Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid for Separated Children) (Miscellaneous Amendments) Order 2019

Lord Keen of Elie Excerpts

Tuesday 1st October 2019 Lords Chamber

Moved by

[Lord Keen of Elie]

That the draft Order laid before the House on 22 July be approved.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

This draft instrument makes provision for separated migrant children to be eligible for legal aid for civil legal services for non-asylum immigration and citizenship matters. This is important legislation that ensures access to justice for these vulnerable children.

For noble Lords not familiar with its provision, legal aid for civil legal services is available to an individual if the service is in scope—in other words, if it is described in Part 1 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act. In addition, legal aid may be available on an exceptional basis where there would be a breach or risk of a breach of the individual’s rights under the European Convention on Human Rights or any enforceable EU rights. This is known as exceptional case funding or ECF. For in-scope matters and ECF, legal aid eligibility is subject to statutory means and merits assessments.

Under current arrangements, separated migrant children seeking to regularise their immigration or citizenship status in the United Kingdom can apply for exceptional case funding to receive legal aid for help with their citizenship application, immigration application form or subsequent appeal. Following litigation and engagement with key stakeholders including the Children’s Society, this draft instrument will bring these matters into the scope of legal aid. This means that separated migrant children will no longer have to make ECF applications to receive legal aid for citizenship and non-asylum immigration matters.

I turn to the scope of the amendment. Officials have been working closely with other government departments and children’s charities to finalise the terms of the amendment since 2018. The amendment makes provision for separated migrant children to be eligible for civil legal services in relation to their immigration applications for entry clearance, leave to enter and leave to remain in the United Kingdom under the Immigration Rules. The amendment also provides civil legal services in relation to separated migrant children’s immigration applications for leave to remain where that application is made and determined outside of the Immigration Rules. This would include applications for discretionary leave to remain and leave to remain on medical grounds, as well as exceptional circumstances or compassionate or compelling factors, which may warrant a grant of leave outside the immigration rules.

Further, legal aid will be available to these children in relation to relevant applications for entry clearance, leave to enter or leave to remain made under the Immigration Rules by another person, including family members and extended family members, and granted either under or outside the Immigration Rules. These applications are determined on the basis of exceptional circumstances under Article 8 of the convention, regarding the right to respect for private and family life, or on compassionate and compelling factors. This amendment includes legal aid applications for registration as a British subject or citizen, a British Overseas Territories citizen, and a British overseas citizen.

Some amendments relate to the procedures for applying for different forms of civil legal services. These are grouped into different categories: gate- way work, controlled work and licensed work. The changes ensure that, for controlled work and licensed work, separated migrant children who require legal representation in proceedings before a court or tribunal covered by this regulation will be able to receive it. There are also some technical amendments to other instruments regarding the merits and financial eligibility criteria. The changes ensure that the tests applied to immigration matters currently in scope of legal aid are also applied to this regulation.

This instrument takes a normative definition of a “child”, being any person under 18 years. Where the age is uncertain, the individual is treated by the director of legal aid casework and the legal aid provider making the legal aid determination as being under 18 years.

For the purposes of this regulation, a child is “separated” if they are not being cared for by a parent or someone with parental responsibility for them. It also accounts for children who are looked after by a local authority or are privately fostered, but for whom parental responsibility has not been determined. It also acknowledges that some separated children may be in other informal caring arrangements or, indeed, caring for themselves.

A Written Ministerial Statement was laid on 12 July 2018 outlining the Government’s intentions to lay this legislation. Following this Statement, the Legal Aid Agency advised legal aid providers of interim amendments to the exceptional case funding guidance for applications made by, or on behalf of, separated migrant children for citizenship and non-asylum immigration matters. The guidance outlined reduced evidence requirements when making an application and that ECF caseworkers will operate on the basis that there is a strong presumption that separated migrant children require legal aid.

To conclude, the draft regulation before us today makes important changes to the scope of legal aid to bring citizenship and non-asylum immigration matters into scope of legal aid for separated migrant children. This is important legislation that ensures access to justice for a highly vulnerable section of our society. I beg to move.

[The Earl of Listowel (CB)]

My Lords, I warmly welcome this regulation and the manner in which the Minister introduced it. As vice-chair of the All-Party Parliamentary Group for Children, I have sat in meetings with young people and children in the immigration system and in care, and have heard their concerns and uncertainties about the future. I very warmly welcome this regulation and the careful and sensitive way in which the Minister introduced it. The Children’s Society, as the Minister pointed out, has been a prime mover in this area over many years; indeed, a consortium of charities has been working towards this goal. I am sure we all feel that it is a momentous occasion to have this legislation after so many years for these children—this access to justice for them.

