The Cost of Covid: Rights and Justice in the Immigration System
Hint - complex terms in bold and blue have definitions, just click on them to see the legal meaning!
The COVID-19 pandemic and lockdown have impacted everyone in the UK over the last 12 months, but it has not impacted everyone equally. Perhaps nowhere is this more apparent than in the situation facing many people who have migrated to the UK. Migrants are disproportionately impacted by the virus; many migrants are of BAME background, are more likely to have higher-risk jobs, to live in poorer areas and overcrowded households. Many then face a further layer of disadvantage due to their immigration status.
Unlike the rest of the country, many migrants who have seen their jobs disappear, or their incomes cut, do not have a safety net to fall back on. This is because of a condition known as No Recourse to Public Funds (NRPF), which prevents them from accessing most welfare benefits and housing support. It has led to unprecedented levels of poverty being experienced by families across the UK. Others have been left wondering how they will afford expensive visa application fees, or whether they will be able to meet the minimum income requirements for certain types of visas after losing their jobs.
Immigration detentions and removals have continued despite bans on international travel, whilst visa processing, asylum applications and appeals were all suspended at the start of the lockdown, leaving people in limbo and facing huge delays. Thus, the need for advice and representation within the field of immigration law has never been greater, but many migrants have struggled to access justice when they have needed it the most.
Fair and unimpeded access to justice is a bedrock principle of the common law. In Daly Lord Bingham of Cornhill explained that effective access to justice comprises three distinct rights: 1) the right of access to a court 2) the right of access to legal advice 3) the right to communicate confidentially with a legal adviser. Such is the importance of these rights that they “may be curtailed only by clear and express words, and then only to the extent reasonably necessary to meet the ends which justify the curtailment.”
So what then has been the impact of the COVID-19 pandemic on these rights within the immigration legal system? We will look firstly at the impact on access to legal advice and the ability to communicate with a legal advisor confidentially, before turning to access to the courts.
An important difference between the immigration sector and other areas of law, such as commercial or property law, is that we often work with vulnerable and marginalised groups who have little or no awareness of their rights. Many of our clients are fearful and distrustful of professionals, many are deliberately prevented from accessing legal advice, for example by an abusive partner or by their trafficker. Ensuring effective access to legal advice is, therefore, not just a case of providing help to those who ask for it. It demands a more proactive approach, working within affected communities to identify and reach out to those in need.
The COVID-19 pandemic has meant an end to much of this community facing outreach work and whilst many organisations have tried their best to adapt and find creative solutions, the suspension of many frontline services and the move to remote working inevitably means that fewer victims of trafficking, domestic violence and other human rights abuses will be identified and many more people will fall through the cracks.
A further barrier faced by many of our clients is that they do not have access to computers or smartphones or a reliable internet connection. Others will have disabilities which mean they are unable to use this technology. Thus, the move to remote working risks excluding them completely. This is of particular concern to those tasked with ensuring that vulnerable EU citizens, such as the elderly, homeless or disabled (the majority of whom will face barriers to accessing advice remotely), do not miss the deadline to apply for their new ‘post-Brexit’ status and end up becoming unlawfully resident in the UK.
For those in immigration detention, the barriers to accessing legal advice are even more acute. Detention centres and prisons (where some people are held under immigration powers) are closed for the majority of visitors, including legal visits. This means that people are being detained and forcibly removed from the UK without ever having had access to a lawyer.
Even after clients have been identified, the move away from face to face to remote or ‘zoom’ appointments presents a number of other challenges, not least in terms of confidentiality. One of the problems with a remote appointment is that a lawyer cannot see who is in the room with their client and so there is a risk that a client could be being controlled or coerced by someone off-screen.
Immigration cases, particularly asylum and human rights claims concern highly sensitive and personal information. Immigration lawyers might need to take detailed instructions about their client’s sexuality or about incidents of torture or abuse. Many of our clients are homeless or ‘sofa surfing’, others live in shared Home Office or Local Authority accommodation. Most do not have a fully confidential space for remote appointments.
Many of our clients have experienced multiple traumatic events and have been diagnosed with complex mental disorders such as PTSD. Building a relationship of trust and confidence is essential so that clients can fully disclose their experiences, but this is much more difficult to do during remote appointments, which by definition, end up feeling more ‘remote.’ As lawyers, when we are taking instructions, we try to stay alert for signs that our clients are becoming distressed, a large part of this is reading body language, but this is much harder to do on a screen. Without that direct human connection, the practical and emotional support that we can provide to clients in these situations is also severely limited. In many cases, therefore, it has not been possible or safe to take detailed instructions from clients remotely and this impacts the quality of their representation.
In terms of access to the courts, at the start of the pandemic, every immigration appeal was either postponed or adjourned, leading to a huge backlog of cases. There has now been a shift to remote hearings. There are certain advantages to remote hearings, they are more cost-effective and time-efficient and the ‘live streaming’ of appeals creates greater opportunities for open justice. But they can also add a further barrier to access to justice for those already disadvantaged.
As mentioned, many of our clients face digital exclusion and due to the sensitive nature of immigration and asylum appeals, this means using public computers and WIFI connections is not normally an option. Even those clients who have the required technology may still need assistance in using it. Asylum and immigration appeals tend to involve oral testimony, from the appellant and possibly from multiple witnesses, all of whom may be cross-examined by a representative for the Home Office. The potential for miscommunication and for problems with technology and internet connections to arise is, therefore, multiplied.
It is clear that the move to remote ways of working and the digitisation of our courts and tribunals presents a huge challenge to access to justice. However, the principle of ensuring fair and unimpeded access to justice would also not be served by simply allowing the immigration legal system to grind to a halt. We do have to adapt and find pragmatic solutions to enable the continued operation of the justice system, but it is very important that the desire to outsource and to cut costs does not lead to these changes becoming permanent, otherwise, for vulnerable and marginalised groups, remote justice will mean justice becoming more remote.
Written by Ruth Budge
What do the terms mean?
Migrants - A legal term for someone who is born elsewhere, has citizenship for another country or has moved to a new country temporarily
Immigration status - This is the ‘kind’ of permission you have to be in a country, everyone has one!
No Recourse to Public Funds - This is a legal term that means that a person does not have the right to access public help such as welfare benefits — income support, housing benefit, etc.
Visa - This is a legal document that allows you to enter another country, for example, you might get a visa to study in another country.
Asylum Applications - When people are fleeing their home country for fear of persecution they might ‘seek asylum in another country, which is where they ask for protection in another country. For more information on this topic, see our article here.
Common Law - Common law is a type of law in the UK that is created by judges, not parliament. Every time a senior court makes a decision, lower courts have to follow that decision.
Trafficker - Someone who deals and trades in illegal items, in this case, people.
Taking Instructions - This is a legal term for when legal professionals get information and instructions from their clients. With instructions, they can know what their client wants and have the information they need to carry out work.
Appellant - The person making an application in law. The other side is often known as the defendant.
Cross Examined - This is where the other side in proceedings get to question a witness about their testimony. To find out more about cross-examination and other evidence, see our article here.
References:
Daly - R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532
Post-Brexit Status - EU, EEA and Swiss citizens and their family members have until 30 June 2021 to make an application under the EU Settlement Scheme.