Immigration detention

The impact of legal aid cuts and the Immigration Act 2014

Presentation by Colin Yeo

About me

• Editor of Free Movement blog (www.freemovement.org.uk)

• Barrister at Garden Court Chambers

• Specialise in immigration work

• Background in the charity advice sector

Legal aid key points• Funding for non asylum appeals

abolished, including deportation cases

• Funding for early stages of judicial review now 'at risk', meaning lawyers highly reluctant

• But judicial review funding is still available if permission granted

• Private funding of initial stages may be needed

• Conditional Fee Arrangements (CFAs) may be possible

Immigration Act key points

• Restricted rights and grounds of appeal

• Out of country deportation appeals

• Restrictions on repeat bail applications

• Simplified removal process

• Additional safeguards for families and children

Funding

• No legal aid for appeals outside asylum cases

• This means no legal aid for family and/or private life deportation cases

• New project at BID will offer some pro bono representation

Funding II• There is still legal aid for:

• tribunal bail applications

• judicial review including unlawful detention cases

• BUT legal aid payments are only made if permission for judicial review is granted

• ‘At risk’ funding for lawyers means many are now reluctant to take risk of working for free

Funding III• Detainees often lack the

resources (whether financial, emotional, intellectual) to help themselves

• Helping detainees to gather evidence through friends and family is critical

• Private funding for initial stages

• Conditional Fee Arrangements may be possible

Immigration Act 2014• Rights of appeal

• Reduced from 17 to 3

• No right of appeal unless refugee or human rights decision

• e.g. not on basis that immigration rules not satisfied or EC law would be breached

• Only remedy there is judicial review

Immigration Act 2014 II

• Out of country appeals

• Where case is certified as involving a person liable to deportation

• If SSHD considers no breach of Human Rights Act 1998 if person removed. Proposed test: “P would not, before the appeals process is exhausted, face a real risk of serious irreversible harm if removed to the country or territory to which P is proposed to be removed”

Immigration Act 2014 III• Means of challenge to out of

country certificates

• Out of country appeals hard to fight effectively

• Judicial review of certificate is possible - but subject to funding constraints earlier discussed

• Attempt to show there would be a breach of human right of deportee or their family if person removed

Immigration Act 2014 IV

• Immigration bail

• No bail w/o consent of SSHD if removal directions are within 14 days

• Bail must be refused if repeat application within 28 days unless “unless the person demonstrates to the Tribunal that there has been a material change in circumstances”

Immigration Act 2014 V

• Streamlined and simplified removal power for those without leave and their families

• Some safeguards for children and families, e.g. child detention

• Some positive citizenship improvements

Questions?