Lack of access to lawyers for immigration detainees being held in prison is unlawful, High Court rules

The legal aid provision for immigration detainees held in prisons is unlawful, the High Court has ruled, after it emerged a man was unable to access a lawyer for 10 months and had to represent himself.

The claimant challenged the legal aid arrangements for immigration detainees held in prisons on the basis that they are less favourable than those in place for people held in immigration removal centres.

Non-British nationals who are sentenced to jail for longer than 12 months in the UK are liable to be deported, and can be detained under immigration powers at the end of their custodial sentence pending their removal from the country.

Such individuals are usually transferred to an immigration removal centre, where conditions are less restrictive and they have better access to legal advice. However, since the start of the pandemic, the Home Office has sought to hold fewer people in removal centres for Covid-19 safety reasons, placing many in prisons instead.

Official data published on Thursday shows the number of people detained in prisons under immigration powers stood at 519 at the end of 2020, an increase of 45 per cent on the previous year.

Individuals detained in removal centres have access to an advice surgery that guarantees access to 30 minutes’ legal advice regardless of means or merit. Those detained under immigration powers in a prison do not.

In a landmark judgement, Mr Justice Swift ruled that the Lord Chancellor had breached the claimant’s right not to be discriminated against under human rights law.

Concluding the ruling, he said: “The failure to afford immigration detainees held in prisons access to publicly-funded legal advice to an extent equivalent to that available to immigration detainees held in immigration removal centres, is in breach of convention rights.”

The judgment means the government will be required to remedy the situation to ensure that people in immigration detention are able to access publicly funded immigration advice, and could in the meantime pave the way for others to legally challenge their inability to obtain legal advice while in prison.

The claimant, represented by Duncan Lewis Solicitors, was detained in prison and was unable to access a legal aid lawyer for nine and a half months. During this time, he represented himself in his asylum claim with dire consequences, and was unable to successfully challenge the lawfulness of his detention.

Jeremy Bloom, the claimant’s solicitor, said he hoped the ruling would lead to better access among immigration detainees held in in prisons to legally aided immigration and asylum representation, adding that it was currently “impossible” for many such individuals to secure legal aid.

“The current arrangements are not fit for purpose; they obstruct access to legal aid for some of the most vulnerable individuals and prevent them from effectively challenging the lawfulness of their detention and from advancing their asylum and human rights claims,” he added.

Pierre Makhlouf, assistant director for Bail for Immigration Detainees, a charity that intervened in the case, said people in prisons were “consistently disadvantaged when accessing justice”.

He continued: “Immigration detainees in prisons often face deportation and permanent separation from their families, children and the communities where they have grown up, causing real suffering to many.

“Access to legal advice and representation in these circumstances is essential to assist people to put forward their claims to remain in the UK, and indeed so that they can apply for bail to be released from detention.”

A Ministry of Justice spokesperson said: “We have started a review of legal aid provision for immigration detainees, and will carefully consider the High Court’s judgment.”