Problems facing immigration detainees in accessing good quality legal advice – March 2011 Prepared by Gatwick Detainees Welfare Group (GDWG)
Introduction In giving evidence to the Joint Committee on Human Rights, Her Majesty’s Inspector of Prisons stated that:
‘As a general rule, it remains extremely difficult for detainees to find a competent and available legal representative…Less than half of the detainees we have surveyed have had a legal visit in detention.’ 1 In the 2010 HMIP’s report on Brook House IRC, where GDWG work, it was noted that:
‘The Detention Duty Advice Surgery was insufficient to meet the population’s needs. Accessing legal advice and representation outside the centre was difficult. There was little advice and information on bail applications.’2 These are all problems faced by anyone who is detained in an Immigration Removal Centre in the UK. Access to good quality legal advice is essential to anyone who is detained and subject to deportation or removal proceedings. Detention is an administrative tool which allows the state to deprive someone of their liberty, and as such there needs to be adequate and accessible safeguards in place to ensure it is used appropriately, and for the shortest time possible. However, our experience has shown that detainees face increasing difficulties in this area, particularly with the new system of exclusive contracts in IRCs, and the swingeing cuts to Legal Aid implemented by the coalition government.
Background With the collapse of Refugee and Migrant Justice in June 2010, formerly the largest legal aid provider of immigration advice in the country, along with the severe cuts in Legal Aid for immigration work, many detainees are facing a situation where they are simply unable to find a good legal aid lawyer to take on their case, or even access to advice about what options they have. This often leads to unnecessarily long periods in detention, plus the possibility that they will not be able to put forward their case in a full and reasonable manner, potentially leading to incorrect decisions from the courts.
The new system of exclusive contracts in IRCs, whereby a small number of firms are contracted to offer advice and representation to detainees to the exclusion of all others, has recently been introduced. It is already becoming apparent that some of the firms who run them are frequently unable to take on many new clients due to capacity issues, even where detainees may pass the merits test. There are also concerns that some firms are refusing to grant legal aid without giving full or proper reasons, nor the information required to appeal this decision, contrary to the rules laid down by the LSC. GDWG are currently working with other groups to collate data on this, although at the time of writing this is largely an anecdotal observation.
There is similarly a general lack of capacity for lawyers to take on High Court actions to challenge the lawfulness of detention, even for those detainees who have been held for several years, and where it is clear that removal is in no way imminent, or for especially vulnerable clients, such as those with serious mental health conditions or torture survivors, who should not be detained in the first place according to UKBA policy.
All of this paints a very gloomy picture, in which detainees are frequently unable to adequately challenge the system that holds them. When you factor in the language difficulties that many detainees face, not to mention the confusion almost all have around the system itself, we can safely conclude that many people are being deprived of, or at serious risk of being deprived of, their liberty, at government expense, for far longer periods than are necessary, or would otherwise be the case should they have received good quality legal advice and representation earlier in their period of detention. The latest UKBA figures show that just over a third of all those detained go on to be released back into UK society3, or approximately 10,000 people per year.
How can detainees challenge their detention? There are a number of ways for detainees to challenge their detention. They are able to apply for Temporary Admission (TA), direct to their UKBA caseworker. They are also able to apply for bail to either the Chief Immigration Officer responsible for their case, or to the First Tier of the Immigration and Asylum Tribunal (IAT). The IAT is by far the more common route for bail applications.
In order to do any of the above, detainees must be able to write, in English, outlining the reasons why the UKBA’s reasons for holding them are not valid or reasonable. This can be difficult to do, as detainees are often given little information upon detention for the reasons they are there, other than a simple tick-sheet. As detention continues, detainees should be served with a monthly progress report, giving in fuller detail the reasons why they are detained. However, the reality is that these often lack real detail pertaining to the individual’s case, and tend to change very little over time, even though removal is in many instances no nearer to being arranged.
If TA is turned down, as it usually is, IAT bail is typically the next step. This involves completing a bail application form, again in English, and also requires the detainee to have an address, and preferably sureties. A bail hearing will then be listed, usually on a video-link with the detainee remaining in the IRC, where the Home Office Presenting Officer will argue why detention is justified and should be maintained, and the detainee or their representative can argue in favour of release.
Detainees can also challenge their detention in the higher courts, usually by way of Judicial Review. This avenue is often used by those who have been detained for extremely long periods, or those who are either mentally unfit for detention or who are torture survivors.
What are the difficulties in accessing quality legal advice? While the vast majority of those held in detention are reliant on legal aid funding, successive cuts and restrictions in this area have meant that finding a good quality lawyer to take on cases has become much more difficult. Charities such as Bail for Immigration Detainees have tried to breach some of the gap in helping detainees apply for bail, but this is not and should not be an alternative to legal aid, and they are unable to work on clients’ substantive immigration cases. Many detainees are forced to represent themselves at bail and other immigration hearings, which severely reduces their chance of success compared to those who are represented.
Compounding this problem, it is becoming apparent that some detainees are wrongly refused legal aid by lawyers who incorrectly apply the merits test, especially those applying for bail. Many detainees are also not given information about how to appeal against this decision.
Since 2005, a scheme has been operating within all IRCs whereby certain firms are paid, via legal aid, to run a Detention Duty Advice (DDA) service, whereby detainees can access thirty minutes of free advice from the contracted firm. However, there are many problems with this system, firstly in that many detainees do not even know of its existence, as they are typically not informed about this in their own language, and there is little information about this within IRCs. Secondly, thirty minutes is a very short amount of time to make an assessment of a detainee’s case, especially where there may be a lack of paperwork and a language barrier. Thirdly, there is much concern over the new exclusive contracts system, whereby a limited number of firms are contracted to provide DDA advice, most notably over their capacity to take on the amount of new clients who request their assistance, and also over the quality of some of the advice and representation.
In evidence given to the recent public enquiry into legal aid, BID explained that:
‘Where detainees are taken on by DDA contractors, early evidence suggests that a bare minimum of work is being done by certain providers… The DDA scheme must be sufficiently well funded to allow for adequate provider capacity and for quality work to be carried out. This is not the case at present.’ BID and the Information Centre about Asylum and Refugees (ICAR) have just published their results of a survey of levels of legal representation for immigration detainees4 across the UK detention estate, and found the following, from a sample of 134 detainees:
49% of detainees interviewed did not have a legal representative at the time of the survey.
19% of those interviewed had never had a legal representative while in detention.
Of those who did have a rep, 68% were using a legal aid solicitor.
47% were unaware of the DDA scheme.
Only 8% of those interviewed had been taken on as a client via the DDA scheme.
23% had lost their legal representative on at least one occasion due to transfers between detention centres.
78% of ex-foreign national prisoners had not had any legal advice whilst in prison.
16% had been clients of Refugee and Migrant Justice when it was closed down in June 2010.