The Scars That Tell The Truth – Are UK courts unfairly denying asylum seekers?

No removal without access to solicitor

Urgent Action Appeal

Please help Ashot to stay in the UK

39-year-old Ashot Aghababyan from Armenia is currently being held in detention and is due to be forcibly removed from the UK on Sunday 5th February Flight number BD 933 to Yerevan, 15:05 (Home Office Ref: A1435279)

We agree with its recommendations of better recording of medical conditions, an independent monitoring procedure, the need for urgent guidance to be issued to escort staff about restraint methods and research into appropriate restrain on aircraft, and the need to abolish the ‘reserve’ system during removals.

NCADC believes, however, that this report does not go far enough. We hear on a far too regular basis from individuals who have been verbally and physically abused in immigration detention and during attempted removals. This is simply unacceptable.

Our 2008 co-authored report, Outsourcing Abuse, highlighted this appalling and hidden aspect of our immigration system. Abuses have continued to occur, including the dangerous restraint of a Congolese asylum seeker and the tragic death ofJimmy Mubenga. Jimmy’s widow is still waiting for justice, and the investigation into his death – nearly a year and a half on – has still not been concluded.

Despite this body of evidence and constant criticism of the contracting of UKBA’s dirty work out to private companies, UKBA has failed to act on this gravely serious issue, and claims ‘not to have received any evidence’ that dangerous restraint techniques have been used. The report deals very well with the myriad reasons why an individual facing removal (or who has been removed) may not have confidence or feel safe using the complaints procedure. Time and again, the dangerous and offensive behaviour of staff acting on UKBA’s orders has been brought to their attention, and they have failed to act.

We hope that this measured and important report from the cross-party Home Affairs Select Committee will at last compel UKBA to take this issue seriously, as lives are at stake. People in need of protection or with the right to live in the UK are being failed by a dysfunctional asylum and immigration system, poor quality decision making by UKBA, often no or poor quality legal advice, and dangerous enforcement procedures.

With clear evidence of dangerous techniques being employed during enforcement operations, and with the investigation into the death of Jimmy Mubenga still ongoing, we call on the Home Office to cease forced removals.
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Hear NCADC interviewed on the BBC about these issues (programmes broadcast on 26 January 2012, available on iplayer for 7 days):
BBC Scotland (at 1:19)

…
Conclusions/Recommendations of Home Affairs Select Committee:
Rules governing enforced removals from the UK – Home Affairs Committee 
Contents
1.  Those who have no right to remain in the UK must leave the country and, if they refuse to do so voluntarily, they may have to be detained for a short time, if necessary escorted throughout the flight and, in extreme situations, may have to be restrained physically in order to prevent greater harm. However, whenever the state uses force to coerce a person, there need to be checks on that force. These checks take the form of carefully constructed procedures to limit harm, of adequate training and proper supervision of staff, and adequate means of complaint and redress if anything goes wrong. Where the state has contracted out responsibility for coercion, it retains ultimate responsibility for ensuring that all the checks are in place and working well. It is important that this is understood within the culture of both the Agency and that of its contractors, and not just acknowledged in formal documents. This is one of a number of areas of activity where there appears to be a reluctance by officials to accept constructive criticism, and as the UK Border Agency is not an independent body, but is in fact an integral part of the Home Office, this is a matter that we call on the Home Secretary to require the Permanent Secretary to address as part of the central management responsibilities of the Department. (Paragraph 11)

2.  We are not persuaded that head-down restraint positions are never used, even though they are not authorised. We recommend that the Home Office issue urgent guidance to all staff involved in enforced removals about the danger of seated restraint techniques in which the subject is bent forwards. We also recommend that the Home Office commission research into control and restraint techniques which are suitable for use on an aircraft. The use by contractors of unauthorised restraint techniques, sanctioning their use, or failing to challenge their use, should be grounds for dismissal. (Paragraph 18)

