On 5 July the Gazette reported on a speech by Lord Neuberger in which he stated that it is ‘hard to defend the current legal aid system’. He warned: ‘The sad truth is that in countries with a long, peaceful and democratic history such as the UK… we face the serious risk that the rule of law is first taken for granted, is next consequently ignored, and is then lost, and only then does everyone realise how absolutely fundamental it was to society.’

This was effectively how I concluded an article that I wrote in 2013 on the basis of 30 years’ experience acting in immigration and asylum cases under legal aid. I said then that without legal aid in immigration, fewer well-presented applications would be received; fewer well-argued appeals and judicial reviews would be taken; and few test case challenges would be brought by paying private clients or pro bono organisations. Without legal aid, precisely those applicants who need good lawyers to advance claims would find it harder to get competent advice. The quality of applications would decline and it would be even easier for the UK Border Agency  to make bad refusals.

I also predicted that the effects would be at least two-fold. First, a jurisdiction which has produced major legal developments in human rights culminating in cases such as Limbuela, and acted as a major check on UKBA incompetence and abuse of power, may go back to hearing 100 or so cases a year, few or none of which concern the rights of vulnerable individuals before such public authorities as the UKBA.

Second, despite the UKBA’s increasingly desperate and oppressive attempts to remove people, more and more migrants will remain in the UK in a precarious, twilit existence, their files stacked up in the various UKBA controlled archives. And because they are human beings like the rest of us, our sympathies will lie with them and general respect for the rule of law will decline.

Unfortunately, all that has come to pass. Ostensibly based on the shallow, ignorant MoJ assumption that non-asylum immigration problems invariably arose from the person’s choice to move to the UK, the LASPO withdrawal of legal aid from non-asylum immigration cases has resulted in:

  • A drop in available accredited and legally aided representation in immigration equivalent to around 250 legal aid caseworkers/solicitors nationally;
  • A drop in the number of asylum solicitors (since the number of asylum ‘matter starts’ in many areas is not sufficient to support a business);
  • The proliferation of new private solicitors’ firms acting in immigration matters which do not have to be accredited or registered with Office of the Immigration Services Commissioner (OISC), in relation to whom there are no (or no effective) quality measures beyond a complaint after the fact;
  • The proliferation of new OISC­registered organisations with little supervision or experience;
  • An increase in representation at immigration tribunals by people lacking the required level of accreditation; and
  • Cases on weak facts pursued to the higher courts to the detriment of reasoned, effective legal development.

Shame, then, on the Law Society for failing to include in its recent Access Denied report any recommendations (or indeed any comment) on the loss of legal aid in non-asylum immigration matters.

Sheona York, solicitor and reader in law, Kent Law Clinic, University of Kent