With a drastic shortage of providers in the South West, a steering group has proposed a pro bono immigration legal advice clinic in Exeter. As Emma Douglas explains, this would provide much-needed help, as well as evidence of need in the area, and could be the first step towards restoring adequate provision of immigration legal aid services in the region.
The University of Exeter, in collaboration with the University of Law, has looked into the need for a pro bono immigration legal advice clinic in the South West. A steering group has identified a need for provision of advice in cases that are out of scope for legal aid, such as family and private life cases, EEA nationals’ right to stay in the UK, statelessness, refugee family reunion, registration of children as British citizens, and other cases that might not quite satisfy the merits or means tests for legal aid. Currently, exceptional case funding (ECF) applications are being made, although representation from further afield has to be sought for any that are granted as there are no local providers available for referrals.
The clinic’s remit would be to refer anyone eligible for legal aid or who needs representation (where possible), make ECF applications for those who are vulnerable, and provide advice to those who would otherwise fall between the gaps. The clinic would also collect data to evidence both the need for legal aid provision for immigration cases in the South West and that the scope of legal aid provision needs to cover a wider remit than it currently allows for.
Assistance would be provided pro bono, using a combination of qualified lawyers supervising a team of undergraduate law students from the University of Exeter and postgraduate law students from the University of Law. The clinic has received a lot of local interest for the proposed service and hopes to be fully up and running by autumn 2018.
The immigration law landscape in the South West
The clinic’s steering group came together having recognised a need for free immigration legal advice in the region. Devon was an asylum-seeker dispersal area until 2004, and is home to many nationalities including EEA nationals and non-EEA family members. Devon County Council offered places to Afghan interpreters under the interpreters’ resettlement scheme and is currently committed to housing Syrian refugees under the vulnerable persons resettlement scheme, and looking after unaccompanied minors under the national transfer scheme.
There is currently no legal aid provision for immigration cases in Exeter, and nowhere in Devon and Cornwall apart from the Migrant Legal Project, based in Plymouth. The nearest firms and organisations are based in Bristol and South Wales.
There is currently no legal aid provision for immigration cases in Exeter, and nowhere in Devon and Cornwall apart from the Migrant Legal Project (MLP), based in Plymouth. Devon Law Centre closed its doors in 2012 and any firms that previously offered legal aid in such cases no longer do so. The nearest firms and organisations are based in Bristol and South Wales, and travel across the region is difficult and expensive. MLP has a limited legal aid contract to undertake asylum and humanitarian protection cases, and Citizens Advice Exeter is OISC-accredited
1Office of the Immigration Services Commissioner. to level 1, meaning it can offer only basic immigration law advice. The steering group knows of only two private providers of immigration legal advice in Exeter. There are many support organisations and faith groups across Devon but they cannot give legal advice.
The lack of legal aid and advice provision for immigration cases, particularly since the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, has left many people without the advice and representation that they need. The rise in out-of-scope cases, and the increased numbers of those with modest resources who nonetheless no longer satisfy the means test, have resulted in a large number of vulnerable people who cannot access or afford advice and representation at all and cannot effectively represent themselves.
Although ECF is designed to fill the gaps left by the loss of legal aid, it is clear that fewer ECF applications have been submitted and granted than the government anticipated. ECF applications are not simple for individuals to complete: the forms are long and require some legal knowledge. There are many people who are vulnerable and who cannot state why their case merits legal aid. They need lawyers precisely because they do not understand their legal position and cannot represent themselves. Firms and charities have not been applying for ECFs as they are not paid for unsuccessful applications. They have found the process time-consuming and applications are often unsuccessful, even when well prepared.
Issues affecting migrants
Immigration is not a simple set of rules where everyone fits into neat little boxes administered effectively by Home Office caseworkers. The types of issue that come up typically are:
Living in limbo
In deportation cases, social worker and/or forensic psychologist reports may be necessary to secure a positive outcome. These are expensive, and clients and pro bono organisations don’t have the resources to pay for them.
Many migrants live their lives in limbo because they do not have legal status in the UK. This might be because they can’t leave the UK due to problems with documentation, or they feel that they still have a reason to remain in the UK even if the Home Office or the courts have determined otherwise. Some of these people could have been successful in their cases had they obtained good representation and/or good supporting evidence. It seems that more and more evidence is required of participants in immigration cases. For example, in deportation cases, social worker and/or forensic psychologist reports may be necessary to secure a positive outcome. These are expensive, and clients and pro bono organisations don’t have the resources to pay for them.
Situations change
Family relations break down, EEA nationals no longer exercise treaty rights, people suffer long-term illness, they lose their jobs, they may be vulnerable due to health needs such as addiction, or they may be facing abuse. They do not know how or even if they can challenge any negative immigration decisions, their immigration matters may be out of scope or they may not have enough money to pay for a legal adviser. Their rights are pulled out from underneath them.
Government policies/strategies/decision-making
Migrants need help to challenge Home Office policies such as that concerning EEA national rough-sleepers, which was recently found to be unlawful (
R (Gureckis) v Secretary of State for the Home Department and other claims [2017] EWHC 3298 (Admin)).
Long-term unregulated migrants are often detained even where the Home Office knows they cannot be removed or documented. Detention is often prolonged unnecessarily because the detained person cannot find a provider to represent them in a bail application (even though they are entitled to legal aid).
Further, the Home Office often makes erroneous decisions that require resources to rebut. Clients don’t understand the law, or how to represent themselves either rebutting a decision or appealing a decision in the tribunal.
Refugees with other immigration issues
Asylum-seekers are eligible for legal aid in respect of their asylum claims. However, both asylum-seekers and recognised refugees may have other immigration issues for which legal aid is not available but they can’t afford to pay for private advice. This may include where they have a ‘mixed’ case, such as one with asylum and article 8 elements.
Marginal groups
There is often a lack of advice for foreign nationals serving prison sentences or who are still being held in the prison estate but under immigration powers. They could be eligible for legal aid for bail or public funding for judicial review, if unlawfully detained, or they may need help with their immigration cases. Many people do not access legal services because they are geographically or socially isolated.
Knock-on effects
Lack of good legal advice and access to justice have knock-on effects for migrants in terms of uncertainty, mental health difficulties, housing problems, lack of access to services, social isolation and discrimination. These effects are particularly acute for the vulnerable (including children) and those on very low incomes who do not satisfy the means test.
There is also an effect on the courts due to more litigants in person who don’t understand the legal system. This is increasing court and other public expenditure. Immigration law is notoriously complicated and people do not understand their position or the decisions made about them. Without knowing their rights, people cannot correct an erroneous Home Office decision or know that they have an arguable appeal. They may lose rights to stay in the UK.
What is needed (and the limitations of pro bono)
Pro bono provision and triaging only go so far; neither should be an alternative to accessing a proper legal aid service.
People need more than advice; they need representation and decent expert evidence. Various arguments have been put forward regarding the role of pro bono and ways of working such as triaging. In the author’s view, though, pro bono provision and triaging only go so far; neither should be an alternative to accessing a proper legal aid service. Pro bono organisations can act as a safety net and are often the first point of contact for people who are facing problems, especially those who have been affected by recent government policies. They sometimes undertake strategic casework on which they can base any campaigns for improvement or change in the law, but they can’t compensate for the lack of widespread individual casework.
What an immigration law clinic would provide
The clinic would provide a much-needed service to migrants in the South West, where provision is sorely lacking. It would aim to give them effective legal advice on the legal status of their immigration position and on any next steps, while giving students practical legal experience. This work would allow data on need to be collected, which could then be used to support funding applications, campaigns and lobbying, especially in relation to legal aid provision.