3.  The use of excessive numbers of escorts, to the extent that HM Chief Inspector of Prisons believes that escort numbers are in some cases detrimental to the removals process, is hard to justify against a background of reduced staffing levels across the public sector. It is a symptom of a weakness in the contracting process that the contractor is able to supply more staff than are required to do the job, with costs passed on to the Home Office. When the contract for enforced removals is next revised, it should specify precise ratios of escorts to detainees and the contractor should be able to depart from these only for clearly-defined, operational reasons. (Paragraph 21)

4.  We agree with HM Chief Inspector of Prisons, that the use of reserves on enforced removal flights should be discontinued. (Paragraph 23)

5.  It seems to us that the form concentrates mainly on any risk to those escorting the detainee rather than to the detainee him/herself. Moreover, the section on health is cramped, and it is not at all clear that it would necessarily be completed in a way to make it immediately comprehensible to a non-medical expert, like an escort officer: the lack of space would tend to force the experts to make terse notes rather than giving helpful detail. This is of special importance if the use of some—or any—restraint techniques might exacerbate an underlying medical condition, such as heart disease or asthma. (Paragraph 25)

6.  While we do not want to add to the paperwork which detention centres and escort officers have to deal with, we consider that there is a strong argument for providing a simple indication on the front page of the form flagging up the fact that the detainee has a medical condition which might lead to problems in the stressful conditions of enforced deportation. If a possible problem is flagged up, then the escort officers should be briefed on the practical consequences before the removal begins. (Paragraph 26)

7.  It is a matter for serious concern that contractors should use racist language among themselves. That they were content to do so in front of not only UK Border Agency staff but also inspectors from HM Inspectorate of Prisons is shocking. It is possibly the result of a relationship between the Agency and its contractors which had become too cosy. We recommend that the senior management of the UK Border Agency send a clear and strong message to staff who are involved in removals, that they have the full support of senior management in challenging the use of racist language by contractors, and that they are expected to do so. The contract should be amended to include a provision which requires the contractor to pay a financial penalty to the Home Office where there is a proven incident of the use of racist language by its staff. (Paragraph 32)

8.  We recommend that members of the Independent Monitoring Boards for immigration removal centres—or a similar independent monitoring network—be given access to chartered removal flights. However, the main issue is the need for better management and more confident behaviour by staff of the Agency and this is a matter that must be addressed by the Permanent Secretary in relation to removals as well as to the generality of the work of this Agency which is—as we have pointed out repeatedly—an integral part of the Home Office and not an independent or arm’s-length agency. (Paragraph 40)

In October 2011, the High Court found that the detention of Mounir Raki, a client of BID’s, for over four years was ‘self-evidently unreasonable’. BID referred Mounir to Leigh Day & Co Solicitors, who represented him in this case. The Judge found that there was medical evidence that Mounir’s mental health was deteriorating because of his detention and he was seriously self-harming. The case was covered in the Guardian.

Previously, in August 2011, the High Court found that a former client of BID’s, who suffers from severe mental illness, was detained unlawfully by the UK Border Agency for five months. The claimant had a history of serious ill treatment and abuse prior to arriving in the UK , which had been accepted by a number of medical experts. The court found that the claimant’s immigration detention amounted to inhuman or degrading treatment in breach of Article 3 of the European Convention on Human Rights (ECHR). This is believed to be the first time that a UK court has found detention at an immigration removal centre to  have breached Article 3 ECHR. Bhatt Murphy solicitors represented the claimant, and you can download a summary of the case from their website.

Also in August 2011, the High Court found that Amin Sino, another former client of BID’s, was detained unlawfully for more than 4 years and 11 months. Amin was held in immigration detention following a six month prison sentence for theft of an oyster card and a return to custody order. The court found that there was no realistic prospect of deporting Amin within a reasonable time for the entire period of his detention. Philip Howell QC, the judge in the case, found that ‘…the basis on which the Secretary of State had sought to justify the Claimant’s ongoing detention was based on factual assumptions which were not true.’ Bhatt Murphy were the solicitors representing Amin Sino in this case, and a summary of the case can be downloaded from their website.

