Immigration Bill

Lord Roberts of Llandudno Excerpts

Monday 7th April 2014 Lords Chamber

Moved by

[Lord Roberts of Llandudno]

62: Clause 72, page 56, line 41, at end insert—
“( ) Section 1 and Part II of this Act shall come into force on a day to be appointed, that day being no earlier than the day on which an order made by the Lord Chancellor under section 9(2)(a) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 in respect of civil legal services in connection with removal under section 1 and appeals under Part II comes into effect.
( ) The order must make provision for persons under 25 who entered the United Kingdom as a child.
( ) For the purposes of this Part, “child” means a person under 18.”

[Lord Roberts of Llandudno (LD)]

My Lords, in speaking to the amendment I will remind noble Lords how it concerns the removals and appeals provisions of the Bill and how they impact on people, including children and young people, who have no access to legal assistance.

Amendment 62 seeks to insert a sunrise provision in Clause 72. It provides that Clause 1 on removals and Part 2 on appeals cannot come into force until an order has been made dealing with legal aid for affected cases. This means that we will have to make sure that legal aid is extended and not reduced, and that it will make particular provision for people under 25 who entered the UK as minors. It is essential to see the removal provisions in Clause 1 and the appeals provisions in Part 2 in the context of diminishing access to legal assistance for those whom the Bill will affect.

The Government have stressed in relation to Clause 1, including in their fact sheet on the clause, that people subject to removal will be advised to seek legal advice as early as possible. This, however, will not be much use if people cannot obtain that advice because, first, they cannot afford to pay a lawyer; secondly, because immigration cases are not in the scope of legal aid under the Legal Aid, Sentencing and Punishment of Offenders Act 2012; and, thirdly, because they do not meet the Government’s proposed residence test for civil legal aid, if that test is introduced as planned in August of this year.

We are talking about people being forced to leave the UK and the division of family members, one from the other, without their having the benefit of a lawyer to advise them on their and their family’s rights, including the rights of any affected children. This is about young people who have grown up in the UK, including young care leavers, being deported to a country they do not know without an appeal right and without even having the chance to speak to a solicitor about their case.

The Coram Children’s Legal Centre has done a great deal of work on this and has demonstrated why legal aid should be available. It told me that it had worked on cases where a child has been brought into the UK as an infant and has later been taken into care. The child has indefinite leave to remain until it reaches the age of 18 when, at that age, the Home Office tells them that it intends to revoke their leave and to deport them to a country of which they have no memory.

What of children such as these? A child’s immigration case based, for example, on the child having lived for most of their life in the UK, will attract no legal aid even if the case goes all the way to the Supreme Court. A child with no lawful leave will be excluded from legal aid by the residence test, even if that child is only seven years of age. Proposals to restore legal aid for children’s welfare under Sections 17 and 20 of the Children Act made in the Government’s response to the Joint Committee on Human Rights are welcome but they fail to address a core problem. A young person can be deported before there has been any opportunity for judicial oversight of the Home Office’s decision. They do not get legal aid for their immigration case, nor will they get legal aid for any judicial review. The issues at stake in removal and deportation cases are of the utmost importance in the lives of children, young people and families. Legal aid should be available for such cases.

The Government have said that there is the option of applying for exceptional funding but, after speaking to the Minister for Justice, the right honourable Simon Hughes, I understand that very few of such applications are successful. I was shown the paperwork, the application form that a young person has to fill in for exceptional purpose funding. It consists of 14 pages. I have looked at the 14 pages and I have looked at the Bill. I am not a lawyer by any means, but if the application form is so confusing and difficult for us to understand, how can you expect a young person of 18 years of age, who has no legal training, to stand up and speak for themselves because there is no legal aid available and a lawyer cannot be provided. The Government must look after all young people who are in need of legal assistance. If they do not get it, then British justice affecting young people is breaking down.

There is to be a review of the Bill after between three and five years. I would like that to be sooner. I would like to see how it is proceeding and for it to be kept under constant review.

I would also like to see more generous exceptional case funding. The Government expected about 7,000 cases and instead they got about seven. There has been wrong judgment right from the start. How many cases were expected and how many arose? We need a review far sooner than three or five years.

