YLAL Leeds: Legal Aid and Domestic Violence
On 22nd July 2020, YLAL Leeds hosted the virtual event ‘Legal Aid and Domestic Violence’. Aaqib Javed, YLAL committee member and future pupil barrister at Spire Barristers, began by introducing the event and the four panellists. He outlined the event’s main focus, domestic violence, and the three main topics to be discussed: the Ministry of Justice Inquiry, the Domestic Abuse Bill, and the important issue of legal aid and access to justice..
The first speaker was Zehrah Hasan, a Pupil Barrister at Garden Court Chambers who has built a practice in public law, human rights and asylum law. She outlined her focus for the event: access to justice for migrant woman, demonstrated with reference to the Domestic Violence Rule (DV Rule) and the Destitute Domestic Violence Concession (DDVC).
ZH began by highlighting how migrant women are prevented from accessing safety through the DV Rule and DDVC by the spousal visa requirement. The multiple barriers which women who can access the DV Rule and DDVC were also highlighted, including the low-means threshold, increasingly costly application fees, and stringent criteria requiring extensive documentation. ZH explored the link between the rise in DV Rule application refusals and the government’s hostile agenda, and noted the inability of migrant women since 2015 to appeal refusals to the First-Tier Immigration Tribunal.
Secondly, she examined the legal and policy routes which have been, and could be, explored to try and widen access to safety for migrant women. With regards to non-spousal cases, she discussed two contrasting test cases brought by Southall Black Sisters (SBS) which sought to expand the remit of the DDVC for migrant women: C v Secretary of State for the Home Department, and T v Secretary of State for the Home Department. Another recent 2018 case, FA (Sudan) v Secretary of State for the Home Department, was discussed for its unsatisfactory analysis and outcome.
ZH concluded by stating that there is scope to challenge the limited nature of the DV Rule and DDVC mechanisms. This can be achieved via legal routes, by constructing an accepted argument that a survivor on a non-spousal visa equally fears leaving their spouse for fear of loss of immigration status. Alternatively, this can be achieved by campaigning to widen the scope of the DV Rule and DDVC within the Domestic Abuse Bill, as both mechanisms as they currently stand are in breach of the Istanbul Convention.
The second speaker was Cris McCurley, a Partner and Solicitor at Ben Hoare Bell LLP has previously campaigned at the UN in an effort to change domestic UK policy. CM outlined the focus of her talk, namely the campaigns she has been involved in on widening the scope of access to legal aid following LASPO 2012, and the changes needed within the Family Courts.
CM began by discussing the promises made by the government prior to the enactment of LASPO 2012 to protect legal aid for survivors, and contrasted this with the tone-deaf realities of a post-LASPO state. CM explored the activism which ensued, including the case made against the UK government at the UN in 2013, and the working group which was set up following this event. CM noted that progress has been “glacially slow”, but that small wins have been made. CM then examined the pandemic’s effect on domestic abuse cases, noting the drastic increase in domestic homicides, and the resulting increase in demand for services.
CM then detailed a “big win” for campaigners, the publication of the Report from the Ministry of Justice on Harm in the Family Courts, which recognises the government’s minimisation of the experience of survivors through repeated cuts which have left a protection-gap within the system. CM cited a report called ’19 Homicides’ which reviewed cases where children were killed by their abusive parent after court-endorsed contact; CM then detailed the case of Claire Throssell to exemplify the systemic flaws apparent in the UK’s “creaking system”. CM called for a system which addresses cases in a “trauma-informed way”, before detailing the four overreaching barriers to the Family Courts responding consistently to domestic abuse cases as cited in the Ministry of Justice’s report. CM concluded by recognising that hope exists following the publication of this report, and called on the younger generation of legal aid lawyers to take up the baton.
The next speaker was Pragna Patel, Founder and Director of Southall Black Sisters (SBS). PP outlined her focus for the talk: the Domestic Abuse Bill. PP began by stating that the Bill’s failure to include migrant women in the ambit of state protection, coupled with other current crises, point towards widening economic and racial inequalities exacerbated by government policies which are ideologically tied to immigration enforcement. The true meaning of ‘access to justice’ was also discussed.
PP then highlighted what she believes was achieved by the Bill. Namely, the introduction of an extensive statutory definition of domestic abuse, the inclusion of a provision on extra-territorial jurisdiction, and the imposition of a statutory obligation on authorities to provide support and shelter to survivors. PP contrasted this with how the Bill falls short, such as by its lack of a gendered definition of abuse, and the apparent protection gap it leaves in inadequately providing women and children with legal aid.
PP stated that her focus is on the absence of protection for migrant women, noting that the majority of women who work with SBS have an insecure immigration status; she detailed the situation migrant women with no recourse to public funds find themselves in. PP then noted the “uphill task” frontline service providers face in protecting these women, which has only been worsened in the current healthcare crisis, and the work SBS has done to plug this protection gap. PP criticised the government’s unchanging agenda, its inappropriate response to pushes to reform the system, and the clash between the legitimate expectations of the government and those of survivors. PP ended by drawing parallels with how the government has reacted to protect its citizens during the current crisis, and how this hopefully will become the “new normal” in the government’s approach in all sectors across the board.
The final speaker was Katy Watts, a Solicitor and Former Justice First Fellow. KW began by outlining the effect of LASPO on legal aid; she noted that despite campaigners successfully widening the evidential criteria necessary to access legal aid, great difficulties still lie in achieving financial eligibility. KW then explored the ‘trapped capital problem’ and how this affects the ability of women to successfully secure legal aid.
KW then gave details of a case in which she is a representative, GR, which seeks to challenge the way in which the legal aid agency carries out its assessments. KW emphasised the importance of campaigning and collaborative work in bringing these cases forward and explained the arguments/grounds used to build her client’s case. At the time of the event, the judgment had not been published.
Aaqib concluded the event by drawing attention to the summer festival which YLAL is hosting from the 10th – 21st August.
We are very grateful to YLAL member Electra Doyle for this write-up. If you’d like to volunteer to write up a future YLAL event, email ylalinfo@gmail.com.