Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid for Separated Children) (Miscellaneous Amendments) Order 2019 — House of Lords, 2019-10-01
Topic: Immigration
Jonathan Marks (Liberal Democrats, Centre to centre-left): My Lords, I, too, welcome this order and thank the Minister for introducing and explaining it. I also welcome the comments made initially by the noble Earl, Lord Listowel, regarding the position of care leavers and new adults, those points being echoed by the right reverend Prelate the Bishop of Newcastle and the noble Baroness, Lady Meacher As the noble Baroness, Lady Meacher, pointed out, the credit for this SI is due to the Children’s Society, for the judicial review it brought last year challenging the lawfulness of the exclusion of legal aid in these cases. Credit is also due to members of the Refugee and Migrant Children’s Consortium, who worked with the Children’s Society and the Government to ensure that this SI came into being, making good on the Government’s promise, given by Lucy Frazer MP, which was the basis on which the Government settled the Children’s Society’s case I can do no better in summarising the existing position and the reason for change than to quote from the statement of facts and grounds submitted by the Children’s Society’s legal team, led by Paul Bowen QC, with the consent of Mr Bowen: He says: "Where such children are involved in non-asylum immigration matters, with the very limited exceptions, these matters are currently considered ‘out of scope’ for the purposes of Section 9 of LASPO, and so will only be funded if an Exceptional Case Funding … determination has been made pursuant to Section 10 of LASPO These children are among the most vulnerable individuals in the country. They are at a heightened risk of abuse and exploitation as a result of their immigration status. The potential immigration processes and proceedings they face in an attempt to regularise their status in the UK are extremely complex. The consequences for these children if they do not or are unable to negotiate these processes and/or proceedings are fundamental and life-changing, ranging from a lack of access to further education, social services and healthcare to deportation. They have a consequent need for legal advice and assistance. That need is not currently being met by the ECF system nor by any other means. This is unlawful for the reasons summarized in the argument" The Children’s Society rightly claims that it securing this change was, "a significant achievement as so far it is the only cohort the government has agreed to bring back into scope for legal aid" It wrote that: "The change all our supporters and partners helped bring about will have huge implications for thousands of children who need this vital support"— I repeat the point made by the noble Baroness, Lady Meacher, about the numbers affected—and that: "It will ensure they can once again access the legal aid they so desperately need to live full and settled lives" I also quote from paragraphs 34 and 35 of the Government’s impact assessment, which state that: "Separated migrant children have distinct vulnerabilities and needs, which can be made worse by uncertainty in their immigration status. This includes the risk of going missing from local authority care, and being subject to exploitation in private foster care arrangements. Further, if children do not resolve their immigration status during childhood, they can become ineligible for certain public services (like being able to work, find housing or continue with education) when they turn 18 … It is expected that professional legal advice from legal aid immigration solicitors on non-asylum immigration matters will help to ensure more robust initial decision making because the original application should make the best possible case, improving the quality of applications and appeals to the Home Office" This case is absolutely overwhelming, so the Government must acknowledge that this change was long overdue and that the litigation should never have been contested, as it was for some time In welcoming this SI unreservedly, I remind the House that it is significant that this crucial reform was forced on the Government by judicial review. The review involved the courts considering a decision on judicial review as to whether the power in Section 9(2) of the LASPO Act should be used so as to bring unaccompanied and separated children’s immigration cases into the scope of LASPO. I also remind the House and the Government that the LASPO Act includes the power to bring claims of different types back within scope. That was a power for which we argued before the Act was enacted As we now know, the LASPO Act has caused great hardship in denying legal aid to a number of vulnerable groups, who cannot afford legal advice or representation and are left unable to understand or take advantage of their legal rights and protections without it. We have argued for restoration within the scope of legal aid of much social welfare law, more housing law and more cases of debt, for easier access to legal aid in domestic violence cases and for a wider exceptional case funding scheme. I hope that with the precedent of this statutory instrument, itself of limited but very important application, we may see an approach to the scope of legal aid more generally that is fairer, more generous and more progressive.