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MoJ Proposals for legal aid cuts


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Consultation exercise

With New Year Celebrations follow the dreaded New Year Resolutions, well for most of us anyway… And so this year, it is my task today to remind and urge as many of you as possible to respond within the consultation to the Green Paper proposing drastic cuts in legal aid.  You may have vowed to stop smoking or to get fit but this year I hope that you can also join the debate and ensure that access to justice is maintained.

The Green Paper sets out the mechanisms by which the government would “deliver savings” of £350 million in 2014–15 from legal aid.  The budget currently stands at approximately £2.1bn.  Part of those “savings” are to be made by withdrawing legal aid from all non-asylum matters.  Thankfully asylum matters would remain ring-fenced (§4.38-4.42) but not asylum support (§4.221-4.223).  Challenges to immigration detention will also remain funded but only those matters relating directly to their detention and/or asylum claim.  This would therefore not include an immigration application that a detainee might wish to make whilst in detention…. (§4.82-4.85)  At present it is unclear whether claims based on Article 3 ECHR are classed as asylum matters and this is the one of the areas that ILPA has asked to be clarified in its initial response to the consultation.  And last but not least, funding would not be available to those challenging an immigration decision even when the action has been initiated by the Secretary of State, e.g. criminal deportations or revocation of leave cases. This is when it is currently and thankfully proposed (within another MoJ consultation) that such cases be exempt from appeal fees, if and when those are introduced, presumably in recognition that a person’s ability to challenge such a decision should be unrestricted!

It is frightening that immigration matters are at a real risk of being withdrawn from public funding arrangements particularly when the latest official statistics show that 48% of immigration cases succeed at appeals.  As highlighted on the blog earlier in December, there are of course massive costs to be saved if only UKBA had a real crack at improving first instance decision-making, its litigation conduct and paused for thought before introducing further Acts of Parliament and changes to the Immigration Rules (just to name a few!).  Further savings would also already have been made had the current legal aid franchises and tendering processes not be messed around for the last 6 years or so but it seems rather trite to point that out!

Instead, with regards to immigration matters (§4.198-4.204), the Green Paper says this:

“…we recognise that some of these cases may be of importance, in that they raise issues of family or private life, although individuals are not in any immediate risk as a consequence of the decision in their case. However, these cases do not raise issues of such fundamental importance as asylum applications, where the issue at stake may be, literally, a matter of life and death. In contrast to those cases, an individual involved in non-detention immigration cases will usually have made a free and personal choice to come to or remain in the United Kingdom, for example, where they wish to visit a family member in the United Kingdom, or to fulfil their desire to work or study here. We therefore consider that routine public funding is less likely to be justified.” (§4.201)

Further comments are made to the effect that the MoJ does not consider that the persons in these immigration cases will be incapable of navigating their way through the tribunal system as in general they are not particularly vulnerable and the matters do not generally involve complex legal issues!  The consultation is open until 12pm on 14.02.2011.  I hope that that these snippets are outrageous enough to get you typing out your responses but I will be back before the deadline with more fuel just in case.

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.


2 Responses

  1. “At present it is unclear whether claims based on Article 3 ECHR are classed as asylum matters and this is the one of the areas that ILPA has asked to be clarified in its initial response to the consultation.”

    How is this not clear? Any applicant making a claim for International Protection is defined as an asylum applicant and will have their case treated as such :para 327 (b) HC 395. the only possible exception woudl be an art. 3 claim on another basis, say medical grounds.