Bail for Immigration Detainees prepares and presents bail applications on behalf of asylum seekers and immigrants who are detained.

Registered in England as a limited company No. 3803669
Registered Charity No. 1077187 | Exempted by the OISC Ref. No. N200100147

Web: www.biduk.org | Email: enquiries@biduk.org

Executive summary

0.2 Unaccompanied children are held under detention powers on, and immediately after, their arrival. Government policy is that unaccompanied children should only be detained in the most exceptional circumstances and only while arrangements for their care and safety are made. This policy is in line with the standard set by Article 37(b) of the United Nations Convention on the Rights of the Child (UNCRC) which requires that children should only be detained as a measure of last resort and for the shortest appropriate period of time.

0.3 The report finds that children are in fact not currently being held for the ‘shortest appropriate period of time’. Rather they are detained whilst significant interviews that will inevitably bear on their prospects of being granted permission to stay in the UK are conducted. From the cases we have considered in preparation of this report, we find that the local authority is only informed of the child’s arrival several hours after initial detention and well into the interviewing process. The report concludes that interviewing children in depth immediately on arrival is unnecessary and not in their best interests and should be reconsidered.

0.4 The evidence for this report was gathered by going to the Port of Dover immigration office and being ‘walked through’ the process an unaccompanied child would encounter on arrival. We were provided with written details of relevant procedures governing the relevant policies, and the working processes that should fulfil them. We then obtained consent from some newly arrived children to consider their ‘port files’ and were also able to interview some of the children in more detail. In two cases children provided us with their ‘reasons for refusal’ letter following the initial decision on their asylum claim. These showed how the interviews undergone shortly after arrival could impact on the asylum decision in the child’s case. We talked to representatives of the Kent Police Force, and the local authority, as part of our investigation. This report brings these different sources of information together to allow us to take a holistic view of the immigration procedures that unaccompanied children arriving in Dover encounter.

0.5 Chapter 3 considers the details of arrival recorded on individual port records, as well as what children told us at interview about how they had reached the UK from France or Belgium. Many young people’s first contact with the UK authorities is with the police rather than immigration officials. The report considers Kent police’s arrangements for holding them, and the arrangements made for transferring them into ‘immigration detention’. Children’s accounts of their first contact with the UK authorities are reported in their own words.

0.6 Chapter 4 considers what happens once children are transferred (by either customs officers or the police) to the port office at Dover, where they are handed over to immigration officials. Children are first searched and their property, including documents, removed. They are then ‘booked in’ and wait in a holding area pending interviews. The holding area and its facilities are described. Prior to interviews taking place, a Chief Immigration Officer (CIO) will conduct a preliminary age assessment. Any subject claiming to be a child, who in the view of the CIO is obviously not a child but an adult, will be treated as an adult from this point and will not benefit from the procedural safeguards provided to children.

0.7 Chapter 5 looks at the first two interviews children experience. The first is a short welfare interview to establish whether there are impediments to any further interviewing such as illness, tiredness or hunger. Evidence from both the port files and our interviews with children suggests that the welfare interview process provides immigration staff with considerable discretion to continue with further interviews. This happens even where children are claiming to be tired or ill or say they need to see a doctor immediately.

