Earlier this year, the Government, through the Ministry of Justice (MoJ), announced plans to cut eligibility for legal aid – the money made available by the Government for the costs incurred during legal proceedings. Legal aid provides a vital service; it pays the legal costs that would otherwise stop many people who, for whatever reason, need to use the British legal system to redress what they see as unlawful treatment. The proposed changes to this system seriously threaten the integrity of Article 6 of the European Convention on Human Rights; the right to a fair hearing. The proposals:
Criticism of the proposed reforms to legal aid ranges from articles in the Guardian
and the ‘Public Law for Everyone’
blog, to rigorous responses to the consultation from the likes of The Public Law Project
, the Immigration Lawyers Practitioners’ Association
and the British Institute of Human Rights
, to name but a few. Over 80 QC’s recently wrote to The Daily Telegraph
to register their concerns over the impact the proposals will make on access to justice and equality before the law. The following, draws on these resources to summarise two of the proposals; the residence test and changes to judicial review, and highlight some of their problems.
1. The Residence Test:
The proposed residence test for civil legal aid eligibility will be in two parts. The first is simply that the claimant must be resident in the UK (including British Overseas Territories and Crown Dependencies) at the time that the claim is made. The second is that the claimant must have been legally resident for a continuous period of 12 months at some point prior to the claim and evidence will need to be provided for both parts of the test. The Ministry of Justice justifies these proposals by claiming that they prevent people with a “tenuous” link to the UK claiming public funding for civil cases. An exception does exist for civil claims made by those seeking Asylum in the UK since “this group tends to be among the most vulnerable in society” (see 3.56 in MoJ’s ‘Transforming Legal Aid’
The proposal overlooks a simple fact; if there is cause to bring a claim of mistreatment against a British organisation or individual, this immediately demonstrates the existence of a greater than tenuous link to the UK. However, under this proposal, there would be no legal aid for refused asylum seekers, those illegally present in the UK, trafficked people yet to declare their status or who haven’t yet been in the UK for 12 months, age-disputed children (such as those in the recent Croydon Borough Council Case
) who do not fall within the Asylum exception, immigrants detained indefinitely by the UK, every infant born in the UK who is under 12 months old and many other, often marginalised, groups.
The exception included for asylum seekers is inadequate; whilst recognising asylum seekers as needing extra consideration, the MoJ fails to acknowledge many other equally vulnerable groups. Illegal residents are still susceptible to inhumane treatment, refugees are not immediately safe once granted leave to remain and trafficked individuals who are yet to claim asylum should still have access to legal recourse. Furthermore, the proposals do not account for the logistical problems of proving residence, especially for those without a permanent address or who cannot afford to own documents such as a passport. Instituting the residence test for civil legal aid claims seriously threatens many marginalised and vulnerable groups’ access to justice and, therefore, the central democratic principle of equality before the law, regardless of creed, colour, class or wealth.
2. Judicial Review reform
The proposed changes to legal aid for judicial review – the process by which governmental and other public bodies are held to account for potentially unlawful actions or inactions – would only pay a lawyer if permission was granted by the High Court. Currently, a judicial review application is submitted to the High Court for a decision on whether an oral hearing is justifiable and a lawyer is paid for the costs of submitting that application, regardless of the High Court’s decision. The changes are an effort, according to the MoJ, to limit the number of spurious and unnecessary claims.
Restricting the payment for the permission phase of judicial review will likely have the government’s desired effect; the number of review cases submitted will fall. However, the cases that will no longer be brought to the High Court will undoubtedly include those of public importance. If a lawyer has to risk not being paid for her work, she will likely only take on cases she is sure will be accepted, regardless of their individual merits. Judicial review is used by members of the public to hold public bodies to account for their actions and one recent case (R (on the application of Evans) v The Lord Chancellor and the Secretary of State for Justice  EWHC 1146 (Admin)
) uncovered how the Ministry of Defence had tried to influence the Ministry of Justice to limit legal aid in an effort to prevent the UK’s complicity in torture in Afghanistan coming to light. This example demonstrates, in unequivocal fashion, the need for judicial review in a legislative system. It is central to the separation of powers, allowing the courts to hold the government to account for any unlawful actions. Judicial review can help those who have been failed by the state. For instance, a destitute asylum seeker could call for judicial review of the decision of the National Asylum Support Service to withdraw support. Such cases are in the public interest, and any reforms that limit them are an unjustifiable attack on governmental accountability and equality before the law. Why should I pay attention?
