Migrant children navigating the tribunal system alone

Posted on 08 Jun 2017 by Roshni Popli

Disclaimer: The views expressed below are that of the individual author.

Cuts to legal aid have ‘decimated access to justice’ says Amnesty International, creating a ‘two-tier civil justice system’ open only to those who can afford it. In 2015, the Guardian revealed that children were being forced to represent themselves as litigants in person (LiP) in immigration tribunals following the enactment of the controversial Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). The Act ended entitlement to legal aid in immigration cases as part of a £350m savings programme. Legal aid is still available in asylum cases.

Access to justice is an illusory concept in post-LASPO Britain, denied to those most in need, undermining the right to an effective remedy, the right to equality before the law and the right to a fair trial. According to government data, the changes have left at least 2,500 cases each year where children are the claimants in their own immigration cases and are not eligible for legal aid. The Children’s Society presumes that this is just the tip of the ice-berg because many separated migrant children are not visible and go under the radar.

Children who are no longer able to access free legal advice and support for their immigration cases as of LASPO include trafficked children who have not been formally identified, children with unresolved immigration issues following the death of a parent and stateless children. These individuals are having to make applications to stay in the UK on their own and without support, acting as their own solicitors in preparation. It is an inevitability that separated migrant children will have contact with the immigration system at some point in their lives due to their precarious status, but they no longer have access to legal aid to help them resolve their issues.​

During the passage of the LASPO Bill, the Government proposed that instead of getting legal aid, unaccompanied children would receive assistance from law centres and pro bono services. The 2015 MOJ report, Monitoring the early impacts of the Legal Aid, Sentencing and Punishment of Offenders Act (2012) on onward immigration appeals, reported that legal aid reforms had not adversely affected immigration appeals. The report, also concluded that lawyers were doing more pro bono work. Legal professionals responded arguing that this increase in pro bono efforts was unsustainable. The Government had expected the pro bono sector to fill the gaps left by the cuts, however, the cuts had also contributed towards a reduction in the availability of free advice services. Research carried out by The Children’s Society has found that between 2012 and 2014, there was a decrease of almost 50% in the number of non-fee charging services regulated to deal with immigration appeals and representation. While provision has decreased, demand has massively increased. LawWorks, an organisation with pro bono clinics across the UK, reported that there had been an increase in demand at 95% of its clinics between April 2014 and March 2015 and 74% had experienced an increase in the level of complexity of the legal matters in issue.

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Provision of legal advice and representation across the country is also extremely uneven and there are ‘advice deserts’ in places like the South West and the North of England.

Legal aid cuts have led to a substantial rise in the number of LiP. Research has shown that LiP are likely to lack sufficient specialist knowledge and skills required to conduct their case to an appropriate standard, and these difficulties are explicitly demonstrated by young and vulnerable migrant LiP. These youngsters are faced with a choice: pay for legal representation or advice, represent themselves or be excluded from the justice system. Under Article 6 of the European Convention on Human Rights (ECHR), children, like all citizens have the right to a fair trial. Denying child migrants access to legal aid risks breaching this right.

Where the law enacted by Parliament fails the litigants, judges are having to use more of court’s time to reach a just solution, feeling morally obliged to thoroughly question appellants so to ‘tease out the facts of the case’ introducing more fairness into the proceedings. Anecdotal evidence from judges estimates that cases involving LiP take around 50% longer on average reports the Law Society.

In June 2017, the Law Society released its review of LASPO, years after its measures came into force. The report highlights access to justice as one of three main areas of concern that the Government must address but also recognises the wider impact of the cuts on the justice system in general, acknowledging the massive increase in LiP. The Children’s Society are launching a legal challenge of the government’s refusal to bring immigration applications for separated and unaccompanied children within scope of legal aid. Amnesty International calls for all under-18s to be given legal aid, regardless of the circumstance.

The government has announced a review of its controversial cuts to legal aid by April 2018 and it will be interesting to see whether the rule of law is really just a make believe in post-LASPO Britain.

Tags: mind_the_gap /

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