struggle to advocate effectively for their rights and as a result risk having their right to a family life violated. The reality of this means either deportation to another country, which might for example involve the separation of a parent from their child, or people staying with insecure immigration status in the UK, leaving them destitute and potentially open to exploitation."
Amnesty is also particularly concerned over the impact of legal aid cuts on children and young people, both directly where the child or young person is party to the proceedings, and indirectly in cases where the best interests of the child are at stake.
According to the report, data from the Ministry of Justice confirms that there are almost 2,500 cases each year involving children as claimants in their own right who would no longer get legal aid for their immigration case.
One lawyer told Amnesty: "The idea that children and young people can represent themselves just does not work. This is such a vulnerable group. It's not just that they don't understand legal processes and legal concepts, which they don't, but it's also that they have no idea how to fill forms out properly, what to write, where to send paperwork, where to get advice and who to speak to. Without professional support they simply can't access justice and they can't engage with the legal process."
A youth worker was quoted in the report as saying: "I had one young person I was working with who had to self-represent at the lower asylum and immigration tribunal. He had a good case, but no access to legal aid. We couldn't get him pro bono help in time, so I just accompanied him to the court, explaining to him that I wouldn't be able to help him as I'm not qualified but could give him moral support. He was vulnerable, he didn't know what to expect. I had to explain everything, what the court looks like, what the environment will be, he didn't know, he hadn't seen any of it before. All he could do was tell his story to the judge, he couldn't argue the case law, or argue his case in relation to the immigration rules or run the Article 8 arguments. We asked for an adjournment but the court said no. In the end his appeal was refused."
Amnesty concludes in its report that access to justice in England has been undermined and fundamentally weakened by the cuts to civil legal aid in breach of the UK's international human rights obligations.
"Under international human rights law the introduction of retrogressive austerity driven measures should also not impose a disproportionate and excessive burden on individuals or on a particular sector of the population. Yet that is exactly what they have done. It is the vulnerable and marginalised who already experience the most obstacles in accessing justice and effectively claiming their rights. They are also the most likely to experience the legal problems that are no longer eligible for legal aid. The result is that the cuts have further entrenched socioeconomic inequalities in the justice system and left vulnerable people struggling to access the advice and representation they need," the report states.
Among its recommendations, Amnesty calls on the government to ensure that children and young people have an entitlement to legal aid, regardless of the legal issue at stake, and to restore legal aid to immigration cases raising arguable human rights concerns and family reunification cases.
It is worth noting that the Amnesty report did not address the impact of the large increases in immigration tribunal fees, which took effect from yesterday. Garden Court's Jo Wilding said in a piece on The Conservation website last month that the increases would mean not only will migrants, such as asylum seekers turning 18, face the effects of legal aid cuts and have to do without a legal representative, many will now be unable to appeal because of the prohibitive cost.