UK fails immigration detainees who need legal representation

People in immigration detention often have complex legal cases: immigration law is difficult and discriminatory; the UKBA often makes decisions that breach its own guidance; those decisions are often matters of life or death – refusing someone asylum who claims they will be tortured if sent back to his/her country of origin. DDVG’s Detention Support Manager, Victor Fiorini, explains why the current system of providing legal representation to people in immigration detention is failing them – and anyone who believes in fairness under the law.

Detained in the UK
Photo credit: thisisnthappiness.com

I’ve worked for Dover Detainee Visitor Group for the last four years so I’ve seen how we have managed to adapt to our clients’ changing needs. It’s satisfying to see how one small charity like ours has managed to keep up to date with what our clients go through.

But since October 2010 we’ve had to focus most of our energies on the issue of legal representation available to detainees. The date is not coincidental. Since October 2010, the Legal Services Commission has imposed (I cannot think of a more suitable word) a system which restricts the number of solicitors allowed to do legal aid immigration and detention work in particular Immigration Removal Centres.

The rationale behind this is unclear but it is probably a cost-cutting exercise. The benefits to detainees of this restriction are even more unclear, even though we suspect this was not a major factor that was taken into consideration.

In theory

On paper, the system should work. Every detention centre has a number of firms that run weekly legal surgeries in that IRC. Detainees can book one 30 minute time slot in order to see a legal caseworker from one of these firms. In that 30 minute meeting the detainee can get legal advice and, provided his/her case passes the merits test (that is, that s/he has 50% chance or more of success), then that solicitors firm is under an obligation to take on the case.

If the legal caseworker believes there are no merits to the detainee’s case, then they should give the detainee a form that explains the reasons why the solicitor has refused to take on the case – so that the detainee can contest this with an independent adjudicator.

Back to reality

But as someone who visits around 600 detainees every year, I can vouch that what is written on paper is miles away from what is actually happening.

Exclusive contracts have been detrimental to detainees and at times were the reason why a detainee could not get proper legal representation before it was too late. I am starting to dread asking detainees if they have a legal representative – in case they mention particular firms that seem to make life impossible. And I struggle to advise those without legal representation to ask an officer on their wing to put down their name for these legal surgeries, because I have serious doubts that the detainee will really get what s/he needs from these sessions.

So what exactly is not working with this system?

Let’s start with the fact that I’m not sure whether all the legal representatives running these surgeries are aware of why they are there and what their obligations are. Being awarded an exclusive contract should not only bring financial certainty to a firm, it should also bring responsibilities. One of them is that the firm needs to have enough capacity to take on all cases that pass the merits test. This is not just an ethical matter. It is written black on white in their contracts.

Some think they can get away with cherry-picking cases according to how many clients they can take on, and by telling other detainees that they have failed the merits test. It is becoming a rarity to hear that when detainees ‘fail’ this merits test, the rules have been followed and they have been given the reasons for the refusal – so that they can contest this decision.

Trying to go home

I recently worked with someone in immigration detention to get written evidence of his constant co-operation with his embassy. He wants to return home voluntarily. I knew that in order to apply for bail, a solicitor would need to be equipped with evidence that this person’s removal from the UK was not remotely imminent, and that therefore he should not be held indefinitely in immigration detention, while the UKBA tried to organise his flight out of the UK.

I was sure the detainee had a case for bail. But apparently the legal caseworker who saw him during this surgery said the client had no case. There were no substantial changes to his case since his last refused bail hearing, he said. A matter of difference in opinion? I doubt it, since even the Home Office have now acknowledged that this person’s removal is not imminent and have asked him for an address that they can release him to.

What would have happened to this detainee had he not got in touch with DDVG? He barely speaks English. He is not aware of the complications surrounding the immigration process. You would think a solicitor with experience dealing with the UKBA would look at all the angles of a case to see how to put an end to his prolonged detention. But when private solicitors firms are given exclusive contracts and have no competition, they get lazy. And this is what is happening right now.

No English, no lawyer

We have recently had an infuriating conversation with a legal caseworker who turned down a potential victim of trafficking for legal representation. He could not assess the client’s merits, he said, because the detainee could not speak English. If this law firm’s reasoning does not make you angry, I don’t know what would.

Legal Advice Project

DDVG has now started its own legal advice project. We were reluctant to divert resources into this, but we had no option.

One of the first clients we took on is a victim of torture who also self-harmed on a regular basis. His removal from the UK was next to impossible. After having spoken to the three firms awarded the exclusive contract at Dover IRC, he was turned down by all of them. Once again, he was not given reasons for the refusals. Which is where we came in. Our legal advisor not only secured his release from detention, this client now also has a fresh claim for asylum pending.

Think again

The list of problems goes on and on. But the biggest issue we have is not with these firms, but with the Legal Services Commission. When a government body is told repeatedly by frontline groups like ours that a system created by them is detrimental to those it is supposed to help, it might be time to listen.

We’ve had to take on a watchdog role with solicitors firms and even with the Legal Services Commission. It is not a role we wanted to undertake. It was something we felt we had to do. If the Legal Services Commission is unable to monitor its own system that many have criticised it might be time to re-think how legal advice and representation is made available to some of the most vulnerable people in the UK.

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