Legal representatives are often unaware that their client has been transferred by the Home Office to another IRC. With consent, a visitor can inform the representative, and assist with any handover to another visitors group for assistance with finding a new representative if required, and in line with the guidance of the group.

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.

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.

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

See the section above How do I know if a solicitor is doing a good job?

Visitors are allowed to give basic or generic information to a person in detention, sometimes called signposting, without any requirement for OISC accreditation (you can find more information about OISC in Who can give immigration legal advice?). Visitors fulfil a hugely important role by contributing at this level. Unqualified or non-accredited visitors may provide general information “upon which a person can act or [signpost] a person onto an appropriate advice provider”.

Increasingly there is more and better information, including self-help information, available for people in detention, and visitors can ensure that this information gets to them. Internet access is still unreasonably restricted in detention, and prohibited in prisons, meaning that information available online may need to be made available in a hard copy and handed to a person detained under immigration, custody and prison officers, and IRC and prison libraries.

Visitors groups can also publish and distribute their own leaflets and other printed information, as this does not count as ‘advice given to an individual’. The OISC advises that all material is checked by a competent body or individual to ensure accuracy. You can check with AVID if you are not sure about this.

Advice not regulated by OISC includes advice given on actions against detention management companies, or the Home Office, in relation to conditions of detention.

The OISC appreciates the difference between advice and information. It has provided AVID with the example of a visitor who explained to a person in detention the appeal form they had to complete, as the person in question had insufficient English to complete the form. Explaining to them that they had to submit the form within 10 days, as this is stated on the form, would not constitute advice-giving in the view of the OISC, it is merely stating what is written on the form. Advice on how to complete the form, however, is different, and if an unqualified or non-accredited visitor were to do this it could constitute legal advice.

There are some grey areas. The OISC has contributed the following section to illustrate what constitutes ‘advice giving’ under OISC regulations. Even where advice is not regulated it is still important to proceed with caution and speak with your co-ordinator before giving advice in an area that you are not experienced in. Giving incorrect advice can still cause harm even if it is not legal advice and some of the examples should be referred to members of your visitor group with casework experience. You can also contact AVID for further support.

A visitor must be aware of whether or not the person detained who they are visiting has a legal advisor. If they are unrepresented, they will need a legal representative and a visitor may be able to help them to find one. It is very common for a visitor to be asked to help find a legal advisor for someone they are visiting, and visitors frequently contact AVID to express their concern about poor access to immigration advice for a person detained under immigration powers. Some AVID member organisations have successfully lobbied the Legal Aid Agency for more legal surgeries in IRCs, but it still feels like a struggle for a person detained under immigration to get advice, and this can be most hugely stressful and upsetting when removal is only days or hours away.

People detained in IRCs may seek immigration legal advice free of charge through the .

You can find out who the legal aid provider firms with an IRC contract are by checking the current rota, available from AVID or your group coordinator. You should check with your group coordinator how sign-up works locally so you are ready to offer this information to people in detention - it is usually done by making a request for a lawyer in either the library or the welfare centre. Referrals can also be made to a provider who has a contract for that centre outside of the surgeries. However, the provider can refuse instructions in this circumstance and are only obliged to take on clients seen at a surgery. Research shows that many in detention are not aware of the scheme, that it operates in all IRCs, or that the advice given will be free of charge. Visitors can help by ensuring that this is understood. You can also prepare someone with what to expect before an appointment, encouraging them to attend the appointment prepared and make sure that they ask for an appointment summary.

Solicitors firms and other advice organisations who operate under legal aid cannot give immigration advice under legal aid to someone detained in an IRC unless their firm or organisation holds an exclusive IRC contract with the LAA to do so. A firm that purports to be able to give legal aid advice but does not have an IRC contract is probably best avoided.

Those who can pay fees for private work are free to choose their own representative from any firm or other legal advice provider, they are not limited to a firm on the rota for their IRC that week. It is a good idea for a detained person to conduct their own research on the quality of a legal advisor before handing over money to them. Unfortunately, rogue solicitors or people who pass themselves off as immigration lawyers have been known to operate in detention centres, preying on the desperation of people who want to remain in the UK. Their names are generally passed around by others in detention. Typically, they ask for substantial payments in advance and then disappear.

People in detention may also seek advice from a law centre, or an accredited legal charity like Asylum Aid, Coram Children's Legal Centre, or Bail for Immigration Detainees (BID). Not for profit advisors and private firms are not restricted by the LAA’s exclusive arrangements for providing legal aid advice in IRCs and can operate in any IRC or prison.

In certain circumstances, visitors can refer to solicitor firms who specialise in human rights and public law detention cases. These firms can support people when there is reason to believe that detention is unlawful, for example because of a human rights abuse or someone is detained when they should not be (e.g. because there is no real prospect of removal). These firms are usually unable to meet the demands for their services and will often prioritise cases for existing clients or where the facts of a case are particularly egregious. You can find out more on their websites on the types of claims that they specialise in and they might be looking for cases to support a specific type of claim where they have existing public cases in that area.

