Tag Archives: children

Legal aid changes will fail victims of trafficking

The New Statesman published a detailed article on Monday, outlining how the Ministry of Justice’s proposed legal aid cuts will impact on victims of trafficking and victims of domestic violence. As the article explains, under the current proposals, many victims of trafficking – including many women and children – will not be able to challenge a decision not to recognise and support them as victims. Similarly, many survivors of domestic violence who don’t meet the proposed ‘residence test’ – including refugees in their first year of status – won’t be able to access any non-criminal legal aid at all, even if they need it urgently to ensure a violent partner stays away from them or because their children have been taken into care.

The MoJ’s response

The MoJ issued a swift response to the New Statesman’s article, published at 8am on 6th August. The response stresses the government’s determination to tackle the trafficking and exploitation of vulnerable men and women, but states:

The proposed legal aid reforms would not impact on trafficking victims in the way suggested. We are determined to bring down the cost of legal aid, but not at the expense of the most vulnerable. Contrary to suggestions here legal aid would continue to be available for the initial stages of a judicial review case, and where victims of trafficking were seeking to claim asylum they would be exempt from the proposed residence test. Those who did not meet this residence test would also be entitled to apply for exceptional funding“.

We believe that this statement is wrong and misleading, and that the legal aid reforms will impact hugely on the rights of victims of trafficking. Here’s why:

Victims of trafficking and asylum claims

For the government to say that victims of trafficking would be able to receive legal aid if they claimed asylum is highly misleading. It overlooks the fact that often victims of trafficking do not have an arguable asylum claim, but they do have valid grounds to be granted permission to stay in the UK for other reasons, based on their human rights or their rights under the international convention on trafficking which the UK has signed.

This is because an asylum claim requires someone to be at risk of persecution if they are sent back to their country. Often trafficking victims do not necessarily have a fear of returning home, but they still have valid reasons to be allowed to stay in the UK. Many are brought to the UK as young children, and remain here having escaped their trafficking situation, and go on to have established their own lives and relationships here. Others suffer from significant mental and physical health problems as a result of their trafficking experiences, to the extent that they would be unable to function on their own if returned to their country of origin.

If the proposals go through, for example, a young Nigerian woman trafficked to the UK for domestic servitude as a young child who manages to escape her traffickers and asks to be recognised and protected as a victim of trafficking would have no legal aid to challenge a decision that she is not a victim of trafficking; no legal aid to challenge a decision to refuse to assist her to recover; no legal aid to challenge a decision not to accommodate her with her children; no legal aid to keep her traffickers away from her should they seek to find her; and no legal aid to prevent the local authority from taking her children into care. Can the government really say the proposals will not have an impact on victims of trafficking?

Legal aid funding for the initial stages of Judicial Review

The MoJ states that under the proposals, legal aid will still be available for the initial stages of Judicial Review work. While technically correct, this statement is also misleading. It overlooks, first of all, that it will not be available for those who don’t meet the ‘residence test’, as discussed above.  More importantly, though, it overlooks the fact that in most cases a Judicial Review has to go beyond the initial stages in order for the individual bringing the case to get the remedy they need.

Let’s look briefly at the process in more detail. Currently, lawyers involved in Judicial Review work are paid to carry out work before a Judicial Review is issued. This involves deciding whether the case is worth running, and then sending a pre-action letter to the government body in question, outlining why we believe them to have done something wrong, asking them to fix it so we don’t have to go to Court, and requesting relevant documents to help us find out more about what has happened in the client’s case. Typically, these letters receive no response, and so further funding is applied for an a Judicial Review is issued. If the government body in question does respond to a pre-action letter, it is usually to outline why it doesn’t think it has done anything wrong at all, and why it doesn’t then need to fix anything.

Often, it is only once proceedings are issued, and the government body realises that if it continues to fight the case it will be likely to lose, that it backs down and settles. It’s rare for a government body to concede at the pre-action stage. If a government body knows that funding is unlikely to be granted for the client to proceed to issue Judicial Review proceedings, it can continue to ignore pre-action letters, with impunity. Is this perhaps part of the plan? See our blog post below for more on the state and Judicial Review.

Exceptional funding

The MoJ claims that ‘exceptional funding’ will be available for those who don’t meet the residence test. This is seriously misleading because in practice exceptional funding is only available in very, very few cases. In fact the Lord Chancellor’s guidance itself makes clear that the government do not think that exceptional funding should generally be granted for immigration cases (which trafficking cases would be). So how can the government claim that exceptional funding is enough to ensure access to justice for victims of trafficking?

When the government made dramatic cuts to legal aid earlier this year, removing from scope many important areas of family, housing and immigration law, among others, we were promised the same – that exceptional funding would be available for those who really need legal aid. Yet from 1 April 2013 to 18 June 2013, there were just five grants of exceptional funding (see detailed Freedom of Information request here).  The exceptional funding application form is 14 pages long and comes with 19 pages of guidance – too long for firms to be expected to do on a pro bono basis. The Public Law Project have criticised the exceptional funding regime as a ‘fig leaf, not a safeguard’.

Finally, the MoJ addresses victims of trafficking, but doesn’t specifically explain how it will protect victims of domestic violence if the proposals proceed. A British citizen escaping to a refuge in the middle of the night without any belongings; a foreign national here on a spouse visa; the wife of a European national with the automatic right to remain here under European law – how would any of these be able to prove that they meet the residence test, if they suffered domestic violence and urgently needed help?

The MoJ’s proposals will prevent victims of trafficking from being able to enforce rights they enjoy under UK law. The reforms are short-sighted, unclear on whether they will make any financial savings, and part of a wider anti-migrant ideology – let’s continue to make our opposition to them heard!

Read more

Our previous blogs on the Residence Test are here

The government’s recent defence of their proposed changes to criminal legal aid has also been criticised in today’s Guardian by the Justice Alliance and others here

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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!