Immigration detainees are being deported because administrative hurdles are deterring legal aid solicitors from taking up viable judicial review cases, an independent report commissioned by the Bar Council suggests.
Even though immigration detention is in scope for legal aid, the Injustice in Immigration Detention report, published today, says the UK legal landscape is failing detainees.
Beginning a judicial review claim is a 'financial gamble' for a legal aid lawyer, the report states. The solicitor must apply for a legal aid certificate for civil representation, which has a 'stringent' merits test. Preparing the legal aid application, alongside the application for JR permission, can take a long time. If permission is not granted, the Legal Aid Agency does not pay for any of the pre-permission work.
The report says: 'This leads to a Catch-22 situation: lawyers are cautious about beginning work unless they are satisfied on the merits of the case, but often that is not possible without investigative work, at their own financial risk. It is possible under the legal aid scheme to apply for "investigative help" funding for this sort of work; but it often appears this is not sought, particularly in urgent removal cases.'
One barrister described preparing briefs for unlawful detention claims pro bono and trying to get a duty advice scheme solicitor to take the cases on.
The barrister recalled: 'Around five different times we built up a very credible profile with papers and a brief that I wrote with all paginated case papers prepared saying this is a strong case… the response would be that we don’t even have capacity to look at the documents I have prepared. And I would say I’m doing this pro bono… and they would say fine, that we may make contact with the individual. And then a week later I would hear that they had spoken to the individual, and they had been told to submit all sorts of documents proving their income…
'It is nonsensical to say there is legal aid for detention, because the hurdles you have to go through to actually have the lawyer go on record and represent you and make the claim are so tedious and cumbersome that it rarely ever happens.'
Detainees should be informed about a detention duty advice scheme when they arrive at a detention centre. Three-quarters of respondents to a survey conducted by charity Bail for Immigration Detention waited more than a week for a 30-minute appointment; four in 10 waited more than two weeks. Solicitors told the charity that 30 minutes is not long enough to establish the nature and strength of the detainee's case.