The right to access to justice

As part of the Labour party’s 2024 election pledges on immigration, it set the target of increasing and ‘fast tracking’ the returns of people who have no legal status in the UK. By its own metrics, it has already delivered on its policy pledge, increasing returns by 16% compared to 2023, with over 2,061 forced removals taking place since July 2024, with the government sharing its recent success of organising the three largest removal flights in UK history, which collectively removed 629 people in August 2024.  

However, the government's pledge to enforce returns at unprecedented rates also raises questions of the rights of the people removed as part of this process, and to what extent they are able to access adequate legal advice ahead of any removal action.  

Despite a recent increase of 10% for immigration legal aid fees, the immigration and asylum legal sector remains chronically underfunded and unable to meet demand. Research from 2023 found that 51% of those seeking asylum in the UK were unable to find a legal aid lawyer, Public Law Project describes individuals in need of immigration and asylum legal aid as “adrift in an ocean of unmet need”.   

This context of policy pledges to increase removals, matched with an underfunded and overstretched advice sector, has forced migrants' rights groups to demand further change, not only from a funding and capacity perspective to ensure access to justice, but also to drastically alter the legal landscape which the Labour government inherited.   

Changing the legal landscape  

On one hand, the immigration sector welcomed the Labour government’s scrapping of the Rwanda scheme, its commitment to repeal the Illegal Migration Act 2023, which contained a draft of draconian policies with particular regards to the expansion of detention powers, and the government’s commitment to close the Bibby Stockholm barge.   

However, migrant rights groups remained concerned regarding a number of Labour immigration policy proposals and their decision not to repeal key aspects of the previous government’s immigration architecture. Chief among them is the retention of the National and Borders Act 2022’s increased standard of proof for assessing asylum claims.  

At the time of implementation, the Act was criticized by the former United Nations High Commissioner for Human Rights, Michelle Bachelet , as being ‘in contravention of international law and standards’ where the Act now requires decision makers to assess asylum claims, of those arriving after the 28 June 2022, with the civil law standard of proof on the balance of probabilities, rather than the previous ‘reasonable degree of likelihood’ standard of proof. It remains to be seen why the current government has retained such a radical overhaul of the UK immigration system, which undermines the right to claim asylum.   

In addition, despite the government scrapping the Rwanda scheme, the Prime Minister indicated during the July 2024 European Political Community Summit that he is open to processing asylum seekers offshore, noting that there is interest in how the agreement for offshoring between Albania and Italy might work.  

However, four months later, in November 2024, following a European Court of Justice ruling, Italian judges ruled that the agreement between Italy and Albania to detain up to 36,000 people a year and process their asylum claims in Albania was unlawful on human rights grounds. Similar to the retention of the Nationality and Borders Act, it remains unclear how the current government reviews current and prospective immigration legislation when clear evidence of human rights breaches are present in current, and proposed policies.   

Immigration and asylum sector, rights groups policy demands  

In a September 2024 joint briefing from 71 immigration and asylum organisations, the need for legal aid in immigration was reiterated in a number of recommendations:  

1. End ‘legal aid deserts’ (areas with a lack of legal aid provision) where people with low incomes struggle to access legal advice and representation that they are entitled to due to by providing grants to providers within ‘advice deserts’ to encourage them to remain in the sector and ensure that people in that area can still access legal aid when they need it.
2. Restore the scope of legal aid to where it was pre-LASPO 2012, to cover all non-asylum immigration work.  
3. Adjust the means threshold for accessing legal aid so that those who cannot afford to pay can access publicly funded legal advice.  
4. Meaningful consultation: Immigration, asylum and legal aid law and policy changes should only be introduced after meaningful consultation with those concerned, including the legal aid sector.  

Despite the increase in immigration legal aid fees, it is apparent that an acute access to justice crisis remains present in the immigration and asylum sector. Coupled with a challenging legal landscape, and policy pledges to fast track the return of migrants to their country of origin, the need for increased funding to the sector, as well as campaigns to centre human rights in immigration and asylum policy, is clear.