Originally blogged here: Detention Inquiry, by The Detention Forum.
‘Unauthorised, discriminatory and impossible to justify’ – the Divisional Court gives judgment on the Lord Chancellor’s civil legal aid residence test
Today (July 15th) a specially convened three-judge Divisional Court handed down judgement on the Lord Chancellor’s decision to radically alter civil legal aid eligibility rules by introducing a ‘residence test’. The test would withhold legal aid from recent, lawful migrants and irregular migrants including children born here many years ago. British nationals born and living abroad would fail the test, as would those unable to prove past residence including women fleeing domestic violence, pre-school age children and the homeless. Despite the Parliamentary Joint Committees on Statutory Instruments and Human Rights both expressing concerns over its legality, the controversial test was approved by the House of Commons last week. 32 leading NGOs have since issued a joint briefing calling on the House of Lords to reject the test using a ‘fatal motion’ on 21 July.
In today’s 40-page unanimous judgement, the Court finds that the test is unlawful, that the Lord Chancellor exceeded his statutory powers when devising it and that it would discriminate against ‘foreigners’ without justification.
The test case was brought on behalf of the Public Law Project, a small legal charity that promotes access to justice. It instructed solicitors John Halford and Stephen Grosz at Bindmans LLP and barristers Michael Fordham QC, Ben Jaffey, Naina Patel and Alison Pickup.
Jo Hickman of the Public Law Project said today:
“We are heartened by this judgment, which embodies and articulates the finest traditions of our justice system and provides a timely illustration of the importance of judicial review as a check on unlawful executive action.”
John Halford of Bindmans said today:
“Using powers that were never his to exercise, the Lord Chancellor has attempted to refashion the legal aid scheme into an instrument of discrimination so that many of the cases Parliament itself identified as most worthy of support could never be taken. The Court’s judgement on that attempt is emphatic: it is simply unacceptable in a country where all are equal in the eyes of the law. Legal aid is, and must remain, the means to safeguard equality in our Courts, regardless of people’s origins, nationality or place of residence.”
Giving the Court’s lead judgment, Lord Justice Moses said at paragraphs 45 and 50:
“The Lord Chancellor now asserts a power to introduce secondary legislation which excludes, from those adjudged to have the highest priority need, those whose need is just as great, but whose connection with the United Kingdom is weaker.. the instrument is ultra vires and unlawful. I conclude that LASPO does not permit such a criterion to be introduced by secondary legislation. It extends the scope and purpose of the statute and is, accordingly, outwith the power conferred ….”
adding at paragraph 60:
“It is and was beyond question that the introduction of such a test was discriminatory. Indeed, that is its declared purpose.”
At paragraphs 82 and 83 the Court held:
“Within the system provided in Schedule 1 of LASPO, the United Kingdom is not permitted to discriminate against non-residents on the grounds that to do so might save costs…Certainly it is not possible to justify such discrimination in an area where all are equally subject to the law, resident or not, and equally entitled to its protection, resident or not. In my judgement, a residence test cannot be justified in relation to the enforcement of domestic law or the protection afforded by domestic law, which is applicable to all equally, provided they are within its jurisdiction. In the context of a discriminatory provision relating to legal assistance, invoking public confidence amounts to little more than reliance on public prejudice.”
At paragraphs 27, 29, 30 and 31, the judgement highlights examples from the hundreds of pages of evidence filed in the case giving real-life examples of people who would be denied legal aid in future:
“It is not difficult to identify those on whom the application of the residence test would have a direct impact. Families of recently arrived children with special educational needs, whose access to education depends on proper provision being made to meet their additional needs, will be unable to access legal help and advice…individuals who lack mental capacity and are protected persons for litigation purposes, and therefore unable to litigate without a litigation friend, but who cannot meet the residence test, will be unable to access legal advice and representation.[for example] ‘P’ a severely learning disabled adult, who had been ‘forced to live in a dog kennel outside the house, had been beaten regularly by his brother and mother, and starved over an extensive period of time’…the residence test will exclude from access to legal aid individuals resident abroad who have been subject to serious abuses at the hands of UK forces.”
Notes for editors:
The Public Law Project (PLP) is an independent, national legal charity which aims to improve access to justice for those whose access is restricted by poverty, discrimination or other similar barriers. Bindmans is one of the UK’s leading solicitors’ firms specialising in judicial review, human rights and civil liberties.
The Government’s intention had been to introduce the residence test through secondary legislation, the Legal Aid Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2014. The House of Commons voted to approve the draft order last week. The Lords vote is scheduled for 21 July 2014. It is not known whether the draft regulations will be withdrawn before then.
The impact of the residence test is discussed in a briefing produced by the Public Law Project and Bindmans for the Lords debate:
The briefing is supported by 32 leading NGOswhich are calling for the Lords to vote against the residence test regulations in a ‘fatal motion’. They are the Public Law Project, Refuge, Liberty, Justice, Just For Kids Law, Redress, Corum Children’s Legal Centre, Children’s Rights Alliance For England, Child Poverty Action Group, Reprieve, Prisoners Advice Service, Redress, Shelter, The AIRE Centre, Housing Law Practitioners’ Association, Legal Action Group, The Howard League For Penal Reform, Disability Law Service, Just Rights, Southall Black Sisters, Immigration Law Practitioners Association, ECPAT UK, INQUEST, Helen Bamber Foundation, Mind, Asylum Support Appeals Project, Law Centres Federation, Medical Justice, Disability Law Service,Legal Aid Practitioners’ Group, Refugee Counciland Rights Watch UK.
