Liberty s Response to the Lord Chancellor s Department Consultation Paper: Proposed Changes to Publicly Funded Immigration and Asylum Work

Transcription

1 Liberty s Response to the Lord Chancellor s Department Consultation Paper: Proposed Changes to Publicly Funded Immigration and Asylum Work August 2003

2 Liberty (The National Council for Civil Liberties) is one of the UK s leading civil liberties and human rights organisations. Liberty works to promote human rights and protect civil liberties through a combination of test case litigation, lobbying, campaigning and research.

3 Introduction 1. In its Consultation Paper Proposed Changes to Publicly Funded Immigration and Asylum Work the Lord Chancellor s Department is proposing fundamental changes to the structure of public funding for immigration and asylum work. Liberty believes that these proposals raise a number of civil liberty and human right issues. 2. While Liberty have been involved in many high profile immigration and asylum related cases 1, we are not a firm of immigration practitioners. Our response to the LCD Consultation Paper will focus on the wider civil liberty implications of the proposals, rather than on the specifics of their impact on the practice of immigration solicitors. We have also chosen not to respond to the Consultation by answering the specific questions listed therein as this would not appropriately address our main concerns. 3. Despite Liberty not being a firm of immigration solicitors, we do share the LCD s concern over the minority of poor quality immigration and asylum solicitors currently practising under public funding. However, as legal practitioners in the fields of public law and human rights we strongly believe that maximum time limits are not an effective way to address issues of poor quality advice 2 or to continue to develop quality representation in the area of asylum and immigration 3. Neither do Liberty believe that, in anything other than the most short term of views, this will be an effective way of saving public funds by delivering effective and sustainable services within an agreed budget 4 or of ensuring that services are delivered at the best possible price and can most importantly be seen to add value by advancing the interests of 1 Liberty intervened in the cases of Chahal v United Kingdom (1997) 23 EHRR 413, R (on the application of Saadi & others) v Secretary of State for the Home Department [2002] All ER (D) 461 (Oct), and R (on the application of Q and others) v Secretary of State for the Home Department [2003] 2 All ER LCD Consultation Paper, paragraph 13 3 LCD Consultation Paper, paragraph 14 4 LCD Consultation Paper, paragraph 1

4 the client 5. However, we do support the LCD s proposal to introduce a system of accreditation to help ensure that all immigration and asylum practitioners meet the standards expected of them and deserved by their clients. 4. For consideration of the direct impact these proposals will have on the work of an immigration and asylum practitioner we would refer you to the response of the Immigration Law Practitioners Association to this Consultation Paper. We have read and support this response. The core message we have taken from it is that it will be impossible for an immigration solicitor of any quality to work within the proposed limitations. 5. Liberty s response to the Consultation concentrates on the impact the proposals will have on asylum applicants. Those arriving in the United Kingdom seeking asylum will almost always need sensitive and considered legal advice, and also those least able to pay for it themselves. Asylum seekers can invariably expect their application to be subject to detailed scrutiny. 6. Liberty s response to the Consultation Paper considers the following three areas: A. The right to a fair hearing as a fundamental human right; B. The discrimination inherent in the LCD proposals; C. Practical faults with the proposals. A Fair Hearing Rights 7. The principles of the rule of law and due process have shaped and been at the heart of the English legal system for hundreds of years. Over time, these broad principles have developed and evolved into more concrete legal rights. 5 LCD Consultation Paper, paragraph 7

