An open letter to Chris Grayling: the residence test

Dear Mr Grayling,

As a concerned member of the public, I am writing to you in your capacity as Secretary of State for Justice, to express opposition to the 12-month “residence test” contained in the Transforming Legal Aid proposals.

The “residence test” will have a devastating effect on some migrants to this country. It is essential that people facing the extreme sanction of deportation or removal – which by definition entails a loss of liberty, and often entails separation from loved ones in this country – should have full and comprehensive access to legal advice. Although I recognize that asylum-seekers are exempted from the residence test, the measure will remove funding for former asylum-seekers who have already exhausted their appeal rights but have not yet been removed: they will not be able to receive legal aid funding until a fresh claim has been made, meaning that no funding will be available to assist them to make a fresh claim. In many asylum cases, the ability to make a fresh claim to the Home Office after the original claim has failed is of great importance, where new evidence has become available which was not available when a decision was made on the original claim. This is especially important given that many asylum claims are now processed on the “Detained Fast Track” in which asylum-seekers have only a short timeframe in which to gather evidence and make their claims.

The measure will also remove funding for people whose claim to remain in this country is based on the Article 8 ECHR right to private and family life rather than on Refugee Convention grounds. The right to private and family life is of paramount importance to our society, and people who have established substantial family ties in this country should not be removed. The Supreme Court has recently recognized the importance of giving appropriate weight to family ties in cases, for instance, where children in this country who are British citizens have a foreign national parent who is facing deportation or removal. (ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4.) Taking away legal aid for individuals in this position risks creating a situation in which more families are separated. Likewise, the residence test will mean no legal aid for other people who are unlawfully resident and have no claim for asylum: this includes some survivors of human trafficking, as well as people who have lived in this country for decades.

I am also opposed to some aspects of the proposed reform to legal aid funding for judicial review cases. Making funding contingent on success at the permission stage will discourage lawyers from taking on borderline and difficult cases, thus depriving people – including vulnerable migrants facing the extreme sanction of deportation or removal – of full access to justice.

I would therefore ask you not to proceed with these aspects of Transforming Legal Aid. I have sent a carbon copy of this email to my constituency MP, Iain Stewart.

Yours sincerely,

David Neale

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