Legal Aid for EEA and Swiss nationals

Immigration and Social Security Co-ordination (EU Withdrawal) Bill – in a Public Bill Committee at 3:00 pm on 16th June 2020.

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‘(1) The Legal Aid, Sentencing and Punishment of Offenders Act 2012 is amended in accordance with subsection (2).

(2) In Schedule 1, paragraph 30, after sub-paragraph (d), insert—

“(e) the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020.”’—

This new clause would allow individuals to seek legal aid in order to obtain advice on the right to enter and remain under this Act.

Brought up, and read the First time.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Immigration, Asylum and Border Control), Shadow SNP Spokesperson (Attorney General)

I beg to move, That the clause be read a Second time.

The Bill, in combination with others that have gone before, removes from some people the right to be in this country, and requires them to apply for rights under the EU settlement scheme. As hon. Members know, I object to that approach, but I acknowledge that, for the vast majority of people, it will thankfully be a fairly straightforward matter and there will be no need for legal advice. As we have seen, the scheme has reached a good number of people so far. We have also seen that these issues can be complicated. It can be complicated for someone to know whether they are required to apply or whether they have the right to be here as a UK citizen or through some form of migration status. For some, proving the right to be here in order to get settled status can be tricky, and advice will be needed on the type of evidence required or whether, for example, an old criminal conviction brings a risk in applying.

In Scotland, some will be able to get advice and assistance funding from the Scottish Legal Aid Board in order to seek some support on these issues, subject to a means test, but it is not the same in England and Wales. We have to learn the lessons of history: restrictions on access to legal aid were a contributing factor to the Windrush scandal. In itself, it would not cost much money to allow some basic legal advice to be handed out to those who need it. I very much hope the Government will consider this proposal seriously and put right the absence of legal aid.

Photo of Holly Lynch Holly Lynch Shadow Minister (Home Office)

We very much support the right to access to justice for all, and legal aid is an essential component of that, so we support new clause 14. Cuts to legal aid have been disastrous for access to justice. Time and time again, we have seen that it is the most vulnerable who suffer. Huge swathes of areas of law were deemed out of scope by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Most evidence now suggests that there have been few or no cost savings to the Ministry of Justice from taking those areas of law out of scope, especially in relation to early advice.

When those representing themselves try to navigate complex areas of law without representation, cases are often longer and precarious, and thus more costly to the taxpayer. Indeed, the Williams review found that the withdrawal of legal aid contributed significantly to the problems faced by the Windrush victims. We do not want anyone else to be in a similar position when free movement comes to an end. We therefore support new clause 14.

Photo of Kevin Foster Kevin Foster The Parliamentary Under-Secretary of State for the Home Department

I thank hon. Members for their contributions. The legal aid scheme is designed to target legal aid funding at those who need it most. Legal aid is available for the most serious cases to ensure and maintain access to justice while delivering value for money for taxpayers. The Bill itself does not provide a right to enter or remain for EEA citizens, and the new clause would bring issues relating to the end of free movement, such as applications under the EU settlement scheme, into scope for legal aid.

The EU settlement scheme has deliberately been designed to be streamlined and user-friendly. The majority of applicants will be able to apply without the need for advice from a lawyer. However, we recognise that there will be some vulnerable individuals who may need support in using the scheme, and we have put in place safeguards to ensure that the scheme is accessible to all.

The Government have always been clear that publicly funded immigration legal advice is available to some particularly vulnerable individuals. Individuals who are claiming asylum, those identified as potential victims of modern slavery or human trafficking, separated migrant children and victims of domestic violence are eligible for legal aid funding for immigration legal advice, subject to statutory means and merits tests.

Furthermore, legal aid may be available through the exceptional case funding scheme, subject to the relevant criteria being met. The Government are working to simplify the exceptional case funding process and improve the timeliness of funding decisions, to ensure that those who need legal aid funding can access it when they need it.

Given the specific design for EU settlement schemes to be simple and accessible, evidenced by the sheer number of applications already made and concluded, plus legal aid being already available, whether in scope or via exceptional case funding where the relevant criteria are met, an attempt to widen the scope of legal aid funding for certain groups of individuals, as proposed through the new clause, goes against the spirit and intention of the legal aid scheme. For these reasons, the Government cannot accept the new clause.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Immigration, Asylum and Border Control), Shadow SNP Spokesperson (Attorney General) 3:15 pm, 16th June 2020

I am grateful to the Minister for his explanation. By reassuring us how simple the scheme is, which it is for the vast majority of people, he also makes the case that this will not cost a great deal of money. Only a very small number of people will require legal advice, but there will be some significant issues that they will need to work through. This is fundamentally about the rule of law, which the Westminster Parliament has lost sight of in relation to how important legal aid is. For that reason, I will stick to my guns and press the new clause to a vote.

Question put, That the clause be read a Second time.

Division number 14 Immigration and Social Security Co-ordination (EU Withdrawal) Bill — Legal Aid for EEA and Swiss nationals

Aye: 7 MPs

No: 8 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Committee divided: Ayes 7, Noes 8.

Question accordingly negatived.