OPINION: Courts backlog not caused by immigration cases 'clogging up legal process'

Audrey Ludwig of Ipswich & Suffolk for Racial Equality

Lawyer Audrey Ludwig, who is a director of legal services for the Suffolk Law Centre, a legal charity to help those who cannot afford private lawyers - Credit: Archant

In his latest EADT and Ipswich Star column, Ipswich MP Tom Hunt seeks to link the backlog in the courts system - particularly acute in crime but also true in civil areas like employment and family - with the use of immigration appeals and a particular type of judicial review called a Cart Judicial Review.

His position seems to be if we stop appeals and/or judicial review in immigration cases, the problems in other parts of the system will be eased.  

This sounded unlikely but I thought I would do the research. 

I know that courts, judges and lawyers practicing different areas of law (like the difference between criminal and civil) are not interchangeable so you cannot just stop one thing and rebrand as another.  

Spending by the Ministry of Justice on all elements of justice has been decimated in the last decade. The MoJ budget fell by 25% between 2010/11 and 2019/20.

The consequences meant, for example, between 2010/11 and 2019/20, criminal legal aid expenditure fell by over a third (35%) in real terms.  In 2019/20, criminal legal aid spending was around £897 million, compared with around £1.4 billion in 2010/11. These cuts have cause court closures, loss of court sitting days, loss of legal aid practitioners and greatly increase backlog. 

However, I am not an immigration lawyer, so I sought out others who are to better understand whether there was any merit in what Mr Hunt was claiming. 

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I spoke with various working practitioners and CJ McKinney the editor of Free Movement, the authoritative online information source for immigration legal practitioners.  

I learned that Channel crossings are dangerous but the whole point of the Refugee Convention set up after the Second World War was to protect people making illegal journeys to claim asylum.

A clear majority of people who claim asylum in the UK (which everyone who crosses by boat does) are accepted as genuine refugees. Previous clampdown on immigration appeals mean that they have fallen 87% in the last decade or so (206,000 in 2008/09 to 26,000 in 2020/21). Almost 50% of asylum appeals succeed - they are an integral part of the decision-making process.  

The Cart Judicial Reviews are the fail-safe; the 3% success rate has been challenged by academics who put it at more than twice that, and scrapping them will save just £2.6m over ten years.  

Now, perhaps the public will think that a lot of money but it is peanuts in the grand scheme of things and certainly not an amount that would make any discernible difference to the criminal court crisis. The recent Spending Review includes £477 million to reduce the Crown Court trial backlog from 60,000 to 53,000. Trying to conflate the two issues is risible.

There are serious problems with the immigration system, such as unbelievable decision-making delays at the Home Office, but Cart Judicial Reviews are just a total side issue. 

Adam Wagner, a leading barrister in this field, reported on Twitter that deportations were primarily cancelled due to a Covid outbreak at the Colnbrook Detention Centre, prompted by the Home Office not following its own Covid safety policy.  

He stated: “In a large number of cases I dealt with people were detained a few days before their flight even though the policy requires any new arrivals at the detention centre to be isolated for 14 days, meaning they couldn’t ever have been removed”. 

The mere fact that these deportations were stopped by judges shows that the Home Office could not justify them in court.  

Removing any appeals process is just as likely to cause injustice (as we saw in the Windrush Scandal). 

I also learned Cart JRs are mostly used in immigration cases but not exclusively (so it is also factually inaccurate to say that immigration cases are "treated so differently").” 

So why are these court applications last minute? The policies of the Home Office and MoJ combined also mean those at risk of deportation are, in many cases, unable to even access early legal advice.

For example, there isn’t a single Legal Aid immigration lawyer in Suffolk and Norfolk, and too few in the whole country (due to cuts to Legal Aid eligibility) making getting meaningful advice until just before deportation almost inevitable.

It is in the Government’s own power to rectify this. 

Mr Hunt should talk to people in his own town who regularly use the court services and find out why and how to rectify. I am available to talk and I know a lot of experts.  

Better still, perhaps Mr Hunt would be advised to lobby his neighbour James Cartlidge, the MP for South Suffolk and the Parliamentary Under Secretary of State at the MoJ to sort out these systemic issues once and for all?  

Audrey Ludwig is a practising lawyer and the director of legal services at the Suffolk Law Centre. This article is written in a personal capacity. 

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