The proposed reforms are, like much of the legal system, complicated and convoluted. They are changes to processes that many of us have never, fortunately, had any experience of. This, however, highlights exactly why the reforms should be resisted; a complex system needs good legal representation to help guide the public through it, thereby facilitating justice. Without public funding for this representation, ‘justice’ becomes dependent upon personal wealth.
Under the proposed changes, the right to a fair hearing is removed for the poorest among us. Asylum seekers, refugees and illegal residents are subject to the same public organisations as any other resident; the police still have the power to arrest and detain them, public organisations still have guidelines to follow when dealing with them and, importantly, the potential for mistreatment at the hands of others is very real. The idea that a “tenuous” connection with the UK removes the right to challenge any such mistreatment is farcical; no such limitation exists for privately funded cases.
According to the MoJ, this attack on the right to fair trial and equality before the law is justifiable as savings must be made. The official prediction is that these reforms will save the public purse £220 million by the year 2018/2019 (consultation paper 1.3) . The consultation paper says that those planning to respond are “advised to keep the overall fiscal context firmly in mind” (consultation paper, 1.4). A £220 million saving is the equivalent to 0.7% of HMRC’s most recent estimate for the amount of tax avoided and unpaid (£32 billion, see here
). The ‘overall fiscal context’ the Ministry of Justice refers to exposes the relative value this government places on the right to legal representation for the poorest and most vulnerable in society. So what can I do?
There are a series of things that you can do to help:
- Respond to the consultation by 4th June 2013. Many templates are available, such as the Young Legal Aid Lawyers' and Detention Action’s.
- Write to your MP and ask him to write to Chris Grayling, the Minister for Justice, to urge him to abandon the unjust and unworkable proposals. Find your MP’s contact details here.
- Sign Save UK Justice’s online petition here – if it reaches 100,000 signatures, the issue will be debated in parliament.
- If you are a service user/organisation, forge links with the workers in the legal profession and civil service who are expected to implement the cuts.
- If you are one such worker, work within your workplace organisation/trade union (i.e. PCS) to develop resistance – and be creative about involving the ‘service user’.
This situation will not improve unless public pressure forces it to. The MoJ must be made to scrap the proposals that make a mockery of our supposed commitment to equality before the law. Notes
Other reforms are proposed, including a change to the civil merits test to remove legal aid for cases deemed to be ‘borderline’, changes to the prison law eligibility and a wholesale change in the way in which legal aid cases are offered to solicitors firms. For more in-depth description of all the proposals see the consultation paper. For criticisms see the following commentaries and draft responses.
All information is drawn from the linked sources, and is, to the best of RAPAR’s knowledge, accurate. Any discrepancies, misinterpretations or omissions are entirely accidental. Please contact us if any of these exist.Garden Court North Save UK JusticePLP Draft Response bullet pointsSave UK JusticePLP: Unjust and Unworkable
UNITE AGAINST FASCISMGREATER MANCHESTER - PEACEFUL PROTEST AGAINST MISUSE OF CENOTAPH BY RACIST THUGS OF EDL -
Download leaflet hereSATURDAY 1ST JUNE, ASSEMBLE 09.30am. St Peter’s Square (beside Metrolink), Manchester, M2 3DF Supported by:
Cllr Daniel Gillard (Labour, Withington), Cllr Julie Reid (Labour, Gorton South), Dr Aziz (Muslim Association Britain), Bolton UNISON, Manchester and Salford NUJ, Salford City UNISON, Nick Wigmore NUT (NEC and Rochdale Sec (pc)), Darren Leach PCS Bolton, Colette Williams (BARAC), Stop The War Greater Manchester ... more names/orgs being confirmed
The English Defence League and the British National Party are seeking to exploit the horrific murder of Lee Rigby by whipping up hatred and division, which has already seen violent reprisals against the Muslim community including a series of arson attacks on mosques. The government’s hotline is reporting that Islamophobic hate crimes have been at 10 times their usual rate since last Wednesday.YOU CAN:CONTACT:
On the 23rd May, Amnesty International released their report into the state of human rights throughout the world in 2012 (see here
). The report cites a “growing clamour” for justice after a year in which people have taken to the streets and to the internet to register their disapproval at governments too willing to sacrifice human rights for stricter state security and border controls.
