Legal Update: Immigration cases face aid cuts

This month sees very significant cuts to the provision of free legal assistance to children. Changes to the civil legal aid system brought about by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into force on 1 April. One of the changes relates to children who are subject to immigration control and means that legal aid is no longer available for most non-asylum immigration cases.

Among other types of immigration case, this change takes away legal aid funding from cases based on Article 8 of the European Convention on Human Rights (the right to respect for private and family life), European Economic Area (EEA) cases, and nationality and citizenship cases.

Each year, this change will exclude almost 2,500 cases involving children under 18 bringing immigration cases in their own right from access to legal aid as they go through complex administrative and legal proceedings that will determine their fate. Thousands more children whose cases are brought by their families are also affected.

Duties of local authorities
As many migrant children bringing cases in their own right are separated from their families and in the care of a local authority, the council’s duties will extend to ensuring that these children and young people have access to appropriate legal representation. Social workers should not provide immigration advice themselves.

If the child has an asylum claim or another kind of claim for international protection, legal aid funding should be available, but social workers should not make assumptions about whether a child or young person has such a claim. Instead, they should make a referral to a legal aid provider with an asylum contract from the Legal Aid Agency.

Where a child or young person has a pure immigration case and no legal aid funding is available, it will fall to the local authority to pay privately for legal representation. Failure to assist a child or young person to resolve their immigration status could leave local authorities open to challenge. The reason for this is that the local authority is under a duty to ensure that their functions are discharged having regard to the need to safeguard and promote the welfare of children, and a key part of a local authority care plan is the development of a “long-term plan” for the child’s future.

The regularisation of a child’s immigration status is a key aspect of planning for their future and is always likely to be in the child’s best interests. It is vital that a child receives timely legal advice, which will inform any further action that might need to be taken.

In addition to domestic legal obligations, the UK government is obliged, under the UN Convention on the Rights of the Child, to treat the child’s best interests as a primary consideration in all actions concerning the child and to assure the child the right to express their views freely in all matters affecting them. The UNCRC also contains a number of other rights of direct relevance to the provision of legal assistance to a child in specific circumstances.

These changes will obviously raise issues regarding budgets and resources, and local authorities may feel it appropriate to push government so that these cases are brought back within the scope of legal aid in the future.

For now, though, securing private legal representation for children and care leavers with immigration claims should not be seen as secondary or optional: it is critically important to promoting the welfare of the child or young person and forms part of the local authority’s duties.

For more information, contact the Migrant Children’s Advice Line on 020 7636 8505