ACCESS DENIED = JUSTICE DENIED?

Posted on 17 Oct 2017 by Disha Gowdra

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

‘Legal aid gives a voice to the unheard and light to those overlooked. Without legal aid the marginalized are kept in the shadows. They cannot be seen and they cannot be heard.’

​The Legal Aid, Sentencing and Punishment of Offenders Act that came into force on 1 April 2013, has had an enormous impact on areas of family and civil law in the UK. This new legislation overturns the prior law on legal aid which was available to people on almost all matters of civil law, subject some minute exceptions. Access to justice, especially to the vulnerable section of the society before the inception of the Act therefore, was easily procurable, upholding the UK’s concept of the Rule of Law.

Post 2013, Civil Legal Aid, was cut down, removing areas like Education, Employment, Housing, but more importantly for our concern, Immigration matters. Applicants whose claims may still be within the scope of legal aid include, ones who claim that they are a victim of trafficking or domestic violence, in cases where they contend that their detention under immigration powers is unlawful and situation when they claim protection under Articles 6 of the European Convention on Human Rights. The process of judicial review continues to be available for non-asylum immigration cases, but the fact is that all these exceptions remain narrowly constructed, giving little to no leeway to the applicants.​

LASPO has the largest impact in regard to individuals trying to claim their right to remain through Article 8 of the ECHR, that protects the right to one’s ‘private and family life’ are no longer entitled to stay. Legal advice and representation for migrants becomes very important while invoking the right since usually the applicant would have to be financially eligible and the application he/she makes must have legal merit to have a successful claim. Moreover their request to stay must satisfy the requirements of lawfulness, justice and proportionality set under Article 8(2) of the ECHR.

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The government has justified its stance on legal aid with regards to this matter by stating that the application procedure is straightforward and would not require any additional guidance. But the case is far from true. Legal merit is hard to establish, especially since the immigration laws are ever-changing with at least 8 Acts of Parliament having been introduced in the past 12 years. Lord Taylor, concurring said that, ‘No area is more complex than the whole business of the immigration Rules and the procedures surrounding them’ The complexities with immigration proceedings is set out in the case of Gudanaviciene and others v Director of Legal Aid Casework and the Lord Chancellor.

The Court here stated that there are certain preconditions which determine whether an individual can obtain legal aid, some of them being statutory restrictions on the supply of advice and assistance under the Immigration and Asylum Act 1999, language difficulties and the fact that the law is complex and rapidly evolving. More often than not, applicants are not aware of numerous procedural rules and even small errors in the applications will lead to dismissal. One of the most critical issues highlighted by Amnesty International in this sphere was the problem of evidence gathering and presentation. Expert knowledge is required to examine files and scout out relevant evidence, which is a herculean task for people who have never worked in that field, more so, because they are already stressed about the fact they might be deported. Evidential gaps in cases will inevitably occur since the individuals presenting their case lack the capacity to ascertain the legal challenges in Court. Legal aid is thus critical not only to gather evidence through experts but also in terms of the ability to pay for the legal proceedings. This convolution of law applies not only in the Article 8 context, but even the normal procedure requirements for an immigration application.

The LASPO Act, has tried to provide a safety net through exceptional case funding under section 10, which purports that where a failure to provide funding would breach the Human Rights Act 1998, enforceable rights under the EU law or in cases where the Director determines that funding is appropriate, the government will facilitate the necessary funding. In practice, this scheme has exhibited to be inadequate. By a survey conducted by the Legal Aid Agency in 2013/14 it was recorded that the 1315 applications were made, out of which only 16 where granted funding. The disparity in the statistics shows that in reality not many people are being helped, as unrepresented people cannot even get their applications through in order to be examined for exceptional funding.

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One of the suggestion the government made while enacting the LASPO Act was that the lawyers through pro bono and the non-profit sector would step up and help vulnerable people obtain a range of free legal advice. While pro bono work similar to this has been on going, with cuts to legal aid, it has been observed that the demand exceeds supply. An estimate of 80 million pounds was spent in 2011-12 by the Legal Aid Services on Immigration Legal Aid. Ways to fill the gap when aid would be cut was debated upon by charitable organization, the outcome of which was that not even a tenth of the funding could be raked up by pro bono funders. The difficulty does not stop with only funding, we need to consider the type of cases that are being dealt with. Immigration cases take a long time to follow through, and lawyers working on voluntary basis will not be able to dedicate enough resources and time on the case, which can lead to adverse consequences. There might be emergency situations where clients might have been taken into detention or served with removal notices, and a lawyer who is just dedicating a few hours a week to the case might not be able to deal with such matters quickly and effectively, merely due to the lack of manpower and resources.

The loss of legal aid entails a loss of assistance with fees for disbursements, including translators, court fees and expert reports, therefore even if pro bono assistance through free legal advice is furnished, the issue still remains, in that the case cannot proceed due to the hefty fees of the proceedings. Geographical factors also play an important role in providing free legal aid. The distribution of aid through non-profit organizations across the UK is seen to be uneven. The South West, some regions of the Midlands and parts of North of England are characterized as “advice deserts” due to shortage of organizations that are available to provide help to the vulnerable people. Therefore, there might be numerous people who require legal advice in one region and only a handful of organizations which then leads to difficulties like both for the people and the institution.

The United Kingdom bases its core functioning on the concept of the Rule of Law. It follows that the law must be accessible and so far, as possible intelligible, clear and predictable, the authority exercising power must use it in good faith and must be subject to the same rules and adequate means must be provided to access courts and gain justice. Applying this cardinal principle to the status of immigration matter after the LASPO Act, shows a great amount of discrepancies between what is supposed to be the ideal position and what is in reality the position of law in England. Cuts to legal aid, along with the confusing nature of immigration laws goes against the very principle of rule of law. Access to justice has become a very hard task to achieve due to the cuts and complexities in the law. A crucial example of this is how in removing legal aid, reliance was based on the fact that immigration does not encompass a civil right under article 6 of the ECHR. This sharply contrasts with the requirement that judicial decisions should be based on equality and rights should be given to everyone to present their case, and in the absence of legal aid, this goal cannot be achieved.

The reliance on pro bono therefore, would not solve the problems that are present in our legal system currently. As explained above, the Legal Aid and Sentencing and Punishment of Offenders Act, has impacted negatively on sectors like immigration in essence violating the principle of rule of law. The government’s justification on the lines of pro bono work does not stand, as there is simply not enough time and resources available to help all the people with their cases which in turn leads to lack of effective execution. Sheona York has remarked that although immigration is not the only area of law in which there has been a decline in quality of judicial decision-making, ‘it is the only area in which the loss of legal aid is likely to lead directly to the break-up of families and the removal of long-term residents from the UK in breach of their human rights.

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