0.8 The welfare interview is followed immediately by the initial examination interview (IEI). The form used to record this suggests it is used to collect evidence where UKBA is considering prosecuting for the criminal offence of illegal entry. There are mitigating circumstances against prosecution including ‘being a child’ and ‘claiming asylum’. It was unclear from the files we examined whether children were asked if they wished to exercise their right to have a legal representative present at this interview, or whether they were asked and ‘waived’ this right. For those children who do not articulate an asylum claim at this point there has been provision, captured in a 1995 document named the `Gentleman’s Agreement’ to return them immediately to France. This is without recourse to social care services and in spite of these subjects being children supposedly afforded the full safeguard of the law. Following interventions in autumn 2011 by the Children’s Commissioner for England, and subsequent discussions between the Children’s Commissioner and the new Chief Executive of UKBA, the agency has agreed to cease forthwith using this provision in respect of children. It remains in place for adults.

0.9 Following the welfare interview and IEI, a full screening interview is conducted for those who have indicated that they wish to claim asylum. This screening interview is considered in detail in Chapter 6. The interview is designed to obtain details of the child’s identity, country of origin, family, history of travel to the UK, details of any previous claims, security related information and details of any accompanying adults. The interview lasts for around an hour. Children may only be asked about the basis for their claim where an independent Responsible Adult4 is present. It was not apparent whether this rule was complied with in all the cases we examined. However, in the majority of cases this key question was not asked at all, due to the absence of an independent adult.

0.10 Chapter 7 looks at the disadvantages faced by children under the current processing arrangements at Dover. The elements of this disadvantage are that:
• Children are generally not fit for interview due to illness, hunger, tiredness, fear or a combination of these factors.
• The length of time between being placed into detention and release into care is too long. This is due to both the numbers of interviews routinely undertaken and the waiting times between the interviews.
•  Telephone interpreting is generally used at the interviews and is not, in our view, ‘fit for purpose’.
• Children are in practice unable to instruct a legal representative or in most cases have an independent Responsible Adult present during interviews and yet the interviews can be relied upon by UKBA in the asylum decision.
• Even in the absence of a legal representative or independent adult, children are required to sign the screening interview record, confirm its contents are correct and confirm that they have understood legal warnings and instructions from the immigration officer.

0.11 The waiting periods prior to the screening interview are excessively lengthy given children’s physical and mental state as they arrive, unaccompanied, after undergoing whatever traumas their journeys to the UK may have entailed. Conditions in the holding area are not suited to excessive waiting for children, especially given their likely physical and mental states. First contact with the local authority is generally only made shortly before the start of the screening interview, meaning there is little opportunity for an independent Responsible Adult to attend in support of the children concerned. Children reported considerable difficulties in using the telephone interpreters provided, which in some cases resulted in misunderstandings occurring and incorrect information being recorded on the screening record. The records children were required to sign were not read back to them to check their accuracy.

0.12 Those children who were asked about their ‘fear of return’ in the absence of a responsible adult were not discouraged from elaborating on their reasons. Policy instructions to immigration staff on the issue of ‘elaborating’ on the reasons why return is feared are unclear and mean that children are allowed to expand on these without being prevented from doing so, and sometimes in the absence of an independent Responsible Adult as noted above.

0.13 In two cases we were able to consider the impact of the screening interview on the reasons then given for refusing the asylum claim. In both cases, conflicting evidence between what was recorded at screening and in the later substantive asylum interview was used to question the ‘credibility’ of the child’s account of what had happened.

0.14 In Chapter 8 we conclude that there is no strong imperative for children to be interviewed immediately on arrival beyond the taking of basic data to establish identity and to enable the correct and speedy placing of the child in the care of the local authority. Our investigation has led to one over-arching recommendation:

0.15 Interviewing, beyond the gathering of basic identity data, should be postponed until after a child has had a period of some days (or longer if deemed necessary by a childcare professional) to recover from their journey, and so that they have the opportunity to instruct a legal representative.

0.16 The aim of the recommendation is to ensure UKBA moves the child into local authority care as quickly as possible, both to allow recovery from their journey, and to ensure they can be made to understand the significance of the interviews they will take part in when they then return to the immigration office. The recommendation has implications for how the Local Immigration Team in Kent organises the processing arrangements for children, and also for the police and the local authority in how they deal with or receive these children. Acceptance of the recommendation will ensure that UKBA is compliant with its legal safeguarding duties, and with the standards set by the relevant international bodies – including the United Nations Committee on the Rights of the Child, the European Commission and Council of Europe – relating to the reception on arrival of unaccompanied and separated children.

