TEMPLATE LETTER TO MPs RE LEGAL AID, SENTENCING AND PUNISHMENT OF OFFENDERS BILL

This template is designed to help you write to your MP drawing attention to why immigration is a special case.  The rules about the regulation of advisors mean that general advisors will be committing a criminal offence if they advise on immigration.  Immigration has been held not to fall within the scope of Article 6 of the European Convention on Human Rights, and thus immigration cases are not eligible for exceptional funding under the Bill.  In short, those refused legal aid for immigration will have nowhere else to go. You can augment the template, which is also available on the ILPA website at http://www.ilpa.org.uk/resources.php/14177/template-letter-to-mps-re-legal-aid-sentencing-and-punishment-of-offenders-bill-10-february-2012 , to create a letter expressing your particular concerns.

 

If you do not know who is your MP see http://findyourmp.parliament.uk/ and can follow the links on that page to write to your MP.

 

You can write to your MP at House of Commons London SW1A 0AA

 

Dear [MP’s name]

 

The Legal Aid Sentencing and Punishment of Offenders Bill:

The proposal to take immigration out of the scope of Legal Aid

 

I write to  draw your attention to two ways in which this Bill’s effects in taking immigration cases out of the scope of legal aid  are uniquely detrimental, neither of which, I believe, has received adequate attention by the Government or in the debates on this bill to date:-

 

No ‘exceptional case funding’

 

The Bill makes provision for ‘exceptional case funding’ for cases in which a person requires legal aid for a matter generally excluded from the scope of civil legal aid. However the Government has expressly said in relation to immigration, and not in any other area, cases will be excluded from exceptional case funding.  The rationale for this is that current caselaw from the European Court of Human Rights says that immigration cases are not within the scope of Article 6 of the European Court of Human Rights (right to a fair trial) for technical reasons and the Government’s intention is to limited funding of exceptional cases to cases where not to fund would result in a breach of Article 6.  I refer you to the Lords Committee debates of 18^th January 2012, col 668 where  Lord Wallace of Tankerness confirmed this and said that exceptional case funding will not be available in any immigration case, not even that of a separated (unaccompanied) child. This is in contrast to repeated assurances that in other categories of civil law,  where there is a real need, legal aid funding will be available via the exceptional case provisions.

 

Regulation of advisors

 

The provision of legal advice in immigration is regulated in a way that is unlike any other area of legal advice provision. In the Green Paper[1] which preceded the Bill, the Government set out its opinion that the voluntary sector would be part of the solution, providing general advice in those areas of law to be removed from the scope of civil legal aid. This will not work for immigration, as the Immigration Law Practitioners’ Association explained in its response to the Green Paper. I quote:

 

“It is not realistic to expect the voluntary sector to take on responsibility for providing immigration advice and representation … To give immigration advice in the course of a business ‘whether or not for profit’ an advisor must be a solicitor, barrister, or regulated by the Office of the Immigration Services Commissioner.^[2] If not, the advisor commits a criminal offence.”.

 

Regulation of legal advice in immigration is a good thing, for this area of law is complex and people need advice from trained specialists, but the consequence of such regulation is that there are fewer sources of help as charities and general advice agencies not in a position to meet the  requirements imposed by the Office of the Immigration Services Commissioner[3] cannot provide assistance.

 

No alternative

 

I am sure that you have assisted people in your advice surgery with immigration enquiries, so you will know that people who need such advice are very often British or long settled in the UK. The combined effect of no exceptional case funding and the regulation issue, as described above, means that in future MPs and their caseworkers, who are not regarded as giving advice ‘in the course of a business’, will be the only remaining sources of advice on immigration left to those who cannot find or afford private advice.

 

What can you do?

 

I urge you to raise within your party and with Ministers now the concerns expressed in this letter.  I should be very grateful for sight of any reply that you receive.  Amendments have been tabled in the House of Lords which seek to retain some / all of immigration work within the scope of civil legal aid. If these matters return to the Commons I urge to support these amendments.

 

Yours sincerely