Immigration detainees don’t have a right to face-to-face legal advice, the Court of Appeal has held in R (on the application of SPM) v Secretary of State for the Home Department [2023] EWCA Civ 764.

SPM was held at Derwentside Immigration Removal Centre in early 2022. At the time, there were no nearby firms contracted to provide initial legally aided advice there under the Detention Duty Advice Scheme. SPM could only receive such advice by telephone or videoconferencing. She argued that her detention was unlawful because of a real risk that her common law right of access to justice would be breached if she couldn’t have an in-person legal visit.

SPM lost her case. Her fundamental problem was section 27 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. This says that legal aid services can be provided ‘by telephone or other electronic means’, and there’s no duty to make an individual’s chosen method available. Even without that, the Court said, access to justice didn’t require face-to-face legal advice, particularly where it was initially limited to a 30-minute triage:

I am not persuaded that the lack of an option, in practice, for face-to-face meetings as part of DDAS constituted an impediment to justice or created a real risk of such an impediment. At the most, it was a less than ideal way of carrying out initial legal visits for some of the women at Derwentside for some of the time.

Arrangements have changed at Derwentside; initial advice is now available face-to-face there. If and when the Illegal Migration Bill passes, however it will require a significant increase in detention capacity and, as a result, in legal visits. It remains to be seen whether the Home Office relies on SPM to justify remote-only advice on a much bigger scale.