0.17 In addition to the central recommendation which is directed towards the Local Immigration Team in Kent, we make a number of other recommendations applicable to the screening process in all locations. These are directed to UKBA’s children’s policy makers. The full additional recommendations are set out in Chapter 8. In summary they concern the following areas of practice:

0.18 Searching: We ask UKBA to consider whether searches should be video or tape recorded to ensure their accuracy and so that good practice can be verified and to give consideration to whether further searches of vulnerable unaccompanied children are wholly necessary when searches have already been conducted by the police.

0.19 Documents in the child’s possession: These should be copied and a copy returned at the earliest possible opportunity to the child or their legal representative.

0.20 Welfare interviews: Clear guidance and training should be provided to staff on when it is not appropriate to proceed with further interviews because a child is ill, hungry, tired, or clearly traumatised.

0.21 Initial Examination Interviews (IEI): The purpose of the IEI should be clarified with staff and any adults who might represent or support the child. Consideration should be given to whether they are necessary at all. Where the interview is undertaken children should be advised of their right to have a legal representative present.

0.22 The Gentleman’s Agreement: We acknowledge this will no longer be used in relation to children. However, many cases arise where an entrant’s age is disputed. Where an immediate return to France is proposed for such an age disputed young person the local authority should conduct an age assessment before removal directions are set by UKBA. All further removals under the Agreement should be monitored and reported on.

0.23 Telephone interpreting: This should not be used for interviews that will lead to any immigration decisions being made.

0.24 Screening: Chapter 6 of the process guidance should be rewritten to give effect to recommendations that: children should have legal advice before the screening interview and should be accompanied at the interview by a responsible adult; the record should only be signed in the presence of the responsible adult; the record should be read back to the child before they are required to sign it.

FULL REPORT here: Landing_in_Dover_-_FINAL_NON_EMBARGOED_REPORT

Adrian Matthews

January 2012

The Ay family, Kurdish refugees from Turkey, win six-figure payout from the Home Office eight years after childhood ordeal

Four children who were incarcerated in detention centres for 13 months – the longest time children have ever been locked up in the UK – have won a six-figure compensation payout from the Home Office more than eight years after their release.

The case of the Ay family, Kurdish asylum seekers from Turkey, hit the headlines because of the length of time they were detained and the ages of the children – the youngest, Medya, was just seven when the family were arrested and locked up in 2002, Dilovan was 11, Newroz was 12 and Beriwan was 13.

Celebrities including Colin Firth and JK Rowling offered their support to the family, along with Desmond Tutu, other church dignitaries and politicians. Their case became so infamous that Radio 4 broadcast a play about it in 2006, Broken English, written by Frank Deasy. The family have their own Wikipedia entry.

The civil action was settled out of court. The family’s lawyer claimed that they had been detained unlawfully and for too long. Child asylum seekers are no longer detained for long periods but controversy persists about new rules that allow them to be kept in a short-term holding facility for up to a week. The exact details of the payout are not allowed to be revealed for legal reasons.

David Blunkett, who was home secretary at the time, was determined that the family should be removed to Germany, the country where they had first claimed asylum. The family was fearful that on arrival on German soil they would be sent straight back to Turkey, where the children’s father, Salih, and mother, Yurdagul, had both been persecuted, so they tried various legal actions to resist forced removal from the UK.

Through the media the children documented the damaging effect that being locked up was having on them. “The government and the police in the UK broke our hearts,” said Beriwan.

The children showed signs of trauma while they were in detention and more than eight years after being released they are still living with the effects.

