The ‘Residence Test’: it’s not just about migrants

Under the government’s plans to ‘transform’ legal aid, those who do not meet a ‘residence test’ will be unable to get help from a legal aid lawyer for non-criminal matters, unless they have an ongoing asylum claim or unless there are ‘exceptional circumstances’. This will of course affect many vulnerable migrants to the UK, including victims of traffickingchildren and those in immigration detention.

But the residence test has the potential to affect everyone who can’t afford to pay for a lawyer, not just migrants. If the proposals are implemented, all potential legal aid clients – including British citizens – will need to show evidence that they meet the residence test to any legal aid lawyer they wish to instruct. If you have proof you’re here legally – a valid British passport, for example – and evidence that you’ve spent at least a year here lawfully, all well and good. But what if you don’t have these things available, and need urgent help? How would you prove your eligibility then?

Victims of Domestic Violence

A British victim of domestic violence finally has the courage to leave an abusive partner, and flees to a refuge or to stay with a friend with just a few belongings, for example. The victim approaches a family lawyer the following morning, in need of an urgent application to the court to ensure the violent ex-partner stays away.

But, without a passport (or other proof the victim is lawfully in the UK) and documentary evidence of a year’s lawful residence, victims of domestic violence won’t be entitled to legal aid for this under the current proposals, no matter how severe the violence. How many victims are able to flee with evidence they meet the residence test ready to present to a legal aid lawyer when needed? How many victims – including British citizens and those legally here – will be forced to stay in violent relationships because of this? And what’s to prevent perpetrators of violence destroying or hiding such documents, knowing the victim won’t be able to access urgently needed help without them?

Care proceedings and abduction

The residence test also has massive implications for parents involved in care or adoption proceedings against a local authority. Parents and children who can’t prove they meet the residence test won’t be eligible for legal aid for this, meaning many will be unrepresented in court.

And imagine you return home to find your partner has left with your children and your passport, and is planning to leave the country with them. Under the current proposals there will be no legal aid for you to apply to prevent this in the family courts, until and unless you’re able to prove you meet the residence test. How would you prove this without official documents? How long would it take? And what would happen to your children in the meantime?

The proposals will also mean no legal aid for contact and residence disputes where there is domestic violence, unless you meet the residence test.

Representation of children

One final important impact of the residence test: in family and care proceedings, children will often have their own separate solicitors, instructed through a guardian to ensure that the court does what is best for them. The residence test would mean that many children without proof they meet it will not be entitled to a legal aid lawyer to represent their interests in court. How many children with ongoing care or adoption proceedings will be able to prove they meet the residence test?

Reducing the legal aid budget? 

The residence test will of course have a huge impact on migrants, but potentially affects all of us, and our friends and families too. It will prevent many British citizens’ ability to seek help from a lawyer when they most desperately need one. The government repeats the need to reduce the legal aid budget as justification for its proposals, but has so far been unable to say how much it thinks the residence test will save. Indeed, Dr Nick Armstrong of Matrix Chambers estimates that the residence test is likely to cost the government more money than it saves, because of the costs associated with determining whether a person meets the residence test or not, and additional likely expense of immigration detention, among other costs.

Act now!

Let’s stop these proposals! Contact your MP about this as soon as you can. This affects us all!

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