Many of these children will have spent most of their lives in this country. They may well know few or no people in the country they come from. So there may be good humanitarian reasons why they should continue to live in this country. The theme from these meetings is that the earlier one can begin the process towards leave to remain or citizenship, the better—but so very often, these decisions get left until the last minute, when the child has just about reached the age of 18, which is very unsatisfactory. This regulation will make it much easier to act early in the best interests of these children.

I want to ask the Minister about what will become of care leavers. When these children pass the age of 18, or sometimes prior to that age, they become care leavers. They still have some responsibilities due to them from their local authority, but not as strong. I understand that the Government have given some commitment that there will be an expectation that the default position will be that the exceptional case fund will be applied in these cases, but can the Minister confirm that in his response to the debate?

Last year I, along with the noble Lord, Lord Storey, met three care leavers. One of them had experienced some periods in a mental institution; as we know, many care leavers experience a great deal of loneliness when they leave care, and the challenge for him of the uncertainty over his immigration status had damaged his mental health. Another young man was working as a taxi driver, illegally and under the radar, which was a very unsatisfactory state of affairs. These young people, who have had such a difficult start in life, could have their rights better protected by us. This regulation does exactly that, so I warmly welcome it.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, I am obliged for the contributions from all sides of the House, to a greater or lesser extent. This is an important area and an important issue. I will begin by addressing generally some of the points that a number of different noble Lords raised.

First, the noble Earl, Lord Listowel, raised the very real question of those termed care leavers, who tend to be a cohort aged 18 to 25 years. It was a point raised by the Children’s Society when we discussed this matter more generally, as the noble Earl and the right reverend Prelate will be aware. The position we are in regarding that cohort is that we have agreed to consider the position of care leavers and their access to legal aid via the exceptional case funding scheme in relation to immigration matters. That work is ongoing, but I cannot say more than that at the present time.

In addition, there is the question of separated children who applied for legal aid but turned 18 before the original immigration application had been fully determined. They will continue to be eligible for legal aid until the immigration or citizenship matter has been concluded. How it is concluded is a different matter, but if it is concluded through the immigration process, legal aid will continue to be available. I seek to reassure noble Lords on that point.

Very diverse figures were given regarding the number of children who might have been or may now be eligible for legal aid under this provision. It is very difficult indeed to identify precise figures. That might explain why such a diversity of figures is being quoted. So far as we are concerned, the most reliable figures are from 2012-13 because after that, as a consequence of LASPO taking these cases outwith the scope of legal aid, there are not reliable figures. That is why it has been necessary to go back to the last set of reliable figures pre the LASPO provisions themselves. That might be unfortunate in a number of respects, but that is where we are. We intend to monitor the figures, but clearly we will have an eye on the number of applications being made.

In that regard—to respond to the noble Baroness, Lady Smith—we are and have been engaging since July last year with legal aid agencies over the scheme for provision. Indeed, pending this order coming into force, we have been explaining to legal aid agencies that separated children falling into this category who still rely on exceptional case funding would be entitled to certain presumptions so far as their application was concerned, because their rights under Article 8 of the convention are clearly to be regarded as in play, if I can put it in those terms. There has also been an assumption that they are vulnerable and that they are not capable of carrying through these proceedings without the assistance of legal aid. That has actually simplified the exceptional case funding application process. Indeed, we are working with legal practitioners to review and simplify the exceptional case funding application forms and guidance, which we hope again might be of assistance to the cohort known as the 18 to 25 year-old care leavers.

[Baroness Smith of Basildon]

Just to clarify: if I have understood correctly, is the Minister saying that all children who currently get exceptional case funding will now get legal aid to complete their cases?

[Lord Keen of Elie]

If they already have exceptional case funding then they have legal aid, so there should not be any interruption regarding that cohort, who have already received it. I was seeking to stress that since this matter arose in July 2018—I acknowledge that that was because the Children’s Society took steps with regard to judicial review—we have taken steps to try to simplify the ECF process for those separated children but as a result they have legal aid, so generically they have legal aid and that should not be interrupted.

Regarding the future position, ECF is not affected by our decision to leave the European Union. Of course, convention rights are already expressly covered by LASPO. There is also the question of retained EU rights under our domestic legislation. Therefore, there is no reason why the ECF scheme should be affected by that.

As regards the wider number of children who may have been affected by this, it is not possible to give figures. The noble Baroness, Lady Smith, referred to 144,000 undocumented children potentially being in the United Kingdom. The point to stress is that if they are undocumented, it is very difficult to determine how reliable that estimate is, where they are, what they are doing, where they have gone or where they have been. By the very definition of undocumented, we have an issue here which is surrounded by a penumbra of doubt and uncertainty and very little can be done with that.

However, I hope that with these regulations coming into force we will have a more meaningful ability to deal with these vulnerable children, to provide them with the support that we acknowledge they will require in future and which they have had in the past under the exceptional case funding, but which we believe should now more appropriately be brought within the scope of Section 9 of LASPO. I beg to move.

Motion agreed.