LASPO and Family Migrants

Frances Meyler and Dr Sarah WoodhouseDirectorsLiverpool Law Clinic School of Law & Social Justice

Seismic Change

• Legal aid provision became more generous during late 1990s and early 2000s• Almost all immigration cases funded• But increased controls on quality by the Legal

Services Commission• Some cuts from 2004• LASPO: a radical departure

No longer fundedAdvice and representation, including on appeal, in relation to:• Family migration / reunion • Deportation or removal from

the UK • Article 8 ECHR • Unaccompanied migrant children (non-asylum)

? Exceptional Cases Determination: probably only applies in very limited circumstances

from 1/4/13

Asylum

Domestic violence

SIAC

JR / Habeas

Trafficking

Detention

In Scope

Impact

• 53,000 fewer cases will receive legal aid funding in

the immigration category;

• 92% reduction in the number of individuals receiving

services in relation to an initial application;

• 20% less in relation to preparation and

representation for appeal hearings.

Impact Assessment, Annex A: Scope, para 10.

Quality Issues

• Migrants unable to recognise poor quality advice• LSC de facto regulator but not in private cases• Concerns persist on the professional bodies’

ability to regulate immigration services

Changes to the Immigration Rules

• New income requirement of £18,600, additional amounts for each child

• Complicated rules about how to establish income Partners

• To qualify, must now “require long-term personal care to perform everyday tasks” and be unable to “obtain the required level of care in the country where they are living”.

Elderly dependent

relatives

• Attempt to define the operation of Article 8 ECHRDeportation

‘Importance of the issue’

‘Free and personal choice’ ? • Joining/remaining w spouse/child/parent• Should children leave with parent?• Should children leave when turn 18?• Fate of unaccompanied children• Should long-term UK residents leave after

serving a criminal sentence in the UK?• Bringing an elderly dependent relative‘Constructive deportation’ of citizens

Huang [2007] UKHL 11“Human beings are social animals. They depend on others. Their family, or extended family, is the group on which many people most heavily depend, socially, emotionally and often financially. There comes a point at which, for some, prolonged and unavoidable separation from this group seriously inhibits their ability to live full and fulfilling lives.”

EB (Kosovo) [2008] UKHL 41

“it will rarely be proportionate to uphold an order for removal of a spouse if there is a close and genuine bond with the other spouse and that spouse cannot reasonably be expected to follow the removed spouse to the country of removal, or if the effect of the order is to sever a genuine and subsisting relationship between parent and child.”

‘Integrity of the family unit’

Public family law / family migration parallels:• State intervention: public authorities bringing

proceedings affecting the integrity of the family• Severing family ties• Separation across continents, not just counties

Rationale for retention in public family law:• Extremely important issues at stake• Emotional nature of subject-matter• Personal circumstances of individuals

All make it difficult to present own case• No viable alternatives to legal aid

Children-Section 55 Borders Act 2009: need to safeguard and promote welfare of children in the UK-ZH Tanzania[2011] UKSC 4 :• Best interests of the child a ‘primary consideration’; • where best interests clear, should usually prevail• Child’s interests separately considered• Child may require separate representation

- Who will obtain info, ascertain best interests, represent?

Local authorities?

‘Ability to present own case’

• Venue• Vulnerability• Complexity of the law:

- “no area is more complex than the whole business of the Immigration Rules and the procedures surrounding them”

[Lord Taylor of Holbeach, Hansard, col. 1087]

- Recent seismic changes to the Immigration Rules

Conclusion

• Context: - Changing the Immigration Rules 2012- Appeal lodgement fees make access to justice expensive- Quality of private representation often poor- Scope appeal rights, abolishing family visit appeals 2014• Rationale does not justify legal aid cuts in FM cases: • Importance of issues at stake• Welfare of children• Migrants poorly equipped to present own case• Forum highly adversarial• Immigration law particularly complex