Civil legal aid was first introduced through the Legal Advice and Assistance Act 1949. Since then, its availability has always depended on three things: the type of case must be prioritised in the legal aid scheme; it must be strong and important enough to justify public money being spent on it; and the financial resources of the person involved must be so limited that it would be impossible for them to pay for a lawyer themselves. These features have lasted 65 years.
If implemented, the residence test will fundamentally change all this. For identical, equally strong and important cases, all of which are prioritised for funding in the LASPO scheme, some people will receive legal aid whereas others will receive no help at all. The only difference will be ‘residence’ status i.e. whether those who need legal aid are physically here and can prove they have lived here lawfully for more than 12 months. Who will be excluded is obvious: they will be recent migrants and their children, irregular migrants and their children (including those born in the UK many years ago) and those who cannot prove where they have been living for practical reasons e.g. domestic violence victims who have been driven out of their homes, homeless people and pre-school age children.
The Government claims there is a ‘safety net’ in the form of section 10 LASPO ‘exceptional funding’. But this is currently granted in less than 2% of non-inquest cases and then only after weeks of debate between the Legal Aid Agency and applicants’ lawyers about whether human rights will be breached if it is withheld. Only one person has ever been granted exceptional funding without a lawyer’s help, yet lawyers’ time in making applications for those who fail the residence test will not be funded.
In any event, the Government does not claim exceptional funding will meet the need created by the residence test; it accepts that people with strong, high priority cases who cannot afford to pursue them will be left without advice and representation. They will inevitably include vulnerable children, mentally incapacitated adults, along with victims of abuse, trafficking and other crimes because, although some types of case brought by these people are exempted, many are not.
Original text by Immigration Law Practitioners’ Association.
Becoming Undocumented and Staying Undocumented: The Routes to Irregularity and No Way Back
On the 16th July at Central Hall, Oldham Street, Manchester the Centre for Criminology and Criminal Justice (University of Manchester) is running a free event as part of a research project. This Policy Engagement feedback event is about presenting the strategy of the Rights of Undocumented Migrants project to migrant community organisations, undocumented migrants and asylum seekers. Amongst those invited are local and national policy makers who will present their views and debate policy issues and concerns. There will be a Q&A session during the afternoon.
The event is also designed to be a celebration of the positive work of organisations across Greater Manchester that help and support undocumented migrants. There will be free food and entertainment provided and information stalls from a range of migrant community organisations on what help, support and advice is available for undocumented migrants in the area.
For more on the event click to view the project’s Poster.
For more information on how to attend click to view the event Invitation.
WHY ‘UNDOCUMENTED’ AND NEVER ‘ILLEGAL’
“Since the word ‘illegal’ has become a stigma in my everyday dealing with people, I started to ask myself whether I was really illegal. Of course, I am not and will never be. I am undocumented.”
- Undocumented migrant worker from the Philippines, living in the Netherlands
PICUM promotes accurate, humane terminology and strictly avoids using the term ‘illegal migrant’. ‘Undocumented migrant’ and/or ‘irregular migrant’ are internationally recognised terms with equivalents in all languages.
PICUM’s Terminology Leaflet provides reasons why not to use the term ‘illegal migrant’, a lexicon with translations of ‘undocumented migrant’ and/or ‘irregular migrant’ in all EU languages and an overview of key institutions who have already committed to accurate terminology in reference to undocumented migrants. Launched in June 2014, the leaflet serves as a major resource to support our network’s promotion of accurate and human terminology.
“It’s notable that the countries that most pride themselves on their commitment to equality, human rights, and democracy (like the United States and the western European countries) are precisely those that, in the late twentieth century, invented a new status (‘illegal’) in order to deprive some of their residents of access to equality, human rights, and democracy. I am honored to lend my name to PICUM’s campaign to end the use of the term ‘illegal’ and to challenge the whole concept of illegality as a status.”
-Aviva Chomsky, Professor of History and Coordinator of Latin American Studies Salem State University, USA1.
Many institutions and individuals have already committed to avoid using the term ‘illegal migrant’ including policymakers, human rights advocates, and media. You can follow their example and engage yourself in the promotion of recognised accurate terminology.
WHAT CAN YOU DO?
- Commit yourself to using fair terminology when referring to undocumented migrants.
- Share the terminology leaflet with your contacts and inform friends or colleagues of the importance to use ‘undocumented’ and ‘irregular’ or the equivalent in your language.If media, policymakers etc. speak in discriminatory language about undocumented migrants, send a respond in form of a letter or social media and share the source with PICUM.
- Follow and engage in the debate on social media (Twitter: #WordsMatter).
- Send us your written quote or statement saying why you think accurate terminology is important, this can also be a personal story or based on the experience of an undocumented person you know.
- Send us a photo showing your terminology message in your language.Send us a video showing why it is important to use fair language.
For more information or to submit statements, photos, and videos, contact:
Elisabeth Schmidt-Hieber, PICUM Communications Officer at: elisabeth(at)picum.org
1Aviva Chomsky is also author of the book “How Immigration Became Illegal” (Beacon Press, 2014).
My Journey is a multimedia migrant storytelling project run by the Migrants Resource Centre and funded by the City Bridge Trust. Between November 2013 and November 2014, media and arts professionals are training a group of migrants in storytelling through photography, radio, film and comic strips. Their website has podcasts, videos, comic strips and photographs, made by parents, students, workers, asylum seekers, and refugees, all telling honest, moving and real stories. They are adding work to the site all the time and a showcase exhibition will take place in autumn 2014.
Listen to a podcast from Hasani:
Read the comic strip ‘Goodbye London’ from Viola
And more stories on the My Journey blog.