McNally and the residence test – is it ideological?

We raised some of our concerns about the residence test with Lord McNally at our meeting Tuesday. Lord McNally was generous with his time and appeared genuinely interested in our discussions. Here’s what we told him, and his response:

The residence test: A ‘commonsense’ test?

Our two clients both gave really powerful examples at the meeting of the impact the residence test would have on refugees, and in particular on those seeking to make a ‘fresh’ asylum claim, detainees, and those needing legal aid in the first year following a grant of permission to stay in the UK (see our blogpost of 23 July 2013 on this below).

It’s unjust…

We told Lord McNally that, while we understand that the proposals intend to prevent those who don’t have a strong connection to the UK from accessing legal aid, our concern is that the residence test is also likely to exclude many British people and those born here or who have lived here since childhood. We gave him a few examples to think about: a British citizen unlawfully evicted by the local authority, losing all  belongings in the process; a British citizen escaping domestic violence to a refuge with none of her ID documents, seeking a non-molestation order to keep a violent ex-partner away from her; a child born in the UK to foreign national parents has been refused accommodation and support as a care leaver. We explained that such people would be unable to meet the residence test, or unable to prove that they do, even if they are in urgent need of legal assistance.

We reminded Lord McNally of other examples of vulnerable individuals who wouldn’t qualify for legal aid under the proposals, including many children and parents in care proceedings; victims of trafficking; and destitute children whose families are in need of accommodation and support.

…and unworkable.

We explained to Lord McNally why the residence test is also largely unworkable. We know from our own practice that immigration law is extremely complex and frequently changing. It’s possible for someone to have a residence permit in their passport but to actually not be here lawfully – such as the spouse of a European national, where the European national has returned home, for example. Equally, it’s possible not to have a valid residence permit or visa but to still be here lawfully – because you have an outstanding application with the Home Office to extend your visa or because your rights come automatically from EEA law, for example.

This will mean that legal aid lawyers approached by potential clients often won’t know if the clients meet the residence test or not. In reality, this will mean that even many people who meet the residence test won’t be able to access legal redress, because the lawyer they approach can’t be sure they meet the residence test, and won’t be able to grant legal aid unless they can prove that they do.

Championing the freedom, dignity and well-being of individuals?

We also raised one final, hugely important impact of the residence test: almost none of those held indefinitely in immigration detention will be able to access legal aid to challenge their detention, if the proposals are implemented. We asked Lord McNally how the Liberal Democrats, a party whose very constitution describes them as championing ‘the freedom, dignity and well-being of individuals’, could allow the indefinite detention of almost everyone in the detention estate, without access to the law.


We reminded Lord McNally that the consultation paper shows no predicted savings to the legal aid budget likely to be made by the residence test. There are likely, however, to be additional costs in implementing it – in administering applications for exceptional funding, for example (see our blogpost of 10 July 2013 for more on this). We asked Lord McNally why he’s planning to implement a measure which may bring about additional costs, without determining whether it will in fact save any money?

Lord McNally’s response

In response, Lord McNally didn’t address the residence test directly, but told us that every country has to have an immigration policy, and that it is hard to get this right. He told us that, as policitians, he and the coalition government see that immigration ranks second in people’s concerns about the UK currently. He accepted that some of this was ‘fed by malicious and misleading media’ but said the problems of the world cannot be solved by the UK having a liberal immigration policy.  He went on the say that he is trying make changes to legal aid while avoiding the worst injustices.

Lord McNally addressed our client Laila, who was held in detention for two periods totalling eight months before being granted refugee status, and said that people like her, who had never committed a crime in their lives, should not be held in detention. We welcome this extremely positive comment and hope to see this reflected in any future decisions regarding legal aid for those in detention.

We reminded Lord McNally of the government’s pre-LASPO promises, that legal aid would be kept for the most vulnerable, including detainees and victims of domestic violence, and asked why he was now excluding the same people from accessing help. He told us, ‘that’s why you should keep lobbying’. We assured him that we would!


Finally, we asked Lord McNally if, as the residence test was conceived as a way to address the public’s apparent concerns about immigration, and is unlikely to save any of the legal aid budget, it is in fact ideological?  Lord McNally told us that he was aware he had to be very careful in the world of Twitter (he’s right!) and that certain parts of the coalition think the residence test is a confidence-building measure, but not ‘us’.

A further consultation in September

Lord McNally concluded by confirming Mr Grayling’s earlier statement that there is to be a further consultation on the proposals in September. We asked if this was solely in relation to crime, and he confirmed there would be ‘some other statements at the same time about some other areas’.

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