5 The courts defence of their role as the appropriate arbiters of legal disputes led to the common law right of access to court 6. The common law concept of natural justice has emerged over the past 200 years. While this concept now has a wide scope, at its simplest it consists of two basic rules; first that no man is to be a judge in his own cause (nemo judex in causa sua), and second that no man is to be condemned unheard (audi alteram partem). In the latter half of the twentieth century, following the House of Lords decision in Ridge v Baldwin [1964] AC 40, the principles of natural justice have been held to apply to any decision affecting a person s rights or interests The United Kingdom has also been a signatory to the European Convention on Human Rights ( the Convention ) since Article 6 of the Convention contains the right to a fair trial, and since the coming into force of the Human Rights Act 1998 that right has been directly incorporated into English law. Legal Representation 9. As Laws J restated in R v Lord Chancellor, ex p Witham [1998] QB 575: the right to a fair trial of necessity imports the right of access to the court Just as the right to a fair trial necessarily includes the right of access to the courts, so does this right of access necessarily include a right of access to legal advice and representation. The case of R v Secretary of State for the Home Department, ex p Leech (No 2) [1994] QB 198 concerned a challenge to rules made under the Prison Act 1952 which impeded the free flow of correspondence between solicitor and prisoner client. In his judgment in favour of the challenge, Steyn LJ referred to how the rules offended the principle of our law that every citizen has a right of unimpeded access to a court Even in our unwritten constitution it must rank as a constitutional right. 6 This right springs from the common law presumption of legislative intent that access to court is not to be denied without clear words in primary legislation see De Smith, Woolf & Jowell Judicial Review of Administrative Action for a list of supportive case law 7 For a brief consideration of the origins of fair trial rights in English law, see Clayton & Tomlinson s The Law of Human Rights (OUP) Chapter 11

6 10. In the above mentioned case of ex p Witham, it was accepted that court fees that were beyond an individual s financial means could breach his right of access to the court. Furthermore, the European Court of Human Rights ( ECtHR ) has acknowledged that a denial of access to legal aid can constitute a violation of the right to a fair trial in Article 6 of the Convention It is clear to Liberty that by limiting the hours that a legal aid solicitor can spend working on the case of a client without private funds the LCD is proposing an explicit restriction on that client s access to legal advice and representation; and therefore on his or her right to a fair trial. 12. In addition, it is important to note the real possibility that, should the Consultation proposals come into force, many immigration practitioners will no longer be able to continue their practice. In light of the current difficulty in finding a quality immigration solicitor to represent an asylum seeker, even a small number of the current providers being forced to discontinue their practice will create a shortage of immigration lawyers. Quite apart from five hours being entirely inadequate, there is a real possibility that for many asylum seekers there will simply be no legal representation available at all. 13. The proposals contained in the LCD Consultation Paper represent a serious threat to the fundamental right to legal representation in the context of immigration and asylum 9. The impact of this threat on all asylum seekers is cause for massive concern, but even amongst this most vulnerable of groups, particular attention must be drawn to the many hundreds of asylum applicants, entirely innocent of any crime, being held in detention in the UK. They are at the mercy of the State to an even greater extent than those with nothing but their liberty, and yet it is proposed that they should be denied the possibility of access to effective legal representation. 8 For example; Airey v Ireland (1979) 2 EHRR 305, Munro v United Kingdom (1987) 52 DR 158 and Aerts v Belgium [1998] EHRLR While common law fair trial rights apply to immigration decisions, it has been held that Article 6 of the Convention does not. However, in the starred Immigration Appeal Tribunal ( IAT ) case of MNM - v- Secretary of State for the Home Department, 00/TH/02423 (12 October 2000) Mr Justice Collins stated at paragraph 16 of the determination that Article 6 of the Convention being inapplicable to immigration decisions makes little if any difference as the IAT apply the same tests as would be applicable if Article 6(1) applied. While only the IAT is referred to here, a right to access legal advice logically must arise prior to an asylum seeker s application reaching the IAT or even the IAA.

7 14. Liberty acknowledge that the Consultation Paper provides for exceptions to the five hour limit, and that it proposes allowing additional time and costs to cover applications for bail and advice in connection with a client s detention. However, when bearing in mind the fact of their detention, the overall attitude of the Government, and this LCD Consultation in particular, Liberty are extremely (and understandably) reluctant to accept these words as an assurance that the right to legal representation of those detained without justification will be adequately protected. Equality of Arms 15. As touched upon in paragraph 6 above, the principle of natural justice has developed so that the right to a fair hearing under common law now comprises several separate elements. One essential component of the right to a fair hearing is the principle of equality of arms that neither side to an adversarial hearing should have an unfair advantage over the other. 16. This right has been explicitly recognised in the jurisprudence of the ECtHR as an element of the Article 6 rights accorded to parties in both criminal and civil proceedings. Each side must have a reasonable opportunity of presenting his case to the court under conditions which do not place him at a substantial disadvantage vis-a-vis his opponent Once the proposed 5 hour limit for those claiming asylum has been reached the asylum seeker will be left to fend for him or herself against a system bent on massively reducing the numbers of successful asylum applications. Liberty cannot accept that an asylum seeker denied legal advice or representation is not disadvantaged when compared to his or her opponent in the asylum system - the Government of the United Kingdom with all its expertise, resources and personnel. 18. It is important to remember that the asylum applicant may well be the victim of serious violence, torture or rape, in many cases implicitly or even explicitly sanctioned by the state from which they have fled. Such asylum seekers will 10 De Haes and Gijsels v Belgium (1997) 25 EHRR 1, para 53