Most of their time in detention was spent in Dungavel immigration removal centre in South Lanarkshire, Scotland. There Newroz’s hair started to fall out, she developed a hand tremor and found it difficult to eat. Medya had recurrent nightmares, while Beriwan and Dilovan were said to harbour pent-up anger.

“We spent 13 months with my mum and the four children crammed into one room. Before we went to sleep each night the guards counted us, something we really hated. Now freedom for me means being able to sit in a room all by myself,” said Beriwan. “If human beings don’t have their own private space they can become very aggressive.

“A lot of our time in detention was spent just sitting around watching TV and not doing very much. I longed to be back at school with my friends in Gravesend, the place we were living in before we were arrested and detained.”

For Medya one of her abiding memories is of a yellow line painted on the ground in the outdoor play area. “If we stepped over that yellow line we got told off,” she said.

The children, all but one of them now adults, are still suffering the consequences of their time in detention.

“I still get scared if someone rings the doorbell,” said Newroz. “I think it’s someone coming to take us away again. And even after eight years I have difficulty sleeping.”

Beriwan said that many things triggered memories of their time in detention.”Both I and my sister Newroz started our periods in detention so we have a monthly reminder of our time there.”

One of the things the Ay family is most angry about is the way their time in detention stunted their ability to study. Beriwan had hoped to be a lawyer and Newroz a doctor, but they believe their hopes were thwarted by their time in detention. Beriwan and Dilovan now work for Deutsche Telecom, Newroz has been working as an assistant to a laser surgeon, while Medya is still at school.

“When we arrived in the UK in 1999 we learned English very quickly and excelled at school,” said Beriwan. “In detention we didn’t get much of an education and since leaving detention we’ve all found it much harder to study. The Home Office stole not only part of our childhood but also our future.

“We’re happy to have received this money,” she added. “It sends us a message that what the Home Office did to us was wrong. But I would much prefer to have no money and to have never gone through the ordeal of detention.”

When the children arrived in Germany they were allowed to remain there on the grounds that they were so psychologically damaged by their time in UK detention that they needed specialist medical treatment which would not be available to them in Turkey.

The writer Thomas Keneally supported the family while they were in detention and condemned their treatment there. At the time he said: “In a liberal democracy you can only maintain a policy of locking children up behind barbed wire by spreading lies and demonising the dispossessed of the earth. In the future, these children will tell their stories. There’s bound to be literature that comes out of it, and people will gasp and say, ‘How did that policy ever get through?’”

David Blunkett was unavailable for comment.

A UK Border Agency spokesman said on Friday: “In March 2011 we established a new family returns process that ended the detention of children. This ensures that families with no right to be in the UK are given every opportunity to leave without the need for further action and are offered assistance at every stage.”

http://www.guardian.co.uk/uk/2012/jan/06/child-asylum-seekers-win-compensation?newsfeed=true

by freemovement on 14 December 2011

As previously highlighted on this blog, fees are to be introduced for immigration appeals. The date has now been set for this to begin: for notices of decision dated 19 December 2011 or later.

Strangely, as far as I can see, you won’t find anything about this on the Immigration and Asylum Chamber website. One might have thought some forewarning for litigants and their lawyers might be useful there in order to avoid invalid appeals come commencement. There is a short item about it on the UKBA website, at least.

The headlines are that, for now, the moment fees will only apply in the First Tier Tribunal and that the fees are set at the following levels:

• £80 where there is no hearing
• £140 with a hearing

Fees are likely to rise over time and may be introduced in the Upper Tribunal at a later date.

A number of types of appeal and appellant are exempted from paying fees, including for deportation appeals, removal of illegal entrant or overstayer appeals, EEA appeals and appellants on asylum support. See the fees order paragraph 5 for the full list (link below).

The tribunal can award the cost of the appeal fee to a successful appellant against UKBA.