If you believe that the person you are visiting is detained unlawfully, and the person has given you expressed permission, you can contact a law firm to see if they can assist that person. The best way to do this is via email, providing as much detail of the case as you can.

Visitors may be able to support a person detained under immigration powers by attending court as a McKenzie Friend. The principles set out in a number of cases before the Court of Appeal, including McKenzie v McKenzie [1970] 3 W.L.R. 4, make it clear that a person in court who is not legally represented (a litigant in person) has the right to have a reasonable assistance from a layperson, sometimes called a McKenzie Friend (“MF”).

The Lord Chief Justice of England & Wales has described McKenzie Friends as “non-lawyer assistants” who provide “reasonable assistance...to litigants-in-person (LIPs) in respect of legal proceedings”m[1].

‘Reasonable assistance’ has not been defined, but it can include:

• Providing moral support for the litigant in person

• Taking notes during a hearing on behalf of the litigant in person

• Helping to prepare case papers such as a chronology

The clerk at the courtroom or hearing room should be asked if a visitor can attend in this capacity before the hearing starts, and the judge will decide whether to grant permission or not.

With a few exceptions, bail hearings for a person detained under immigration are heard via video link. AVID member groups have in the past tried to negotiate access to video link suites for visitors who are trained as McKenzie Friends but this has proved difficult. There may be a role for supporting a person detained under immigration powers held in prisons, who are usually produced in person at FTT IAC (First Tier Tribunal, Immigration and Asylum Chamber) hearing centres. Regardless of which estate they are held in, a person detained under immigration powers are also produced in person for asylum appeal hearings and deportation hearings.

If a person is unrepresented, having someone with them in court can be a huge support and is greatly appreciated. If they have a legal representative, a Mckenzie Friend may still have a role to play with the agreement of the representative. McKenzie friends have come under greater scrutiny recently, especially in the family courts, as a result of the severe cuts to legal aid under LASPO (Legal Aid, Sentencing and Punishment of Offenders Act 2012), and the rise of McKenzie Friends who charge for their services (sometimes called Professional McKenzie Friends).

[1] Lord Chief Justice of England & Wales, (2016), ‘Reforming the courts’ approach to McKenzie Friends A Consultation’ Available at https://www.judiciary.gov.uk/wp-content/uploads/2016/02/mf-consultation-paper-feb2016-1.pdf

Visitors are often one of the first people a person in detention will complain to about their legal advisor, raising concerns of a general rather than specific nature. They may be reluctant to pursue a complaint.

The OISC will accept anecdotal or more general complaints though it cannot act upon them. Such general complaints may be taken into account as background to any subsequent investigation, or when giving consideration to renewal of registration, of an advisor or organisation. The OISC is not able to audit all accredited organisations and advisors each year, but general complaints may help them to target audits.

Things to bear in mind

It can be difficult to assess whether a problem with a legal advisor is due to the the lawyer being at fault or due to differing expectations.

As a visitor, the information you are given about the performance of a solicitor is generally second hand, and you should gather as much information as you can about the facts before taking steps that could jeopardise the client-legal representative relationship.

“Simply that a problem is real may not suggest that a complaint is the best way to deal with it. Contacting the lawyer (with the person in detention’s consent) may be necessary. The lawyer may not be able to discuss a case because of his or her duty of confidentiality; but this does not preclude a lawyer listening to a concern and, where appropriate, remedying a problem (e.g. by providing information to a person in detention, contacting them, investigating a concern in relation to their mental health).” [1]

We encourage you to speak to your group co-ordinator or to AVID if you become aware of ongoing complaints against a particular lawyer or law firm at the detention centre where you visit.

1. https://ilpa.org.uk/how-visitors-and-lawyers-may-work-together-june-2008/

If the person has a solicitor or an accredited immigration advisor, it is important that any contact between them and the visitor is constructive, and does not undermine the relationship between the representative and their detained client. Understanding each other’s distinct roles is central to being able to work in harmony for the benefit of person in detention - “A visitor who is engaged in advising or assisting a person in detention with the same matter upon which a lawyer is acting for the client risks breaking the relationship between client and lawyer.” [1]

As a visitor, your relationship with a person in detention's solicitor may be one of actively working in partnership or more often will take the form of occasional contact. A solicitor does not have an obligation to take your calls or provide you with any information on the work they are doing (or not doing) for their client. If you can provide them with support or assistance that they need, such as gathering essential information, then this will support constructive contact. Many solicitors also value the role visitors play in providing emotional, relational and signposting support that is outside of their role.

[1] ILPA, (2008), How visitors and lawyers may work together. Notes accompanying a discussion at AVID coordinators conference 2008.