Posted: 27 April 2016

An important victory for access to justice - the Supreme Court strikes down the legal aid residence test

Last week, the UK Supreme Court heard arguments from the Public Law Project (PLP) against the introduction of a residence test on legal aid, an idea introduced by the Government in 2013.

Through the test the Government wanted to limit access to free legal advice and representation so that a person must be ‘lawfully resident’ in the UK, and have been so for at least 12 months. A restriction that would apply to children and young people as well as adults.

However, the Supreme Court has now ruled that the Government did not have the power to introduce the test.

A vital safety net for vulnerable children and young people

One of the key reasons we have a system of legal aid in this country is to make sure that the poorest and most marginalised in our society can challenge the decisions which affect their lives.

It is only available to those who cannot afford to pay for legal support.

It provides a vital safety net to some of the most vulnerable children and young people across the country, helping them navigate our complex legal system. We see this need every day in our projects across the country. 

The residence test would have meant that no matter what your income, age or capacity, if you couldn’t afford a lawyer and you had not been ‘lawfully resident’ in the UK for 12 months, you wouldn’t be able to get any legal advice.

Children who are in the UK on their own (such as those how have been abandoned or estranged from their families) or children who been victims of human trafficking would be left unable to challenge unlawful treatment by a local authority, the police, the Government or another powerful body.

At The Children's Society, we often work with homeless children who are in the UK on their own and are being wrongly refused accommodation and support from a local authority.

In such cases where advocacy through our services doesn't work, children sometimes need the help of legal aid to challenge the local authority's unlawful refusal to take them into care.

The residence test would've meant many more children and young people remaining homeless, being placed at risk of exploitation and abuse.

As one practitioner supporting undocumented and destitute young people said: “I don’t know what we would have done if it was introduced as so much of our work relies on this!”

The fight goes on

This is an important victory, but it is only half the battle.

While these children will now be able to get legal aid in many circumstances, other Government limits on legal aid remain in place, and are preventing children from getting vital help with their non-asylum immigration claims. 

Last year, our report ‘Cut Off From Justice’ highlighted how several thousand separated children are already being affected by these measures, with their immigration asylum claims left in limbo because they can’t afford legal fees.

Not being able to get legal aid means many try to raise the thousands of pounds they need to pay for legal advice themselves, leaving them vulnerable to exploitation and abuse. Others are avoiding dealing with crucial legal issues altogether because they can’t get the help they need.

These issues are particularly relevant this week as parliamentarians enter the final stages of the Immigration Bill which will introduce new changes to law that will see more children placed at risk of being separated from their families or having to be removed from the UK without the benefit of legal aid to resolve their issues.

This judgement is a crucial step in the right direction, but the Government needs to urgently reconsider its decision to stop lone children from getting legal aid for immigration claims, and reinstate this support to make sure that some of the most vulnerable children in the UK have access to justice.

For more information on our work on legal aid, please contact Ilona Pinter, Policy Adviser on Child Poverty and Inequality.

By Ilona Pinter - Policy team
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