Migration Pulse

Government commits to bring cases under the domestic violence rule back into the scope of legal aid

Following yesterday's Government announcement by the Legal Aid Minister, Katherine Perks from Rights of Women writes that this demonstrates that we can successfully challenge the retrogressive measures in the Legal Aid Bill. The collective campaigning on this issue with MPs has had an impact, however, despite this early victory, much more needs to be done.
July 20, 2011
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Katherine Perks

Katherine Perks is the Policy and Public Affairs Officer for Rights of Women. She specialises in international human rights law and has experience conducting research and developing policy and campaigning positions on human rights, equality and non-discrimination issues in a number of countries. She previously worked with The Equal Rights Trust and Amnesty International.

Government has agreed to bring cases brought under the domestic violence rule back into the scope of legal aid within the proposals set out in the Legal Aid, Sentencing and Punishment of Offenders Bill. The statement from the Legal Aid Minister, Jonathan Djanogly MP, was made yesterday 19 July during the sixth sitting of the Public Bill Committee in response to a question raised by the Conservative Party MP, Ben Gummer:

“Mr Djanogly:  My hon. Friend makes a good point. The matter of including cases brought under the immigration domestic violence rule in the scope of civil legal aid was raised a great deal during the consultation, and we considered the point carefully. Although we accepted that the applicants in such cases were vulnerable, we did not think, on balance, that legal aid was required, essentially because the applications, similar to other immigrant applications, were paper-based. We recognised that people might need assistance with obtaining the required documentary evidence, but we considered that such assistance need not be specialist legal assistance funded by legal aid.

After further consideration, however, we accept that such cases are unusual. There is a real risk that, without legal aid, people will stay trapped in abusive relationships out of fear of jeopardising their immigration status. The type of trauma that they might have suffered will often make it difficult to cope with such applications. We also appreciate that people apply under great pressure of time, and access to a properly designated immigration adviser is a factor. We intend to table a Government amendment to bring such cases into scope at a later stage. “

Other immigration cases where the applicant is at risk of gender-based violence

This is very encouraging because it demonstrates that we can successfully challenge the retrogressive measures in the Bill that affect women who are experiencing violence, including within the contentious area of immigration law. We are convinced that our collective campaigning on this issue with MPs has had an impact, and thank everyone who has contacted their MP to date. We know that our letter-writing in advance of the second reading of the Bill in the House of Commons on 29 June 2011 had an impact: during that debate a number of MPs from across all parties raised concerns about the need to retain legal aid for all cases where domestic violence is an issue, including legal aid for applications under the domestic violence rule. Rights of Women’s director Emma Scott also addressed this issue directly in her evidence to the third sitting of the Public Bill Committee last week on Thursday 14 July 2011 (you can read the transcript here).

Until this point, the Government has been proposing to withdraw legal aid from immigration and some asylum-support law cases without any reference to the vulnerability of the applicant of the risks that they face. This statement is the first concession, and acknowledgement from Government  that such a stance is unacceptable and will place women at further risk of violence and abuse.

However, despite this early victory, we remain very concerned that the removal from scope of legal aid in immigration cases will leave many women at greater risk of violence and abuse including:

  • Individuals who have been trafficked into the United Kingdom for the purposes of sexual and other exploitation;
  • Migrant domestic workers;
  • Women challenging decisions in relation to ‘cash only’ asylum support (legal aid will be retained for advice and assistance on claims for support provided the claim includes a claim for accommodation); and,
  • Women with refugee leave or humanitarian protection seeking reunification with children and other close family members separated from them in their country of origin (family reunification).

All of these cases raise complex issues and effect particularly vulnerable women whose fundamental human rights, including the right to be free from inhuman and degrading treatment, are at risk.  Strikingly, what sets these cases apart from other areas of law is that there are no alternative advice providers because it is a criminal offence for anyone (such as the advice organisations that the Government has suggested can provide practical help and assistance in place of legal aid) to give immigration advice or services unless they are qualified to do so. The Government has now conceded that this is a very real problem in relation to domestic violence rule applications. It must now acknowledge the difficulties faced by other vulnerable applicants in immigration cases who have experienced or are at risk of violence and abuse, who simply cannot be expected to represent themselves in applications effectively because of the trauma they have experienced.

Next Steps

The Bill will now be debated and amendments discussed at the Committee stage until about 13 October when it will be returned to the floor of the House of Commons for the report stage. This is when MPs will debate and vote on proposed amendments before the Bill has its third reading. 

Rights of Women will be campaigning hard with other organisations over the coming months to ensure that MPs and Peers are aware of the need to retain legal aid for all women who have experienced or are at risk of gender-based violence and abuse, and the devastating impact the proposals will have if this does not happen.

Comments

Katherine,
Thanks for your post and congratulations on the victory through Rights of Women's campaigning. As early as it may be, it's still a crucial one.

You wrote that there's a serious lack of resources available to give qualified immigration advice or services. Though the Government has conceded that this a problem, are there any proposals or suggestions to remedy this? Does Rights of Women support any plan to address the problem?

This article was also quoted in the Guardian piece: "U-turn gives legal aid to victims of psychological domestic violence"

http://www.guardian.co.uk/law/2011/jul/26/u-turn-legal-aid-domestic-violence-victims

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