Despite the on-going struggle against human rights abuses, the report acknowledges that there is still a long way to go before equity can be achieved for many groups. Refugees are consistently treated as the new underclass of society; having fled their homes in an effort to escape conflict, poverty or mistreatment, they are then met with disdain, destitution and famine.
Unfortunately, the disregard for the rights of vulnerable people is not only a trait of far off dictatorships and countries at war; the report highlights the border control measures of the EU that put the safety of migrants and asylum seekers at risk. This is further stoked by populist political rhetoric that scapegoats migrants and asylum seekers, thereby fuelling xenophobia and racial hatred (see RAPAR’s comment here
The repeated imprisonment and detention of migrants and asylum seekers is a feature of many liberal democratic countries’ border policies, with Amnesty reporting the worst case scenarios involving foreign nationals being held in metal crates and shipping containers. The inhumane practice of imprisonment without cause must stop.
knows of 15.2 million refugees in the world; Syrians, Malians, Congolese, Palestinians, Sudanese and many other peoples are forced to flee their homes for fear of their lives. This number does not account for those who are stateless or internally displaced, leaving the estimate of the number of forcibly displaced people at 42.5 million. 42.5 million people live without the safety of the rule of law, without a legal system to fight for their rights, without the means to earn a living, and often, without enough food and water; 42.5 million people are left in limbo.
The case of 15-year-old Malala Yousafzai, shot in the head by the Taliban for claiming her right to an education, serves as a vivid reminder of both the support for, and work still to be done in the name of human rights. 65 years after the UN Declaration of Human Rights was adopted, it is pertinent to remember that it is often those who are most vulnerable who still do not receive the simple rights and privileges that the Declaration enshrines. All information comes from links embedded in the text, "Protecting the rights of people on the move" the op-ed from Salil Shetty, Secretary General of Amnesty International (available here) or the article on the report published by Amnesty (available here).
The increase in attacks on immigration by all major political parties looks as if it may escalate over the next few months – with politicians' assertions about “benefit tourism” bearing no resemblance to the reality of life for people who come to the UK looking for work or seeking asylum.
This week, the Government said it would prioritise a new parliamentary Bill which will restrict migrants' access to benefits, the NHS and other services even further. Debates around the new Bill will be held in a climate in which the Prime Minister has said that, where once migrants came to this country for work and trade, they are now coming to claim benefits.
The attacks on migrants are not confined to the Government however. The Labour Opposition claims that immigration is too high and companies should be deterred from employing foreign workers. The far right parties have always blamed unemployment and cuts in services on immigration – and now it seems that all major parties are adding to these electoral machine-rooted efforts to whip up scapegoating. It may be, in part, a response to the rise of UKIP but the major parties' collusion in the demonisation of migrants is dangerous and irresponsible.
RAPAR condemns all statements against migrants made by any political party. We do not blame migrants for the strains on public services or the level of unemployment. Migrants to the UK are subjected to very stringent checks before they are allowed to either work or to claim any benefits whatsoever and refugees are left on meagre payments, and made to stay where they are placed – including imprisoned in detention centres – until their asylum applications are decided.
It is the Coalition Government - not migrants - who have set out to destroy the public services that generations of workers have fought for: social housing, education, the NHS, public baths and libraries. It will take a united fightback to resist the cuts to these services and legislation like the bedroom tax which may soon lead to people losing their homes.
We are pleased that Manchester Trades Union Council has made a public statement criticising attacks on migrants. We also welcome the many community and trade union campaigns set up to resist the Bedroom Tax, the new Universal Credit currently being piloted in the North West, and cuts in jobs and public services. This week, the Manchester Evening News launched its own “Ditch the Bedroom Tax” campaign highlighting the cruelty of a legislation which, amongst other things, will force many disabled people and their carers to live apart.
Evictions, destitution, food handouts, detention and severely restricted benefits have been the norm for many years for refugees who have sought asylum in the UK. Now, as a result of the Bedroom Tax and the Universal Credit system, social housing tenants will be threatened with eviction. Increasing numbers of people are having to use food banks in order to feed their families. And there are even suggestions that the Azure card, given to people seeking asylum (instead of money) to buy food from supermarkets, will be extended to unemployed people.
