Ali Bandegani of the Garden Court Chambers Public Law Team represented SM, led by Chris Buttler of Matrix Chambers. They were instructed by Toufique Hossain, Jeremy Bloom and Jonah Mendelsohn of Duncan Lewis Solicitors.
In a landmark judgment of the High Court today, Mr Justice Swift declared that the arrangements for immigration detainees held in prisons to access immigration and asylum legal aid are unlawful.
The Claimant, represented by Duncan Lewis Solicitors, was detained in prison and was unable to access a legal aid lawyer for nine and a half months. In that time he represented himself in his asylum claim with dire consequences and was unable to successfully challenge the lawfulness of his detention. He challenged the legal aid arrangements for immigration detainees held in prisons on the basis that they are less favourable than the arrangements in place for those held in immigration removal centres (IRCs). Individuals detained in an IRC have access to an advice surgery that guarantees access to 30 minutes’ legal advice regardless of means or merit. Those detained under immigration powers in a prison do not. Bail for Immigration Detainees made a powerful intervention in the claim.
Mr Justice Swift held that immigration detainees in prisons are less well placed to access legal advice in IRCs, and that the Lord Chancellor had failed to justify the difference in treatment of these two groups. He declared that the Lord Chancellor had breached the Claimant’s right not to be discriminated against under article 14 ECHR, read with articles 2, 3, 5, 6 and 8.
Jeremy Bloom, the Claimant’s solicitor, said:
We are delighted with the outcome of this case for our client. We also hope that the judgment will lead to an improvement in the access that immigration detainees held in in prisons have to legally aided immigration and asylum representation. The current arrangements are not fit for purpose; they obstruct access to legal aid for some of the most vulnerable individuals and prevent them from effectively challenging the lawfulness of their detention and from advancing their asylum and human rights claims. At present, many of these individuals find it almost impossible to secure legal aid representation.
Before trial, the litigation had already led the Lord Chancellor to announce a wide-ranging review of the legal aid arrangements, with the aim of identifying the best way to provide equal access to high quality specialist immigration and asylum advice to immigration detainees across the detention estate. Mr Justice Swift held that the review was evidence of the Lord Chancellor’s acceptance that the difference in treatment is a significant matter that needs to be addressed, and that this reflects the position at law. The Lord Chancellor has not clarified when this review will be completed and when necessary changes will be implemented.
Duncan Lewis thanks Bail for Immigration Detainees for referring the Claimant to the firm, providing a wealth of evidence which supported the claim and for their intervention in the claim.
Read the full judgment here.
A version of this press release was first published on Duncan Lewis' website on 25/02/2021.