8 undoubtedly be frightened and mistrustful of others, particularly by figures of authority. They may also be unable to speak any English. 19. The above attributes will no doubt make it impossible for a solicitor to effectively assist that asylum seeker in the five hours available to him or her. Their tale may well be complex and confused, and a good solicitor will need time to establish the facts and merits of their case. But once the 5 hours is up, that individual will be left without legal assistance left to carry on a hopelessly unfair fight. 20. While the Government s official position is that the decision of the Home Office in immigration and asylum cases is a straightforward administrative decision, the reality is very different. Every individual who is unable to afford private legal representation faces a battle to convince the Home Office that he or she should be entitled to stay in the UK. The sate has no such difficulty in resourcing its litigation. Culture of Human Rights 21. When promoting the Human Rights Bill in the House of Lords in 1998, the Lord Chancellor spoke of how the passing of the Bill would develop over the years a strong culture of human rights in our country 11. The phrase culture of human rights has been used repeatedly by the Labour Government over the past 5 years as an ideal to which our nation must strive. Liberty have often expressed concern at the Government s lack of genuine commitment to back up this rhetoric, no more so than in the field of asylum and immigration. 22. The Government must stand by its commitment to establishing a culture of human rights by providing an example of respect for and protection of the human rights of the public. The proposed changes to the legal aid system contained in the Consultation Paper can be seen at best as a systematic failure to protect the human rights of those seeking to reside in the United Kingdom, and at worst as a deliberate attack on those human rights. 11 Lords Hansard, 5 February 1998 Column 839

9 B Inherent Discrimination 23. It is clear to Liberty that under the LCD proposals the right to quality legal representation and a fair hearing within the immigration process will be reserved for the rich, while those genuine asylum seekers without private funds will never have the opportunity to have their case fairly heard. 24. Furthermore, of those seeking asylum these proposals will affect disproportionately the weakest and the most vulnerable. In particular, victims of rape and torture will almost inevitably be more frightened and less communicative. Such clients will represent a greater challenge to a solicitor and must be dealt with far more sensitively than a five hour time limit can possibly allow. In addition, those suffering from mental illness may well be the most deserving of compassion from the UK, but the least able to express their need. C Practical Implications 25. In addition to the principled arguments against the proposals in the Consultation Paper, there are several practical problems that they will create or exacerbate. These problems will undoubtedly prevent the achievement of the proposals claimed twin aims of (a) improving the quality of the work undertaken by immigration suppliers and (b) reducing the immigration and asylum legal aid budget. As has been stated above, it is Liberty s view that a concerted effort to ensure the quality of immigration practitioners is the most effective and cost efficient way to achieve aims (a) and (b) above. We believe that the Consultation Paper proposal to introduce an accreditation scheme is a sensible way to improve quality and should be the focus of any changes to the public funding of immigration and asylum work. With an effective accreditation scheme and regular audits of work taking place the process should be far more effective as only work that is justified will be undertaken.