There is a very real chance that the pernicious system which successive governments have spent years perfecting in order to “control” refugees will be extended to unemployed and low paid workers throughout the UK.
RAPAR is based in Manchester, a multi-cultural city, and we are committed to building unity between all workers and defending us all against any attempts to divide and rule. Migrants must not be used as scapegoats for the financial crisis and the failed austerity policies of this government.
My name is Aminet Mary Adenugba and I am a victim of human trafficking.
I was brought to the UK from Nigeria in 2004 and was exploited and abused for three years. I managed to escape from that life but even after I ran away, many other people in this country misused me because I was alone and vulnerable. Now I am safe and I have friends here who protect me but it is still not safe for me to return to Nigeria. This is my story:
I was born into a Muslim family on November 20th 1970. My dad was a bus driver and my mum was a street trader. I had two brothers and two sisters and I was the oldest. We lived in Lagos. I went to the local school where there were both Muslims and Christians. All my friends were Christians and in my teens I decided to convert to Christianity. My dad, who had always been hostile to me from birth, was very angry but my mum protected me and tried to keep me safe. He and my brothers started to threaten me and I was forced to leave.
I went to live in a small flat and worked as a hairdresser. Then I met a man and found that I was pregnant. My father was furious; he said that I had brought shame on the family, but again my mother helped me. I gave birth to my baby daughter on June 22nd 1998.
One day, when my daughter was about three and half years old, I went to a wedding while my mother looked after her. While I was at the wedding, there was an explosion in Lagos in which my mum and sisters were killed. My little girl was never found. My father accused me of witchcraft and said I had brought this misfortune on the family. He said that I must die. I had to go into hiding.
A local church tried to help me but I was in a bad way: destitute, homeless, no job or money and my beloved mother dead and little girl gone. I tried to commit suicide. When I came out of hospital, the pastor introduced me to a local black man, Uncle Kay. He was a respected member of the church. He said he would help to take me somewhere I would be safe. He gave me a new name and date of birth, and brought me to the UK.
In London I was forced to work as a prostitute. If there were no men to be serviced, I was made to work in a hair salon. I kept escaping but kept getting caught again. Uncle Kay shouted and starved me. Then he brought me to Manchester and gave me to Uncle Philip, a white English man. Once again I was imprisoned and forced to work as a prostitute or used to clean offices or houses or work as a hairdresser. I was a slave.
Late one night, when we were out, Uncle Philip and I were approached by the police and I was taken to the police station. I was very scared and confused and harmed myself. I was too frightened to tell them about the trafficking. The police released me after telling me to claim asylum at Dallas Court, but I didn’t understand what that meant. I was frightened that Uncle Philip would find me. After leaving the police station, I met some people who took me in but they started exploiting me. This happened several times because I was destitute and very vulnerable. It went on for three years.
Then I met some people at RAPAR who helped me to help myself. They found me a safe place to live, put me in touch with the Poppy Project and assisted me in writing my story.
Please give vital support to Olayinka's campaign
by sending letters to the Home Secretary Theresa May bringing Olayinka's case to her attention and urging her to intervene. Since Olayinka is currently attending school, letters from teachers or other education professionals would be particularly appropriate; template available here
. Letters from anybody else are also extremely helpful; more general template here
. In any correspondence please quote Olayinka's Home Office reference O1144171/06, and please let us know at email@example.com that you have sent a letter. Many thanks.
See flyer below and Olayinka's campaign page
. The event is to raise funds to support Olayinka's legal costs, to publicise her campaign, and to raise awareness about the issues Olayinka faces. Refreshments and entertainment, including face painting for the kids, provided! Please download the flyer here
See flyer below. For more details and background see Mary's campaign page
- Solidarity vigil on the steps of the Friends' Meeting Housing, Mount Street, Manchester, on Saturday April 20th, 11.30am-12.30
- Tribunal hearing 10am, Fri 10th May. Supporters to gather from 9.30am outside Asylum and Immigration Tribunal Court, Mosley Street (behind Mosley Street tram stop), Manchester.
