There are significant changes to immigration work, with most non-asylum work going out of scope altogether and restrictions on the use of judicial review.
What’s in the bill?
See part 2 of this series for how the bill works. The detail of what will remain in scope is set out in Part 1 of Schedule 1:
- Proceedings before the Special Immigration Appeals Commission
- Services in relation to immigration detention – advice and representation to detained clients about their detention, including bail applications, remains in scope, but advice about the substantive case does not unless it appears elsewhere in Part 1 – including in relation to release on temporary admission and bail and restrictions pending deportation or as an asylum seeker
- Asylum, article 3 ECHR and Temporary Protection Directive cases
- Accommodation (but not other support) for asylum seekers
- Judicial review. JR is available even where the underlying case is out of scope, but legal aid is not available in the following situations:
- where an issue has been the subject of a JR or appeal before a court or tribunal within the past year, funding will not be available for a JR of the same or a substantially similar issue (even where the previous case was not funded);
- JR of a removal direction where the direction was given not more than a year after the later a decision to remove, a refusal of leave to appeal that decision, or determination of an appeal of that decision.
- Cases otherwise excluded from scope may be funded as excluded services, subject to means and merits, if:
- it is necessary because failure to make services available would be a breach of Convention rights or EU law; or
- it is appropriate to make services available as failure to do so risks such a breach.
It should be noted that the test is not whether the substantive case is about a breach of a Convention right, it is whether failure to fund the case would be a breach.
What’s in the consultation response?
Annex A and B contain the government’s arguments for and against retaining areas in scope. Fundamentally, they believe that only fundamental issues of human rights – asylum and article 3 – need to remain in scope, that immigration tribunals are accessible, that immigration cases are generally fact-based rather than law-based and that “it is not generally the case that an appellant will need to argue points of law or have any knowledge of the law” (Annex B, para 86). This utopian vision of a simple system that immigrants can navigate with ease is unlikely to be one shared by many practitioners or appellants.
A particular issue that was raised in the consultation by many was the position of applicants for leave to remain on the basis of domestic violence. They pointed to the vulnerability of such clients, and to the presence of an equivalent exception in family cases. The government’s view is that this is simply a paper-based exercise that does not require specialist legal advice, and therefore legal aid is not necessary. There are many parts of the consultation response that seem either wilfully to misunderstand the nature of cases funded by legal aid, or disregard the consequences of its removal, but despite stiff competition this is one of the more glaring.*
Asylum and immigration cases, as with all other areas of civil legal aid staying in scope, will be subject to the eligibility changes. No date for their implementation has yet been announced.
What about fees?
All fees will be cut by 10% from 3rd October 2011. The fees schedule sets out the changes to individual fees, but the broad structure of the payment regimes remains unchanged. The revised fees start at page 53 of the schedule. Enhancements in certificated cases will be capped at 100% in the High Court and above, with the proviso that there will be no pro rata reduction below that – so a case that currently attracts 75% enhancement now will get 75% in future, but a case that currently gets 150% will in future get 100%.
Expert fees will be codified and reduced by 10%, with provision for exceptional cases, and there will be further work on moving to a system of fixed and graduated fees for experts in the longer term. The full table of expert rates can be found at page 72 of the fees schedule.
UPDATE 2oth July: The government have announced that they intend to bring domestic violence immigration cases back into scope.