At some point in the coming weeks, members of the House of Commons may possibly vote on regulations to bring in a residence test for legal aid in civil cases. I say possibly as, at the time of writing, it is not certain that MPs will have a chance to vote on the new law at all.
This is because the government is introducing the test - which will deny thousands of children and adults legal support - through secondary legislation. This means that there will be no debate in the House of Commons and no opportunity for MPs or Peers to table amendments to the legislation.
All that has happened is that a small group of MPs discussed the regulations in what is known as a Delegated Legislation Committee. These committees are usually filled by MPs chosen by their party leadership precisely because they can be counted on to follow the party line - and this time was no different. In essence, there has been, and will be, extremely little scrutiny of the new law.
Some might think this doesn't matter. Some may point out that thousands of pieces of law are made is this way every year. However, very few, if any, pieces of secondary legislation will have such far reaching consequences as the residence test for civil legal aid.
The residence test will mean that only those people who can both show that they have a legal right to reside in the UK and that they have exercised this right for a consecutive period of 12 months at some point during their lives will qualify for civil legal aid. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (better known as LASPO), greatly reduced the types of cases for which civil legal aid is available. The question of which cases should remain within the scope of legal aid was hotly debated when LASPO was before parliament and only those deemed most vital made the final cut. These include cases to do with Special Educational Need provision, domestic violence cases, human trafficking cases and facilities for disabled persons.
The residence test, if implemented, will say that if you do not satisfy the test, you do not deserve legal aid for these types of cases. The government argues that this is because funds must "only be used to help those with a strong connection to the UK" - whatever that means.
However, what this test fails to recognise is that recent migrants are no less likely to suffer wrongful treatment by public bodies and others than anyone else. Indeed in many cases they are more vulnerable. What this test says is that women who are victims of sexual abuse will be denied access to the justice system if they cannot pass the residence test. It will mean that for some people mistreated by police officers they will be unable to challenge that treatment due to their immigration status.
The residence test has been subject to very serious criticism from a number of parliamentary committees. The Joint Committee on Human Rights, of which I am a member, has published two reports on the test. The most recent concluded that, if enacted, the test will inevitably lead to breaches by the UK of the United Nations Convention on the Rights of the Child because it will prevent children from being effectively represented in legal proceedings.
For example, nearly half of all children who arrive in the UK on their own and who claim asylum are given what is known as "limited leave to remain as an unaccompanied asylum-seeking child". It is granted for 30 months or until the child turns 17-and-a-half, whichever is shorter. Children granted this leave, who, as the Coram Children's Legal Centre point out, have been recognised as being unable to return home by the Home Office, will not pass the residence test for the first 12 months. This is a clear breach of Articles 3 and 12 of UNCRC.
Furthermore, next week the House of Commons will debate the Modern Slavery Bill, which will go some way towards tackling the horrendous reality of human trafficking and contains much to be applauded. Yet the residence test captures many victims of trafficking. The government have introduced an exemption to the test for certain relevant immigration and employment cases and actions against the trafficker, but it does not cover, for example, claims for community care services, claims in tort or damages claims for breach of human rights. It also does not extend to judicial review, which is the only way to challenge a decision that there are not reasonable grounds for considering that a person has been trafficked.
There is also a lack of an exemption for individuals who are stateless. In April of last year, the Home Office introduced new rules to allow people to be granted leave to remain on the basis of their status as a stateless person. Hannah Arendt famously viewed statelessness as the denial of "the right to have rights", yet these people will be captured by the residence test. This is despite the UK being a signatory to the 1954 Convention on the Status of Stateless Persons, Article 16 of which states that such persons must be granted "the same treatment as a national in matters pertaining to access to the courts, including legal assistance".
These are just some of the issues with the test. If it had been introduced through primary legislation, then these issues would have been fully aired and solutions sought. But instead the test will almost certainly become law within the next few weeks leaving many questions unanswered. Not only that, but one of the main tenants of our justice system - that of equality of access - will have been significantly damaged. It is depressing that such a change will occur with barely a whimper around Westminster.
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