In its consultation paper the government said it was ‘concerned that individuals with little or no connection to this country are currently able to claim legal aid … at the taxpayers’ expense. These may be people who have never set foot in England or Wales or those who have never paid taxes in the UK’.
So the government has proposed that only people who have legally been resident, at any point in their life, in the UK (or one of its territories) for 12 continuous months will be entitled to legal aid. They must also be resident in the UK when they apply for it. Asylum seekers with active cases will be exempt.
What this means is that trafficked men or women, victims of torture, abuse or unlawful detention abroad at the hands of British agents, many thousands of immigrants and failed asylum seekers will no longer be entitled to legal aid to defend their human rights, challenge unlawful decisions against them by the state or sue the government for mistreatment.
Women and immigrant support groups have also lashed out at the proposals warning of the devastating impact it will have on people fleeing rape, torture and abuse. Unless a claim for asylum is being processed they will not be entitled to legal aid. However many refugees do not make an immediate claim when arriving in the country or give full details of why they are fleeing which is then used against them by the UK Border Agency. If their claim is dismissed they will no longer be entitled to legal aid to challenge the decision before they are deported.
Only this week three trafficked juveniles and a woman were released from jail after having their convictions quashed in the Court of Appeal for cultivating drugs and having fake documents as, the judge ruled, they should be considered victims and not perpetrators. They would no longer be entitled to legal aid.
Harriet Wistrich, a solicitor at Birnberg Peirce, said: “The residency test itself is discriminatory, probably unlawful and unworkable and it’s not only going to be a total denial of justice, it’s going to be a huge loss to the British public because it’s only through these cases that the police, the intelligence services and the immigration services can be held to account when they do wrong.”
The resident test will even stop the families of foreign nationals killed by British state representatives from accessing legal aid to sue the government, launch judicial reviews into its actions or from being represented at an inquest to establish what happened.
Wistrich represented the family of Jean-Charles de Menezes, who was killed by Metropolitan police officers in 2005 when they mistook him for a terrorist and then lied about the circumstances of his death, at his inquest thanks to legal aid in an attempt to establish the events that led to his death. Under the new proposals his family in Brazil would not have been entitled to legal aid.
The family of Baha Mousa, the hotel receptionist killed by British soldiers after being interrogated in Iraq, used legal aid to launch a judicial review into his death and a civil claim against the British government. They subsequently received £2.8m in compensation from the British government while the behaviour of the soldiers involved was exposed. They would no longer be entitled to legal aid.
Michael Fordham QC, of Blackstone Chambers, said foreigners with strong cases against the government, but without the means, will be ‘wiped out’ by the Ministry of Justice’s proposals. He said: “We go to war with our human rights flag [but] people who wouldn’t get through the door of any court unless they get public funding secure accountability here in London from judges and practitioners they will never meet – that’s completely wiped out.”
Another case was Binyam Muhammad, who was arrested in Pakistan in 2002, rendered to Morocco and Afghanistan where he was tortured with the knowledge and complicity of UK secret services and finally sent to Guantanamo Bay before being released in 2009 without charge. He received £1m from the British government. He would have not been entitled to legal aid while in detention.
Fordham said: “When they did this previously there was a smoking gun letter from the Ministry of Defence and it said to the Ministry of Justice it would be very helpful if we could get rid of these cases because it is very inconvenient to lose them. So it’s nothing to do with time wasting cases, it is to do with cases that succeed and the government having to pay the costs.”