22/03/13, Diane Taylor - hereMinisters admit trying to forcibly remove tens of thousands of peopleSystem 'in chaos' as nearly half of enforced removals are cancelled, many of them after successful legal challenges
The government has admitted that it has tried to forcibly remove tens of thousands of people from the UK unlawfully.
The figures were disclosed to the Guardian after a freedom of information
request which showed that almost half of the enforced removals the government attempted were cancelled.
Critics say the high number of cancellations and attempted unlawful removals are signs of a system in chaos.
In 2012, 14,435 enforced removals took place but between January and November 11,085 were cancelled. The figure for the full year is likely to be about 12,000 cancelled removals, almost half of the total.
Of those cancelled, 4,569 were halted because the courts said they were unlawful. In the past five years, 48,858 removals have been cancelled, 22,079 of them owing to successful legal challenges.
The figures relate to asylum seekers and non-asylum seekers; some people may have been subjected to more than one cancelled removal attempt. There have also been 3,753 cancelled deportations of people who have committed criminal offences, 1,450 of which were because of successful legal challenges.
Some enforced removals were cancelled because of problems with escorting the people out of the country. In 2011, 114 removals were cancelled owing to escort problems but last year this figure quadrupled to 450.
The high number of cancelled removals has a variety of implications. There is an estimated cost ofThe administration costs of removing each person is £186 for each cancelled removal – a total cost of almost £10m over the last five years, excluding the cost of extra detention, courts and cancelled flights. In his recent evidence to the House of Lords justice committee, the lord chief justice said that immigration, asylum and nationality judicial reviews took up a vast amount of the court's time.
Keith Vaz, chair of the Commons home affairs select committee, said: "I am very concerned to note the number of enforced removals cancelled since 2008.
"These cancellations cause distress and uncertainty for deportees. The committee has been very clear that the quality of initial decision-making by the UK Border Agency must be improved. It is unacceptable that the number cancelled due to escort problems has quadrupled in just one year. UKBA needs to look carefully at their procurement processes and ensure they keep an up-to-date register of high-risk companies, as the committee recommended."
James Packer, head of immigration at Duncan Lewis solicitors, said a system in which almost half of enforced removals were cancelled, many because of successful legal challenges, could not be described as working effectively.
"UKBA consistently makes decisions to remove on the basis of information that is out of date – often years out of date – and then systematically delays its consideration of any new information until the 11th hour. A system run in this manner will inevitably result in last-minute cancellations of removal in many cases. This is a separate issue to the errors that pervade the shambolic administration of the UK's immigration system."
Emma Mlotshwa, of the charity Medical Justice, which provides support to detainees, many of whom face enforced removal, said: "This is a system in chaos. We deal with countless cases of enforced removals which are cancelled. The whole thing causes needless trauma to detainees. Taking someone to the plane and then back to a detention centre, keeping them under imminent threat of deportation, is inhuman and treats detainees no better than cargo."
UKBA said: "Where UKBA and the courts find that an individual has no right to be in the UK we expect them to leave. Where they refuse, we will enforce their removal.
"We will investigate any allegations that contractors are not meeting UKBA's expectations.
"If standards are not met then UKBA can take appropriate action to recoup payments in accordance with the agreed contractual arrangements. 'Escorting issues' cover a range of issues and do not relate on every occasion to a failure by the contractor." Ukba added that some of those whose enforced removals were halted were ultimately found not to be entitled to stay in the UK and that most air fares were refundable or rebookable.Case study: Winston, 32, refugee from Zimbabwe
"I was a member of the Movement for Democratic Change and was attacked and beaten by government forces. My house was burnt down and my family was scattered. Two weeks after I arrived in the UK in 2007 my asylum claim was refused. I was placed in detention between March and November 2010. UKBA tried to remove me four times. Each time it was very traumatic. I was placed in an isolation cell before being taken to the airport. All I could think about was that the British government was going to deliver me back into the hands of the people who had persecuted me. Each time I was taken to the airport my removal was cancelled. In July 2012 I was granted refugee status."
Mary's tribunal hearing has been adjourned to May 10th at 10am, Asylum and Immigration Tribunal Court, Mosley Street, Manchester - assemble outside at 9:30. Public meeting on Friday 15th March (see here
) still same time, same place, and with plenty to discuss.