The LASPO ‘safety net’ was leaving thousands of lone migrant children at ‘serious risk’, according to a report published by the Children’s Society last month. As a result of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, support for all non-asylum immigration claims was cut subject to its controversial exception case funding (ECF) scheme.
According to the group, the LASPO cuts were ‘particularly pernicious’ for unaccompanied and separated children who are ‘some of the most vulnerable young people in our society’. The Children’s Society argues that there is ‘a postcode lottery’ for young people in need of help with their immigration status as the number of support services has collapsed by as much as 50% in four years. ‘As well as facing finding legal help, children also face rising Home Office fees,’ the group said. ‘Since 2013, fees have increased by at least 45%.’
The Children’s Society, together with Just Rights, had previously sent a Freedom of Information request to the Ministry of Justice prior to LASPO’s implementation to discover how many children would fall out of scope of legal aid as a result of the cuts. The groups reckoned that the numbers for children accessing ECF should be compared against a ‘minimum estimate’ of 2,490 cases of children who would have received support pre-LASPO. ‘Even in 2015/16, with the much improved success rate, only 15 applications were made for immigration claims under ECF for children,’ the new report said. This represented ‘less than 1%’ of the 2,490 cases.
According to the study, the process of submitting an exceptional funding application required lawyers to undertake ‘significant “upfront” and “at risk” work’. ‘This means that there is no funding for the time they spend with children to apply, unless the application for ECF is successful and it will only be worth it if the case is an ‘escape fee’ case as opposed to a fixed fee case for £234,’ it said. ‘This means that not all the ‘successful’ work that legal practitioners do with, and for, children in their applications is remunerated and they get no funding at all if unsuccessful.’
Practitioners were also concerned that, even when cases were granted ECF funding, the rate of remuneration for ‘mixed cases’ (i.e., applications that combined a claim for asylum and Article 8 ECHR rights) was capped at the asylum rate. Most lawyers expressed concerns over the ‘gap’ between the time spent on ‘lead-in’ work for the application, not recoverable, ‘and the process of actually doing and putting in the application’.
‘I am not a big fan of the exceptional funding because of the way it works,’ ‘Gary’, a legal manager and immigration solicitor told the group. ‘By the time we have done the application, it is gone back and forth, and we actually start the work, the £234 funding is not worth the time. We may as well write it off and do it as pro-bono… With exceptional, you either have to do a huge amount of work to make it pay or you have to do next to nothing.’
Overall, respondents found that ECF was ‘not acting as a sufficiently robust system for children to be able to, without discrimination, access their effective and unhindered right to a legal remedy in their immigration cases’. ‘It seems to have a lot of holes in it and it is fixed so close to the floor that if you fall, you are hitting the floor anyway,’ one barrister said. ‘It is not working.’
The Children’s Society made a number of recommendations, including that the Government should ‘reinstate’ legal aid for all unaccompanied and separated migrant children in matters of immigration under LASPO and all children suspected of being trafficked should have access to legal aid either under the LASPO or by ‘clear’ exceptional funding guidance.
You can download the report HERE
Case Study: Abebi
Ryan, an immigration solicitor, was asked to support what he first thought was an immigration application from an adult. It became very clear that what was actually in front of him was an application from a child with very palpable trafficking indicators and a history of forced marriage.
The child, Abebi, who Ryan thinks is 16 years old, has been in the country since she was 13 years old. She has been age assessed as 27 by the Home Office, and the local authority are refusing to accept that Abebi is a child, despite bone density scans that indicated an age range of between 16 to 20 years.
The local authority has refused to take her into care, despite repeated attempts by Ryan for them to reconsider their decision. The girl is highly vulnerable. She has spoken to Ryan about having been sold and she has been forced to work in a brothel. There is evidence of torture and branding by the traffickers and the girl’s mental health is in a critical state, threatening suicide. She is living in adult hotel accommodation in a notoriously unsafe area of the town. At the point of the interview, Ryan had been working on this girl’s case for six months free of charge, as she is out of scope for legal aid funding, and he describes the whole situation as a ‘huge disaster’.
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