Finding a legal advisor for a person detained under immigration powers in the prison estate

There are no LAA immigration advice surgeries operating in prisons unlike in IRCs, even in those prisons holding a large number of a people detained under immigration powers or those prisons that are solely for “foreign nationals”.

In February 2021 in the case of SM v Lord Chancellor the High Court found the lack of immigration legal advice in prisons to be unlawful. In response to the judgement, on 1st November 2021 the Legal Aid Agency amended the legal aid contract to provide a legal advice service for all people detained under immigration powers held in prison, where they can access 30 minutes of advice without reference to their financial eligibility.

How this is supposed to work is the detained person calls a law firm with a legal aid contract, explains they are being held in prison under immigration powers and arrangements can be made for that person to receive 30 minutes free legal advice.

• A list of legal aid providers should be made available by the prison. A list of all legal aid lawyers (in England and Wales is available here on this flyer from Migrants Organise.)

The reality is that people still struggle to find representation. A report by BID on the issue found “Overall very few people have been successful in contacting immigration legal aid solicitors under the scheme, and only 11% of participants said they received 30 minutes' immigration advice. People stated that it is virtually impossible to get any assistance with immigration advice from within prison without assistance provided by people they are connected to outside of the prison, such as friends or family. Officers were described as unhelpful or uncaring, or were seen to be discriminating against foreign nationals. All these problems are exacerbated for those who do not speak English." [1]

If you are helping a person detained in prison to find a legal aid immigration solicitor, you should first call the firm or organisation and ask if they have a legal aid contract and arrange the 30 minutes free legal advice accordingly.

People detained in the prison estate are highly likely to be facing deportation action. Don’t forget that legal work on deportation appeals is no longer automatically covered by legal aid unless that person is claiming they will be hurt or killed in their country of origin. It is therefore likely that that an application for Exceptional Case Funding will be needed. Otherwise, unless pro bono advice is available for a deportation appeal, the person you visit must be able to find the fees, perhaps with help from family or friends.

Resource tip A how-to guide for people making their own application for Exceptional Case Funding, Bail for Immigration Detainees, (2016), Exceptional Funding: Applying for Legal Aid in Deportation Cases - A Guide for Individuals. Available at: https://hubble-live-assets.s3.amazonaws.com/biduk/redactor2_assets/files/565/1707_Exceptional_Funding-_Applying_for_Legal_Aid_in_Deportation_Cases.pdf

Anyone detained in a prison will face additional barriers to communicate with their solicitor, the courts, bail sureties or witnesses, and may only be able to send faxes or copy documents at the discretion of a prison officer. Meeting deadlines for appeals and lodging applications, including bail applications, can be extremely difficult. Visitors may be able to help with these activities if the local arrangement with the prison allows for it.

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[1] https://hubble-live-assets.s3.amazonaws.com/biduk/file_asset/file/635/BiD_Prisons_Report_page_1__1_.pdf