Until last week, a migrants locked up in immigration detention centres around the UK faced a further threat to their basic rights. Already deprived of their liberty for an indefinite period, they faced losing their access to justice. The Ministry of Justice’s proposed destruction of legal aid would have prevented migrants from accessing lawyers to challenge their detention. Refused asylum-seekers with new evidence would have been deprived of a lawyer to help reopen their case. Detained indefinitely, often for years, they would have had no lawyer to do any of the things that could get them out.
Government rhetoric offered little hope. Presented with evidence that the changes would cost, not save, money, Minister of Justice Chris Grayling claimed that they were “ideological” – he believed that these people should not have access to legal aid, regardless of the costs.
Nevertheless, political pressure was growing. Two demonstrations outside the Ministry of Justice and the Old Bailey called on the government to change tack. The Ministry of Justice received 16,000 responses to its consultation, the overwhelming majority opposed. While the parallel changes to criminal legal aid commanded the most attention, there was mounting concern at the changes to civil legal aid. A series of Parliamentarians spoke out about the impact on migrants in detention, including former Lord Chancellor Derry Irvine, who claimed that the proposals would “take a wrecking ball to the rule of law” and “set the government above the law in several areas, including immigration detention.”
For once, those of us campaigning on detention found that we were talking about a mainstream issue.
Last week, the Ministry of Justice published its response to the consultation. It has refused to abandon the residence test, which would exclude everyone not legally resident in the UK from legal aid. However, a series of exceptions will cover the majority of occasions that irregular migrants actually need legal aid. Challenges to detention, including bail and unlawful detention, and fresh asylum claims will now remain eligible for legal aid.
The legal aid proposals remain enormously problematic. But these concessions are huge for people in detention. We could have faced a situation where hardly anyone in detention has a lawyer. Instead, the majority will still have lawyers.
When public and political debate focuses on vilifying unwanted migrants, it is easy to feel that campaigning for their rights is hopeless. When solid majorities of the public want irregular migrants all deported immediately, what influence do we have? The legal aid concessions, partial as they are, show the value of campaigning even for the most unpopular causes. Coordinated campaigning, with strong arguments, evidence, the voices of people affected, and alliances across civil society, can still defeat some of the most noxious threats to British justice.