The Bill and its amendments are so complicated that this 14-page application form should be looked at immediately and simplified so that a person facing extradition will be able to understand exactly what it means. If my three requests are granted—a review before three years, more generous exceptional case funds and a simplified form—it would be a tremendous step forward. I beg to move.

[Lord Taylor of Holbeach]

My Lords, Amendment 62 seeks to amend Clause 72, which provides for the commencement provisions in the Bill. It requires the Government to make an affirmative order under Section 9 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012—or LASPO, as we refer to it in the House—so that removals and all appeals are eligible for legal aid where someone is under 25 and entered the UK as a child. We debated this amendment in Committee when my noble friend Lord Attlee explained that this amendment would stall and potentially block changes to removals and appeals in the Bill.

The scope of the legal aid scheme was approved by Parliament and settled by LASPO. The Government have recently consulted on introducing a residence test for civil legal aid. Parliament will have the opportunity to consider these proposals shortly. However, we have no plans to extend the scope beyond the high-priority matters on which Parliament has agreed.

In Committee, the noble Baroness, Lady Lister, who is not in her place at the moment, referred to the JCHR report on the residence test. She noted that the committee concluded that the Government’s response to that report had not gone far enough. With respect, we do not agree with that comment. The Government considered the JCHR report carefully and in response modified the exceptions to the residence test, including for children. These changes ensure that the test is fair and that legal aid is targeted where it is justified while achieving the essential policy aim of targeting legal aid at those with a strong connection to the UK. We do not accept that the residence test would result in any contravention of our domestic and international legal obligations, including our obligations under the UN Convention on the Rights of the Child.

While this amendment is well intentioned, it is unnecessary. The vast majority of unaccompanied children are asylum seekers and will receive legal aid. Victims of trafficking also receive legal aid, and indeed we discussed their status earlier today. Children or young adults who are not unaccompanied will have the support of their family in the UK.

In Committee, my noble friend Lord Roberts raised concerns about the number of successful applications for exceptional funding. The fact that a lower-than- forecast number of successful applications has been made does not indicate that the system is defective. It is important to note that estimates made about volumes are precisely that—estimates. The fact that the volume of applications has been lower than forecast is clearly also relevant to the number of applications granted. Legal aid is and will remain available for the highest- priority cases such as asylum seekers and advice and damages claims for victims of trafficking. Children and those who entered the UK as children who fall into one of these groups are eligible for legal aid. It is right that these limited funds should be targeted towards them. Therefore, it is only those children and young adults who do not fall into one of the high-priority groups who will not be eligible for legal aid.

My noble friend asked why the exceptional funding mechanism is so bureaucratic. We do not accept that the system is overly bureaucratic. There is a bespoke application form to fill in which is designed to help providers present the relevant information. In addition, clients can ask for a provisional determination concerning their case directly from the Legal Aid Agency if they wish to do so. I appreciate the enthusiasm with which my noble friend has addressed these issues, but in the light of my points, I hope that he will feel able to withdraw his amendment.

--- Later in debate ---

[Lord Roberts of Llandudno]

I thank the Minister for his response. He is always cheery and helpful, but he has not given me the answer I was looking for. I just hope that the Minister, possibly with the Ministry of Justice, will look at this again. We have heard stories of young people reaching the age of 18 and then facing possible deportation. There may be a dawn raid, but I hope that the age of the dawn raid is over. There are stories of youngsters aged 18 bedwetting, which is very embarrassing. I heard of one lad who would push the wardrobe up against the bedroom door so that if anyone came in the early hours of the morning to arrest him, it would be that bit more difficult for them to do so. The worst story I heard was that of one lad who had fashioned a noose and hung it over his bed, so that if anyone came, he could take that way out.

Please can we keep this situation under constant review and possibly look at the more extreme cases—I admit that these are the more extreme ones—so that every child feels that he or she is not alone? They need to know that people are there who are ready to work with them. I hope very much that by talking to the Ministry of Justice and the Home Office, we can come up with some sort of solution. Sadly, once again I beg leave to withdraw the amendment.

Amendment 62 withdrawn.