Immigration detainees held in prison will be eligible for 30 minutes of free legal advice under changes unveiled by the Legal Aid Agency yesterday. However, a solicitor who successfully challenged the government's legal aid arrangements earlier this year says the change does not go far enough.
Yesterday the LAA announced amendments that will allow 30 minutes of initial advice to be available to immigration detainees held in prisons without reference to means or merit. The work will be paid at hourly rates and travel time can be claimed.
Previously, anyone detained at an immigration removal centre could receive up to 30 minutes of legal advice regardless of means or merit under the government’s Detained Duty Advice Scheme. No such provision existed for immigration detainees held in prison.
Last August the government committed to reviewing provision to ensure equal access. However, the absence of equal provision was successfully challenged in the High Court six months later. The claimant was represented by national firm Duncan Lewis, whose team included solicitor Jeremy Bloom.
Commenting on yesterday’s announcement, Bloom said: ‘This is a really positive step in terms of addressing the discrimination to which immigration detainees in prisons are subjected in comparison with those in immigration removal centres, but a lot of questions remain unanswered.’
Bloom said the government had not gone far enough. ‘Despite a detailed evidence base of which the lord chancellor is well aware, he has limited the scheme to immigration detainees in prisons, when the reality is that people need legal advice from the moment that they find out that the Home Office intends to deport them. Failing to put a workable system in place that guarantees this will only increase late claims and overall costs on the system.'
He added: ‘Immigration detainees in immigration removal centres receive their initial advice through a surgery system at no cost where the legal aid provider has to take their case on if it has merits. The new system in prisons is far less favourable. Immigration detainees will have to persuade a lawyer to come and see them by paying to call them by phone.'
A government spokesperson said: ‘This change gives immigration detainees in prison parity with those in immigration removal centres. At the same time, we are helping cover phone charges for detainees in prisons to seek advice and are expanding legal aid provision for those facing removal from the UK through our Nationality and Borders Bill.’
Further guidance states that the Ministry of Justice continues to review access to advice for all immigration detainees. The latest change for immigration detainees in prisons is intended to provide a functional equivalent to the service currently available in immigration removal centres. HM Prison and Probation Service and the Home Office have introduced a £5 weekly payment for immigration detainees in prisons to help with phone charges and bring parity with detainees in immigration removal centres.
The MoJ has also pointed out that providers have to take the case on if it has merits and the wording of the LAA contract is identical to the scheme in immigration removal centres.
Law Society of England and Wales immigration committee chair Muhunthan Paramesvaran said there were a number of problems with the removal centre advice scheme and these would be exacerbated in the prison context.
‘For instance in a removal centre providers can see several clients in one session whereas in prisons it is likely to just be one client at a time, so the work may not be economically viable. Providers are also concerned that prisons are not properly equipped to be able to offer remote advice to detainees, as this requires a private space to ensure confidentiality between the client and their lawyer. Providers will not be compelled to provide prison advice and the concern is that very few will choose to do so,' Paramesvaran said.
The ministry said its review is looking at these issues and pointed out that legal advisers can access legal visits in prison either face-to-face where the regime allows or via a remote videolink.