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Legal Aid, Sentencing and Punishment of Offenders Act 2012

What will the effects of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 be for refugee and migrant children and young people?

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 was passed on 1st May 2012, but its provisions regarding legal aid will not be brought into force until April 2013. However, the impact of the changes are likely to be felt before April 2013 because of pressures that are to be placed on legal advisors, which may effect whether they continue to work on immigration, and possibly asylum cases, in the future.

After April 2013, asylum (refugee and Article 3) claims will remain in legal aid scope (although it is uncertain who will be doing this work) but the Act will remove most non-asylum immigration cases from legal aid scope (i.e. legal aid will no longer be available for these non-asylum immigration cases).  The key (but not all) changes to legal aid scope likely to affect children and young people are: 

  • Refugee family reunion applications will be out of legal aid scope.
  • Extensions of discretionary leave, on non-asylum grounds, such as claims and appeals brought on Article 8 grounds, will be out of scope.  Separated children, most of whom will bring an asylum claim, may find themselves ineligible for legal aid as being an asylum-seeker will not be a gateway to legal aid for all immigration problems. These may reliant on a local authority, who is responsible for them as a child in need, to secure private legal representation for them.
     
  • Children who have been abandoned in the UK (e.g. having come as a dependant of an adult who has long since left) and who need to regularise their stay, will – unless making an asylum claim – be ineligible for legal aid.  These too may turn to a local authority, who is responsible for them as a child in need.
     
  • Although legal aid is generally to be retained for challenging immigration detention, it is not to be available for any underlying immigration case.  This is most likely to affect families, or former separated children.  Thus, a family (or parent) detained and facing removal may be eligible for legal aid for a bail application, but not to pursue the Article 8 case which may establish an entitlement to remain in the UK. Those facing deportation, including those in prisons or youth offender institutions (whether serving a sentence or detained under immigration powers post-sentence), may have no legal aid advice or representation – unless making an asylum claim.
     
  • Victims of trafficking, including children and young people, will be eligible for legal aid in relation to immigration claims and appeals; but only if recognised as victims or potential victims via the National Referral Mechanism.  For some (perhaps many), an alternative route to legal aid may be the making of an asylum claim.
      
  •  Those whose immigration status is relevant to entitlements and proceedings in other areas (e.g. welfare benefits, housing, education and employment) may be especially disadvantaged in seeking to access services which may generally be available to support individuals and families with issues in these areas.  This is likely to arise because service-providers may not have the expertise to understand or be regulated to assist with the immigration matter, and without resolving this the non-immigration entitlement may remain inaccessible.

The Government has made clear  that a person’s age, mental or physical health or disability, language or learning difficulties, detention or imprisonment or other disadvantage shall not be relevant to whether legal aid is to be available for an otherwise ineligible immigration case.  The Act contains provision for funding in certain exceptional cases (section 10), where the case is generally out of legal aid scope.  However, immigration cases are to be excluded from this funding.

The Government has said that immigration cases are not complex and that legal advice is not needed.  Children, as in other areas, are to be expected to rely upon their parents to protect their legal interests.  As regards separated children, the Government has said it will discuss with the Office of the Immigration Services Commissioner (OISC) providing an exemption to social workers so that they can lawfully provide basic immigration assistance (such as form-filling) to these children. However, the non-asylum immigration claims and appeals brought by separated children and young people are generally brought outside the immigration rules and usually on the  basis of Article 8 of the European Convention on Human  Rights. These ‘are not ‘low-level’ or ‘routine matters’ and  the OISC does not permit those regulated only at level 1 to do such work. If a social worker were to operate beyond the level of their exemption they would commit a criminal offence. Furthermore, even at level 1, the OISC scheme requires supervision and continuing professional development in respect of immigration law and policy.  Social workers are simply not trained, or supervised adequately, to provide immigration advice.

There is going to be less legal aid work in the immigration and asylum area.  As indicated above, some legal advisers may simply cease to do this work; or cease to do legal aid work in this area.  As now, many children, young people and families will need assistance in finding a legal adviser.

Drafted June 2012 - summary provided by Steve Symonds, Immigration Law Practitioners Association 

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