Law Society backs Court
of Appeal ruling upholding access to justice for
migrants
The Court of Appeal has today
ruled that migrants have the right to insist on taking legal advice
before consenting to removal by the UK Border Agency [UKBA] at less
than 72 hours notice.
The case of 'Medical
Justice v the Home Secretary' related to a UK Border Agency
argument that migrants who consented to removal from the UK were in
effect waiving their right to legal advice.
The Court of Appeal today
decided that removal at less than 72 hours notice was insufficient
for access to effective legal advice. In doing so it upheld
important principles about an individual's right of access to legal
advice and to the courts when facing State action.
Responding to the ruling Law
Society Chief Executive Desmond Hudson said the Court of Appeal
stood above the criticism by politicians and elements of the media
about the courts' intervention in immigration cases.
“This case shows the need
for the courts to protect the rights of the individual, whether an
immigrant or anyone else, to have access to legal
advice.
“UKBA's failure to observe
its own procedural safeguards, to take steps to ensure that consent
was informed, and to keep proper records undermined its position,
leading not only to today's challenge but in some cases to migrants
having been removed then being returned to this country at the
taxpayer's expense.
“This case also
illustrates the impact of the cuts in legal aid fees that have
already taken place even before any further cuts. The two biggest
not-for-profit providers of immigration advice have collapsed
within a year of each other, hardly evidence of an overly-generous
legal aid system. Their collapse left immigrants with fewer options
for seeking urgent legal advice.
“Further court challenges
undoubtedly lie ahead, not only in immigration matters but the
other areas of law facing legal aid cuts which will deny access to
justice.”
The Law Society provided two
witness statements to the court. The Society stated that consent
has to be real and therefore properly informed by legal advice,
particularly when it means that the individual is withdrawing
outstanding court challenges. The Society pointed out that it is
simply unsafe for the UKBA to rely upon that consent unless it is
properly informed. It is therefore in the UKBA's own interest to
ensure that consent is properly given and recorded. The failure of
the UKBA to take steps to ensure that this happens, the failure to
contact migrants legal representatives in these cases and the
failure to keep proper records of 'consent' led to today's
court challenge.
Ends
Notes to editors:
Dinah Rose QC appeared for
Medical Justice before the Master of the Rolls (Lord Neuberger),
Lord Justice Maurice Kay & Lord Justice Sullivan. The solicitor
was Ravi Low-Beer of Public Law Project.
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