Also note that it will generally only be possible to lodge appeals with the tribunal itself for notices of decision dated 19 December 2011 or later. It will no longer be possible to lodge appeals with the entry clearance post abroad. It will still be possible for a detained person to lodge their appeal with their custodian, however.

For the more curious amongst you, the following links may be useful:

• First-tier Tribunal (Immigration and Asylum Chamber) Fees Order 2011: sets level of fees, exemptions, method of payment and so forth
• Tribunal Procedure (Amendment) (No.2) Rules 2011: amends the procedure rules including to strike out provisions where fees are not paid, for the tribunal to award the cost of the fee and to end lodging of appeals with ECOs

…
Court rules deported Sri Lankan family can return

Victory for expelled Sri Lankan family

Legal: detention centres legal surgery rotas

Immigrants in Britain may be detained indefinitely in removal detention centres. Some are held for months, others for years. Bridget Walker welcomes the government’s bail guidance for judges, but asks whether it will make any difference

On 13^th December, the rights of children were centre stage at a meeting of the All Party Parliamentary Group on Legal Aid in Westminster. Speakers including Baroness King and the Children’s Commissioner for England, Dr Atkinson, discussed how children and young people will be affected by Government plans to cut free legal advice and representation. This debate was perfectly timed as the bill setting out the cuts should enter the Lords committee stage on 20^th December. If it becomes law, children will lose out on a massive scale: 6,000 children under 18 would go without legal advice and representation, and 140,000 children would be affected because their parents could not get legal aid support. 2,500 children will lose direct legal assistance each year for immigration cases.

The Government wants to remove legal aid for most immigration work. It will stay for cases of asylum and torture, most asylum support, domestic violence and detention, but the Government thinks other issues are not important enough to justify funds. It also believes people who will be excluded can cope without legal advice, which makes me wonder if it has read any of the case studies filling its post box over the past year. How do I tell the refugee desperate to be reunited with her child that this lacks “fundamental importance”? Can the trafficking victim struggling with the after effects of abuse put her case for a residence permit? Does the family whose kids were UK born and bred know what evidence they need for a claim to succeed? All these applicants are up against the state, so there will be no equality of arms when their opponent can fund its own advice, write its own rules and jump any barrier like language or health. For children, the problems are magnified ten fold, although the bill is virtually silent on provisions specific to their needs. Enver Solomon from the Children’s Society said this at the meeting:

“It is difficult not to conclude that these reforms are driven by a simple desire to save money and do not take into account the best interests of children. It is particularly shocking that there has been no desire to differentiate between children and adults… It is difficult to see how the legal aid reforms are in any way UNCRC compliant.”

You can see the failure to think things through when it comes to detention. Keeping legal aid for challenges here is essential, but like the rest of the “sticking plaster” philosophy of the bill, lets lawyers step in only at crisis point for many people. If you have a claim to remain and challenge removal, then advice in good time to progress a case could avoid detention completely. Until the Government shows it is committed to ending child detention, we cannot ignore the need for children and their families to access advice before they lose their liberty, no matter what type of immigration issue their case may involve. Even a few days of detention can leave a long term mark on a child. If they are detained, it will be even harder to argue for release with no ongoing claim to hold up removal or give an incentive not to abscond.

But as the Government continues to slash and burn legal services, there is less chance you will find a lawyer to help you challenge detention, let alone one who is any good. End Child Detention Now (ECDN) reported how they had to phone 31 different advisers to get help for a family detained with a 2 year old child as far back as 2009. Nowadays legal aid advice for clients in detention can only be provided if you have a special contract, but the number of advisers with the right skills for this work will be radically reduced if the cuts come in. We have lost national providers like Refugee and Migrant Justice and the Immigration Advisory Service and seen the spread of “advice deserts” all over the country as providers struggle to survive under the current funding regime. Migrant Rights Network explained that evenLondon is feeling the squeeze:

“There is already a lack of good quality immigration solicitors for MRCOs [Migrant and Refugee Community Organisations] to refer their clients; a further reduction will make it harder for MRCOs to refer their clients for higher level advice”

