NCADC Campaigning Toolkit
If you have a good legal representative, most of the legal work on your case will be done by them. But it’s important to understand your own legal case – you will have a better sense of whether your legal representative is doing a good job, and you will know what things you and your supporters can do yourselves.
With government cuts to legal aid (see below) and the huge obstacles to obtaining good-quality, free legal advice, understanding your case is more important than ever. More and more people will be forced to represent themselves, which will severely impede migrants' access to justice. In this extreme situation, it has become essential for individuals applying for asylum or immigration status (or their supporters and communities) to have a better understanding of the system and provide legal support. The Bar Council has issued a guide to representing yourself in court. See also the toolkit section on appeals.
This Toolkit is designed to help with this, and Part Two goes through the asylum and immigration processes and what to expect. You can also ask supporters and organisations for help with this – it is not ‘giving legal advice’ (which only accredited people are allowed to do – see ‘Giving Legal Support without Giving Legal Advice’, below) to explain how the asylum and immigrations systems work, or what certain documents mean.
Know your rights at different stages of the system, and know what the options are for the stage you are at. Knowing what could come next will help you prepare.
Since April 2013, legal aid has no longer been available in England and Wales for legal advice in non-asylum immigration matters.
This means that if your immigration case is not an asylum case you cannot get legal aid advice or representation. You can no longer get legal aid, for example, for family migration cases including family reunification applications under the Refugee Convention, matters around student visas or visitor visas. If you are facing deportation, you cannot get legal aid if your cases does not have an asylum element. You cannot get legal aid even if your case involves a human rights issue, such as Article 8 (the right to family and private life).
The only exceptions to this are certain applications where there has been domestic violence , Special Immigration Appeals Commission (SIAC) proceedings and certain immigration applications for leave to enter or remain in the UK by victims of human trafficking.
There is still legal aid available for challenging immigration detention - for bail, temporary release or temporary admission (including challenges to conditions applied on release) and challenging unlawful detention. Detainees cannot get legal aid, however, for their substantive immigration cases.
In asylum support cases, legal aid is only available in cases where both accommodation and subsistence (money or pre-paid cards) are applied for. If you apply for asylum support and do not apply for accommodation (because you can live with someone else and do not want to be forced to move anywhere in the UK under their 'no choice' policy), you will not get legal aid to challenge a refusal to give you support. You will also not get legal aid (which was the situation before April 2013 as well) for representation at the First-tier Tribunal for asylum support appeals.
Currently, there is still legal aid for judicial review in all areas of law, but there are some exclusions in immigration cases. If you have had an appeal hearing or determination on the same, or substantially the same, issue within 12 months and you lost the appeal, legal aid for a judicial review will not be available. If you have appealed against a decision to remove you and you received the decision within the last 12 months, you cannot get legal aid to judicially review the attempt to remove you.
If your case would not qualify for legal aid under the current rules, there is still provision for exceptional funding, if you can show that your human rights or European Union rights would be breached if you do not have legal aid. The Government intends this to be a high threshold and envisages that only a small number of cases will get exceptional funding. See here for more information on exceptional funding.
The government has proposed even more restrictions to legal aid that would have devastating and discriminatory consequences, particularly in the area of judicial reviews.
While the legal aid changes only currently apply to England and Wales, if you are detained in Scotland or Northern Ireland you are likely to be moved to a detention centre in England prior to removal, with greatly reduced - and more restricted - legal aid provision.
See sections on What to Do If You Want to Claim Asylum and Fresh Claims for more information on what is meant by evidence. It is best to try and get evidence supporting your claim as soon as possible because evidence can take a long time to gather. The earlier you start, the earlier you will find out what problems there may be and think of ways to overcome them.
Your legal representative will usually be able to find evidence about the general situation in your country but not about your own personal situation. You will usually be the best person to gather evidence about your personal situation. If you can find any evidence to show that you, personally, would be in danger in your home country, then you should gather this and give it to your lawyer as soon as possible. Evidence that shows your claim is likely to be true will be very helpful to your case.
You may be able to obtain some assistance from organisations such as law clinics, who help people without a lawyer to prepare their cases for court. What assistance they are able to provide varies, but it can include helping you to prepare a witness statement and put together evidence for your case. Law clinics may also be able to send someone (usually a volunteer) to assist you at court. A person supporting you at court in this way is known as a ‘Mackenzie friend’. They are not legally representing you. Instead, the volunteer performs the role of giving you quiet assistance in presenting your case. They cannot answer questions for you but can assist you in making notes of what happens at the hearing, and in some cases also giving you assistance in making submissions to the court.
It is not always easy to know the answer to this. Legal aid lawyers are so busy that they can find it hard to respond to you quickly. Remember that they need time to work on your case, and constantly ringing them will not allow them to do this. But if your lawyer is very slow in getting back to you, or doesn’t explain themselves properly, you should try to get your questions answered (and find someone to help ask the questions if necessary).
It’s OK to ask your lawyer questions. If it is difficult to speak to your lawyer on the phone, then an easier way to speak to them might be to arrange an appointment.
Alternatively, you can send a letter or email. Often lawyers will find it easier to reply to these.
You should always have a copy of your documents, and anything the lawyer has submitted to the Home Office. Keep all your paperwork together in one organised file.
You should always know the last action the lawyer took: what they did, when, and when they expect a response.
Your legal representative should speak to you before and after each stage in the process of applying for leave to remain (e.g. your Home Office interviews, the decisions on your case).
Make sure your lawyer knows your contact details. If you change address or phone number, let your lawyer know as soon as possible.
Contact your lawyer any time you receive a letter from the Home Office or from the Courts and Tribunals service.
Contact your lawyer prior to any appointments with the Home Office (other than routine reporting/signing events).
Often we are contacted by people whose files have been with a solicitor for a long time and nothing is being done on their case. Find out why. Is your lawyer waiting for you to gather evidence? Has your lawyer done all they can and they are now waiting for a response from UKBA? Has your lawyer actually said they can’t do anything further on your case? This is a common problem with fresh claims: you might approach a lawyer to help you with this, but they will need evidence to submit before they can do it. You may think they are working on the fresh claim, but they are very unlikely to be doing anything on the fresh claim if you have not provided them with new evidence.
It’s vital to know whether or not you have a current application with the Home Office. If you have no leave to remain and no outstanding applications, you are at high risk of detention and deportation.
You can ask to speak to your solicitor’s supervisor for information on how to do this, or go to the OISC website.
It is illegal for anyone not accredited with OISC/LSC (the regulatory bodies of immigration advice) to give legal advice. However, there are plenty of things that a supporter, campaign group or other organisation can do that do not constitute giving legal advice.
One may be to look for objective evidence on your country of origin or particular situation (see ‘Fresh Claims’).
Another may be to explain the asylum and immigration system, using resources such as this Toolkit; the Rights of Women handbook, Seeking Refuge; or personal/professional experience.
Make sure the person explaining the system has accurate, up-to-date knowledge of the system. Giving the wrong information is worse than giving no information.
A useful action can be to explain or translate legal documents. The documents you receive refusing your asylum/immigration application, or your court judgment, are often long and complicated. If a campaign group can be trained in how to read these documents, and what to look out for, they may be able to give general assistance without giving legal advice.
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