Identifying litigation friends for vulnerable migrants

A person who lacks the requisite mental capacity to litigate in the tribunal or courts requires what is called a ‘litigation friend’ to conduct proceedings on their behalf. The role of a litigation friend is crucial in ensuring that individuals with mental health disabilities are able to participate effectively in litigation and therefore, access the courts.

In the immigration tribunals context, the power to appoint a litigation friend for litigants who lack litigation capacity has been clearly established since the case of R (C ) v FTT and others [2016] EWHC 707 and of AM (Afghanistan) v SSHD [2017] EWCA Civ 1123.

However, while the power to appoint a litigation friend is clear, there is significant difficulties in identifying and securing a litigation friends to act on behalf of vulnerable migrants and asylum seekers who lack litigation capacity. Many migrants and asylum seekers often do not have significant support network in the UK including friends or families who would be able to step into the role of a litigation friend.

Without one, proceedings would not be able to proceed fairly. Legal representatives also will not be able to act on behalf of a client who is not able to give them capacitious instructions. This means that the appeal will halt to a standstill, leaving the immigration issues unresolved.

Here at MigrantsOrganise one of our charity’s members, for example, had his case adjourned for close to 2 years as he was not able to find anyone to act as a litigation friend on his behalf. His solicitor contacted social services, and various different charities to no avail. In the meantime, due to his unresolved immigration status, our member’s benefits were stopped and he accrued rent arrears of more than £10,000. When we started working with him, he was facing threats of eviction.

The Official Solicitor

In other jurisdictions, it would be the role of the Official Solicitor to act as a litigation friends of last resort. The Official Solicitor is an arms-length body of the Ministry of Justice whose responsibilities include acting as a litigation friend of last resort. They regularly act in the High Court and the Court of Protection, for example, on behalf of litigants who lack litigation capacity. The Official Solicitor has three standard criteria that have to be fulfilled before they act as a litigation friend of last resort, namely:

1. That the person concerned lacks capacity to conduct the proceedings (she requires evidence of the lack of capacity) or is a child who does not have permission of the court to conduct proceedings without a litigation friend;                                                                   
2. That the Official Solicitor as litigation friend of last resort; and
3. That there is security for the costs of legal representation for the person concerned.

Over the past 6 years, it has been Migrants Organiser experience that the Official Solicitor has routinely been refusing to act in the tribunal system including the immigration tribunal, even when all of the criteria above have been satisfied. The Official Solicitor often states that they would only act in the tribunals in “exceptional circumstances”. Below is an example of their refusal:

“The Official Solicitor will of course, consider acting as a litigation friend to assist litigants who lack capacity to conduct proceedings in matters before a tribunal in exceptional circumstances, and subject to her acceptance criteria being met. Having considered the details of this matter however, she does not consider this to be such a case and accordingly is unwilling to accept appointment as a litigation friend in this matter.”

It was unclear what constituted “exceptional circumstances” and why matters in front of the tribunals, including immigration tribunals, warranted an additional criterion which was not required in other jurisdictions.

Migrants Mental Capacity Advocacy project

Since October 2017, Migrants Organise has run the Migrants Mental Capacity Advocacy (MMCA) project, partly to address this issue. We have a network of 25 trained immigration and welfare professionals who we can match as litigation friends of last resort in the immigration tribunals. So far, we supported 27 appellants through the appointment of a litigation friend to provide instructions on behalf of appellants who lack capacity to instruct lawyers in their appeals.

Our experience in the project has been essential in gathering a robust evidence to show the gap in the system. In our experience, awareness about mental capacity as it relates to the immigration context can be low across the board, whether amongst support workers, legal representatives, the Home Office and the tribunals. We believe that there are often hidden cases where the issue of mental capacity and the need for litigation friends are not properly explored.

For example, I have worked with an Iranian asylum seeker with dissociative amnesia who has now been granted humanitarian protection following a fresh claim. In his initial asylum claim, his legal representative submitted medical evidence about his mental health conditions, combined with an unsigned witness statement without really explaining the probative value of such a statement. The Home Office refused the claim on the basis that he was not credible, and when the case went to appeal the issue of mental capacity also was not raised, nor was a litigation friend appointed. A recent Freedom of Information request we submitted to the Ministry of Justice indicates that the tribunal does not keep records of details about litigation friend requests in their database.

Over the years, we have used our experience in the project to try to show the Ministry of Justice and the Official Solicitor the extent of the issue and the need for a long-term solution. We have been clear from the start that the MMCA project is a small project which cannot replace a sustainable, properly funded system. In our view, the most effective solution would be to fund the Official Solicitor to act as litigation friend of last resort in the immigration tribunals.

Legal Challenge

In August 2022, we finally decided to bring a legal challenge against the Ministry of Justice for their ongoing failure to provide a system of litigation friend of last resort in the Immigration Tribunals. Represented by Wilsons Solicitors LLP and Alasdair Mackenzie and Sophy Miles from Doughty Street Chambers, we sent a pre-action protocol letter against the Ministry of Justice and the Official Solicitor.

The Ministry of Justice responded to our pre-action protocol letter and confirmed via a letter dated 13 October 2022 the Official Solicitor will act in the immigration tribunal provided that all of their standard criteria apply.

Representatives can therefore now approach the Official Solicitor to act on behalf of their client, provided that all 3 of their standard criteria apply. For further information about this, please read our legal briefing here.

Is this the end of the issue?

We have now worked in a few cases where the Official Solicitor acts as a litigation friend and it is clear to us that this is a new area of practice to which they still need to adapt. Representatives working with the Official Solicitor therefore should bear this in mind and provide guidance and explanations as to how the immigration tribunals work in practice and what would be needed from them.

At the moment, there is also still no clear practice directions in the immigration tribunals dealing specifically with the issue of litigation friend, including how to appoint one, which can often cause significant confusion. We have had cases, for example, where the tribunal has refused to adjourn a case despite clear evidence that the appellant lacks litigation capacity and that the hearing would not be able to proceed fairly without the appointment of litigation friend. Migrants Organise has produced guidance on this issue.

MigrantsOrganise are currently in correspondence with the IACs presidents’ chambers to ask them to adopt a clear practice direction on the use of litigation friend to assist practitioners. They ask that anyone who is encountering any issue with the process of getting litigation friend appointed to please contact me on brian@migrantsorganise.org.