Neena Acharya (Lambeth Law Centre)
The way migrants are treated by national laws and policies in terms of status, access to employment, health and other rights is relevant to us all and impacts on us all in the long term. Over the past few years the government has made massive changes to legal aid funding of immigration cases, and to immigration law, culminating in the 2014 Immigration Act. The stated aim of this piece of legislation was to create a deliberately hostile environment for migrants. What is the impact of a highly punitive immigration regime? I write as a lawyer working with migrants and asylum seekers at a Law Centre, and reflect on the difficulties produced within a hostile migration environment, for both migrants and law practitioners alike.
I do not have the space here to comment on all aspects of the 2014 Act, such as cuts to appeal rights or the bar on the Tribunal from considering a new matter on appeal without the consent of the Secretary of State for the Home Department, other than to note that these matters chip away at the rule of law, (as do the cuts to legal aid). What I will emphasise is that these cuts and the diminishment of rights within the law ultimately affect us all. Here, I shall attempt to navigate a small piece of the changes to the law with the example of my client ‘Eva’ (not her real name). Eva is typical of many Law Centre clients (who have been destitute for years, have physical or mental health issues and who will never earn more than subsistence wages).
Eva is from a West African country. Some years ago, she fled a violent partner and came to the UK. She could have claimed asylum due to her fear of ill-treatment on return, (although even if she were believed, she would have been refused on the basis that she could live safely in another part of her country). In any event she did not seek legal advice and instead she overstayed her visa, and found work cleaning toilets. She met a British man, and entered into a relationship with him. This man was also violent towards her. They had a son (he is British), and the relationship ended after the violence was reported and social services became involved. The father has no contact with his child, and has never shown any interest in his upbringing. The child has a life-threatening medical condition, for which there is a very low life expectancy in Eva’s country of origin due to lack of available treatment.
In July 2012, the government made changes to the Immigration Rules for families, with the explicit aim of making it more difficult for people to ‘use’ Article 8 of the European Convention on Human Rights, the right to family and private life, as a means of remaining in this country. In fact, the interpretation of Article 8 by immigration judges is so contentious that the government has put Article 8 considerations into statute. Immigration Article 8 law sources now include the 2014 Act, the Immigration Rules, guidance given to Home Office caseworkers, domestic and international case-law. This range of (complex) sources makes for a system that is difficult to work with as a practitioner, but in April 2013, Article 8 immigration cases were cut from the scope of legal aid, so clients with no funds have no access to legal representation.
Eva had somehow raised the application fee and instructed a private solicitor to make an application for leave to remain on the basis that she is the sole carer of a British citizen child. The Home Office refused the application with no right of appeal, and Eva was eventually referred to the Law Centre for advice. We applied for legal aid to challenge the Home Office decision by a process called judicial review (this type of funding is still in scope, albeit with limitations). Funding was granted, and during the pre-action correspondence, the Home Office agreed to reconsider the original decision.
The new Home Office decision was (as usual) to maintain the refusal, on the basis that the child could live with his British father, and Eva could therefore be removed without breaching the rights of a British citizen to grow up here. This time Eva has been given a right of appeal, which she can exercise whilst still in the UK, but there is no legal aid for her to be represented at that appeal.
The Court of Appeal has recently accepted that such a case as Eva’s could potentially require what is known as exceptional case funding from the Legal Aid Agency, and we are seeking funding. However, the Legal Aid Agency will in all likelihood refuse funding, and will suggest that the child can live with Dad. So Eva, who has not been to college, will have to represent herself, and persuade a judge that it is in her child’s best interests to live with Mum in the UK. She will have to wait four to six months for an appeal hearing date, the hearing may be in the ‘float list’, and could be adjourned for lack of court time, and if she is successful delays at the Home Office mean a further wait of three months or more before her status documents are issued. The system creates an arduous and contorted legal process in which vulnerable members of society have no formal legal representation at appeal, and in which families are divided and children’s interests are disregarded.
Fortunately, Eva does not have any convictions. If she had received a twelve-month prison sentence for using false documents to work, as a result of the 2014 Act, she could expect to argue her appeal only from outside the UK, (having been returned to a country where she fears repercussions from her husband and his family for having run away, and with no legal aid). She would additionally have to show that the effect of her deportation on her child would be ‘unduly harsh’ in order to win her appeal. Her child would be expected to travel with her, to a country where he would not receive the specialist treatment he needs, or stay behind, in care.
What future does Eva have if successful? She will be granted thirty months leave to remain, with the ability to work, but with no recourse to public funds. Eva is unlikely to earn enough money to support herself and her child without recourse to public funds. She can seek the removal of the public funds restriction on grounds of destitution, or the welfare of her child, a further lengthy process. If Eva is accepted to need access to public funds she will by that time have approximately two years left of her leave to remain. Research suggests that granting temporary rather than indefinite leave to remain contributes to the risk of on-going mental health issues in individuals who may already be traumatised by pre-migration experience, and that children living with parents who have not been granted indefinite leave to remain can have poorer mental health themselves (see, Shakeh Momartin et al 2006).
Once Eva has her biometric residence permit, what can she expect? Private landlords are now expected to act as immigration officers and check on a person’s ‘right to rent’ before granting a tenancy (currently this only applies in the pilot area in the Midlands but is expected to be rolled out later this year). What’s your average landlord going to do? Decide it’s too much trouble to rent to anyone who has an accent or vaguely foreign name? What is going to happen to families who can’t prove a right to rent property, or without leave to remain, or those who have applied for further leave but have no decision yet? They are going to be pushed into substandard accommodation and have no tenancy protection.
A common sense interpretation of the best interests of the child and Article 8 should have led to Eva being granted leave to remain and access to the same rights as a British citizen. Instead the knee jerk refusal of an application for leave to remain, and removal of a safety net, (an ideological decision) provides no resolution. What then, is the real price of cutting migrants’ rights? The Immigration Act 2014 represents the climax of an ideological shift to a punitive immigration regime at odds with the realities of an increasingly mobile world. It punishes those with least resources, contravening individual and family rights, resulting in a legal system that is increasingly difficult to productively work within, and creating a more unequal society, with a migrant underclass.
Shakeh Momartin et al. (2006) ‘A comparison of the mental health of refugees with temporary versus permanent protection visas’, Medical Journal of Australia, 185 (7), 357-361.
Neena Acharya is a solicitor specialising in immigration and asylum law. She works at Lambeth Law Centre in South London. The Law Centre provides free legal advice and representation to those who would otherwise be unable to afford it.
Image Credit: The Houses of Parliament, London (by Neena Acharya).