Legal Update: Social workers as legal advisers

During the passage of the Legal Aid, Sentencing and Punishment of Offenders Bill, concerns were frequently raised about the proposals to remove legal aid for all non-asylum immigration cases and the impact that this will have on children subject to immigration control. This includes, for example, children who have lived in the UK for many years – sometimes for most of their life – but who have no regular immigration status. The bill was passed, and as of April 2013, according to Ministry of Justice data, around 2,500 non-asylum immigration cases a year involving children under 18 bringing cases in their own right will no longer be eligible for free legal advice and representation.

Many of these children are in local authority care and children’s services will have a statutory duty to ensure that the child or care leaver is legally represented. Such costs would be at private rates, resulting in a substantial transfer of cost from the Ministry of Justice to local authorities. The Local Government Association has estimated that this could cost local authorities around £10m per year.

Social worker assistance
The government is currently exploring an even more worrying option – that social workers be tasked with assisting children in their care with immigration applications. As the provision of legal advice on immigration issues is highly regulated, the government’s proposal is that social workers could become exempted by the Office of the Immigration Services Commissioner (OISC) so that they can provide “low-level advice” and assistance with what is described as simply “form filling”.

This raises a number of serious concerns. For one, the non-asylum immigration claims and possible appeals brought by separated children and young people, often on the basis of Article 8 of the European Convention on Human Rights, are far from “low level” or “routine matters”. They can often be incredibly complex, requiring specialist legal representation, and the OISC does not even permit those regulated only at level one, the lowest level within their regulatory scheme, to do such work. If a social worker were to operate beyond the level of their exemption they would be committing a criminal offence. Accreditation at level two requires significant training, and even at level one the OISC scheme requires supervision and continuing professional development. Social workers are simply not trained, or adequately supervised, to represent children in their immigration matters.

Legal and ethical boundaries
Furthermore, to be expected to act as a legal representative is at odds with the core role of a social worker. The Health and Care Professions Council standards of proficiency outline that social workers must “be able to practise within the legal and ethical boundaries of their profession”. They must “understand the need to promote the best interests of service users and carers at all times”, in contrast to a legal representative, who must act on their client’s instructions. Having responsibility for providing legal advice, which could result in serious risks to a young person returned to their country of origin due to a poorly prepared application, is highly inappropriate and could undermine the relationship between social worker and child.

The act contains a power for the government to bring areas of law back into
the scope of legal aid and it is hoped that the government will accept that children need legal aid for immigration cases. The alternative will be a huge burden placed on local authorities and on the courts, and a great risk of children being denied access to justice, contrary to the UK’s duty to safeguard and promote the welfare of children and ensure their best interests are upheld in all decisions affecting them.