If this bill goes ahead, things will get worse. It is estimated that up to 50% of law firms will fold and one third of law centres are likely to close, as they face cuts from local government and grant funding as well. This sort of void cannot be filled by charities such as the Refugee Council, which is struggling after a loss of £6 million in government funding. And pro bono help is not the answer. Not only do immigration advisers need accreditation, pro bono work can only scratch the surface of unmet legal need. This is certainly the view of the Civil Justice Council, which said:

“Pro bono legal services cannot begin to meet the scale of shortfall in provision that will be left by the proposed reductions and changes in legal aid. For all its development over the last decade, pro bono work exists only as an adjunct to legal aid and privately-paid legal services. It can never replace legal aid.”

Vulnerable people need quality help from beginning to end, not just a last minute fix. Research by Bail for Immigration Detainees (BiD) on children in detention found many were detained despite barriers to removal and errors by the Home Office in considering their cases. They recommended that families have access to good quality, publicly funded advice at an early stage, and these concerns were echoed by the Refugee Children’s Consortium, writing as the new family detention centre opened in Crawley in September. The Early Legal Advice Project for asylum cases lets applicants see lawyers at an early stage and is exactly the sort of service that all migrants should have access to. Supreme Court judge Lady Hale spoke of its significance for children:

“This is designed to improve the quality of the initial decision, because the legal representative can assist the “caseowner” in establishing all the facts of the claim before a decision is made. Thus cases including those involving children will be offered an appointment with a legal representative, who has had time to collect evidence before the interview. The Secretary of State tells us that the pilot is limited to asylum claims and does not apply to pure article 8 claims. However, the two will often go hand in hand. The point, however, is that it is one way of enabling the right questions to be asked and answered at the right time.”

In a world where we no longer care about what is right, the losers are obviously the clients, but it is also the state. There will be more work for Tribunals when they have to guide people who are self-represented, taking more money and time. This is on top of other social costs that come when problems are left unsolved, and lives slide out of control. Quakers have decided to object to unfair Government cuts, and the Meeting for Sufferings emphasised a wiser use of public money, so cuts would not be at the expense of the poor. If legal aid was retained for all under 18 year olds (across all areas of law), this would cost £10 million, and £40 million to protect advice for 18-24 year olds. As JustRights and Sound off for Justice have said:

 “These costs are dwarfed by the costs of not taking action: £10 million is equivalent to the cost of imprisoning just 71 young offenders.  £40 million is less than half the weekly cost of youth unemployment.”

In July, the Minister for Justice Lord McNally said, “As far as possible, our intention is that, where children are involved, legal aid will still be provided.” We must make sure the Government keeps its word. The Children’s Society has asked for an amendment so all children under 18 receive civil legal aid, while the Refugee Children’s Consortium asked that all children and vulnerable young people including victims of trafficking and exploitation can access legal aid in immigration claims. Peers have tabled amendments to protect child dependents, the Immigration Law Practitioners’ Association proposed an amendment on legal aid for refugee family reunion, and Just Rights want amendments to protect care leavers and young people with disabilities. Hopefully something will stick, as legal aid is a lifeline we need to support.

If you believe in access to justice, please join the campaign and take action now. For more information on what you can do, go to: Save Legal Aid, Justice For All and Sound Off for Justice.

Carita Thomas is a member of Young Legal Aid Lawyers.

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Peers have tabled amendments to protect child dependents. The Immigration Law Practitioners’ Association proposed an amendment on keeping legal aid for refugee family reunion and people liable to detention (among others),

See also:

The asylum seekers facing a Kafkaesque legal nightmare | UK news …  www.guardian.co.uk/uk/2011/aug/04/asylum-seekers  4 Aug 2011 – Government cuts to legal aid for asylum seekers have left many without expert advice or access to their own case files.