Residence test proposal ‘unlawful and unworkable’

Jamie Doward, The Observer

Abandoned migrant and trafficked children will be left destitute and at risk of exploitation if the government goes ahead with a plan to introduce residency tests to determine whether they qualify for legal aid, child protection experts are warning.

The plan places further scrutiny on benefit guidelines in the UK. The European commission last week alleged that the UK's use of residency tests to determine whether European Union migrants can claim benefits is a breach of EU law.

Now children's charities fear that new residency measures for legal aid will leave many vulnerable young people without basic legal protection.

Legal aid is currently awarded to anyone who can prove that they cannot afford to pay for legal representation or advice, providing that their case is considered to have sufficient merit.

To qualify for legal aid under the new proposals, applicants will need to be lawfully resident in the UK and to have lived in the country continuously for at least 12 months at some stage in their life. Many migrant children will not meet these criteria, according to the Children's Society.

The charity says asylum seekers who have exhausted their appeal rights but cannot return home, because it is too dangerous or because they lack the necessary documents, and migrant children abandoned by their carers would be denied legal assistance.

Others who will no longer be eligible to access legal aid include child victims of trafficking whose ages are disputed and are refused support. Without access to legal aid to challenge local authorities' decisions to treat them as adults, they will be at risk of homelessness, the society claims.Migrant children who have been living in private fostering arrangements and exploited as domestic servants would also be left vulnerable, according to the charity.

Children who were granted refugee status will have to wait a further 12 months before they can access legal aid, raising the prospect that they will be left destitute.

"Many children who have been abandoned, trafficked into sexual exploitation or forced labour … will be left without a voice and right of redress," said Matthew Reed, the Children's Society chief executive. "They will be prevented from challenging decisions and denied their basic rights to help and protection."

The reforms proposed by the government will affect access to all categories of legal aid, including challenging unlawful decisions by government agencies on housing, community care, education and unlawful detention.

The Children's Society said it works with 1,500 refugee and vulnerable migrant children a year and that the "vast majority" of them need legal aid.

The Children's Society gave what it said was a typical example of a young person who would be at risk from the proposed changes. "Peter", a Kurd who came to the UK alone from Iran to seek protection, had his asylum claim rejected before his 18th birthday. Six months later social services stopped his support and told him to return to his country. However, as he was an Iranian national there was no lawful way for him to obtain documentation, since Iran has no embassy in the UK. Left homeless for nine months, he experienced violence on the streets and tried to take his life. Only after he was given access to a legal aid lawyer was Peter able to challenge his local authority and be rehoused.

A Ministry of Justice spokesman said: "We have to make difficult decisions about prioritising legal aid. Resources are not limitless, and we must ensure we get best value for the taxpayer so the public can have confidence in how we spend money."