10 Any practitioner who does not work effectively and efficiently will face losing their accreditation. Charter for Poor Quality Advisers 26. As has been made clear in the response of ILPA to these proposals 12, the time limitations of five hours up to the first decision, four hours for an appeal to an adjudicator and 150 for an appeal to the IAT are entirely inadequate for effective representation of a client. Quality practitioners will not be able to continue to practice without lowering their standards. The only immigration solicitors who will be able to continue are the very poor quality advisers of which the Consultation Paper complains, as they are the ones who will be willing to send an asylum seeker on his or her way after totally inadequate advice. Fewer Claims Dealt with Efficiently, Effectively and Fairly at First Instance 27. An inability to adequately advise and represent prior to the first immigration decision will mean that the decision maker will be left to draw out the facts of the applicant s case during the interview process. This will make the interview a far lengthier and more complicated process with greater scope for error on the part of the decision maker. This in turn opens up the possibility of genuine asylum cases being rejected, or of arbitrary detention of asylum seekers of whom there is no threat of absconding. 28. Such a situation will also, inevitably, lead to more decisions being challenged on the ground that the first interview did not reveal all of the necessary information or properly deal with the key issues. The poor quality advisers who would remain should the proposals be effected could gain from their failure to effectively advise at first instance by appealing the decision and obtaining another four hours worth of legal aid. 29. The likelihood of a greater number of decisions based on inadequate information also opens up the possibility of a greater number of judicial

11 reviews of immigration and asylum decisions. The Consultation Paper proposals do not cover public funding for judicial review of immigration and asylum decisions, and there is a strong possibility that any savings to the legal aid fund that may be made by cuts to immigration and asylum work will be outweighed by increased spending on far more costly judicial review actions. Increased Chances of Home Office Error 30. While it may not be happy to admit it, the Home Office must acknowledge that not all of its staff are infallible. In fact, Liberty notes that the incompetence of immigration officials has been commented on at some length in proceedings before the Immigration Appeal Tribunal 13. An unrepresented or poorly represented individual, especially one who is new to this country and its immigration and asylum system, is in no place to monitor the work of the immigration official dealing with his or her case. In this situation, the legal adviser plays an important role in guarding against the possibility of error or incompetence on the part of the official. The avoidance of errors early in the process can avoid the need for costly and time-consuming legal challenges at a later point. Increased Chances of Asylum Seekers Absconding 31. Should an asylum seeker be unable to obtain effective legal advice, he or she is far more likely to decide that the best way not to lose at the hands of the system is to avoid it completely. The Consultation Paper proposals would drive greater numbers of asylum seekers underground, exacerbating the asylum problem that the Government is so desperate to solve. No Possibility of Voluntary Sector Rescue 32. Liberty notes that in many of its legal confrontations with asylum seekers, the Government has suggested that the voluntary sector will be able to provide 12 Immigration Law Practitioners Association response to the LCD Consultation Paper

12 what it refuses to 14. Similarly here, there seems to be some suggestion in the Consultation Paper that charities and the voluntary sector will be able to offer support in place of that currently provided by immigration practitioners. It is without a doubt utterly inappropriate for the Government to turn to the voluntary sector to solve the problems it deliberately causes, but quite apart from this principled objection it would also be practically impossible (and possibly negligent) for the voluntary sector to provide effective legal advice to immigrants and asylum seekers. This statement will no doubt be supported by other voluntary organisations, and must be considered in light of possible simultaneous cuts in the public funding of NGO advisory services. Conclusion 33. Liberty is firmly opposed to the introduction of any cap being placed on the number of hours that an immigration solicitor working under legal aid can spend on a client s case. 34. Liberty supports the introduction of an accreditation system as a method of ensuring quality advice and representation in immigration and asylum work. 35. Liberty s opposition to the time limitations proposed is based on three separate arguments. a) The proposed limitations will violate the asylum seeker or immigrant s right to a fair trial, both in terms of access to legal representation and in terms of equality of arms. b) The proposed limitations will have a disproportionate impact on certain groups and are therefore discriminatory. 13 See the comments of the President of the IAT in Tatar, 00/TH/01914 (e.g. We suffer this sort of incompetence from the Home Office again and again ) and those of the IAT in Mefaja, [2002] UKIAT 1188 and Razi, 01/TH/ See, for example, the suggestion in the case of R (on the application of Q and others) v Secretary of State for the Home Department [2003] 2 All ER 905 that charitable support would be available to prevent those refused NASS support being without food or shelter on the nation s streets.

13 c) The proposed limitations will not achieve the LCD s stated aims of reducing costs and increasing quality. In fact it is likely that costs will increase and certain that quality will be reduced. 27 August 2003 ALEX GASK LIBERTY 21 Tabard Street London SE1 4LA