Individuals detained in an Immigration Removal Centre (IRC) 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. SM claims this constitutes unjustified discrimination under articles 2, 3, 5 and 8 read with article 14 ECHR. On 29 June 2020 the High Court granted SM permission to apply for judicial review, noting the claim raised an issue of wider importance. Bail for Immigration Detainees have intervened and made detailed written submissions and evidence in support of the claim.
On 24 September 2020, in open correspondence, the Lord Chancellor ‘identified a need to review the differences in the way that provision of legal aid to immigration detainees in IRCs and prisons is administered’. The review aims ‘to identify the best way to provide equal access to high quality specialist immigration advice to immigration detainees in both prisons and non-prison detention locations’. To do so, the Lord Chancellor intends to engage with bodies which represent the legal sector, NGOs and government stakeholders.
Despite acknowledging a need to review current arrangements, the Lord Chancellor continues to argue any differential treatment is justified, but - clearly concerned about whether the court will agree – he has applied to stay the case pending the outcome of the review. Although the Claimant welcomes the review, it does not answer SM’s claim, there is no firm commitment to improve access to legal aid in prison, and there is no concrete time frame for its completion.
The hearing is fixed for 25 and 26 November 2020. On 25 November the defendant's application for a stay was refused and the case proceeds.
SM is represented by Toufique Hossain, Jeremy Bloom and Jonah Mendelsohn of the public law team at Duncan Lewis Solicitors, and counsel Chris Buttler of Matrix Chambers and Ali Bandegani of Garden Court Chambers.