Update: Litigation Friends and Mental Capacity

People with complex mental health conditions should not navigate the system alone. In these cases, a ‘Litigation friend’ should be available. This is why we are pleased that the Ministry of Justice have now confirmed that they will appoint a ‘Litigation Friend’ to those who need it. This is a step in the right direction.
In this blog our legal organiser, Brian Dikoff, explains more about our work in organising for justice with people who have complex mental health conditions. 
A full legal briefing on this matter can be accessed here.

Mental Capacity and the Immigration and Asylum system

Adults with severe mental health issues receive little support navigating the immigration and asylum system even though they may lack the mental capacity to do so. This is made even more alarming when considering that people seeking asylum are five times more likely to have mental health needs than the general population, and more than 61% will experience serious mental health distress.  

At Migrants Organise – through our Migrants Mental Capacity Advocacy (MMCA) project- we provide direct support to people who have complex mental health conditions; from Post Traumatic Stress Disorder owing to experiences back home and their treatment in the asylum system here to other conditions like schizophrenia, dementia or a learning disability. 

The confusing and maze-like nature of our immigration system does not make it easy for people to navigate, let alone if people need extra support. This includes the independent ‘immigration tribunal system’ where people can challenge Home Office’s decisions.

As a result, many are unable to regularise their status and face the full brunt of the hostile environment- from destitution to deportation. This is why the role of “Litigation Friend” is so important at immigration appeal and tribunal process stage. 

Litigation Friend

When the Home Office refuses a person’s application for a leave to remain as a refugee or because of their human rights,  they might be able to challenge this by appealing ( or “litigating”) to the immigration tribunal. People with mental health conditions might struggle to understand this process and lack the requisite mental capacity to litigate. This is where a Litigation Friend comes in. 

A Litigation Friend is  someone who can make litigation decisions on behalf of someone who lacks mental capacity to do so. A Litigation Friend might be someone’s  parent, friend or family member who instructs  their lawyers and ensure that they put the best case forward in the tribunal

However,  all too often our community members have no one to act on their behalf. They are alone. Solicitors are unable to make decisions on behalf of their clients without their “capacitious instructions” – so they are unable to access the independent tribunals and get their case determined fairly. This is particularly pertinent when considering that half of all appeals are successful. 

The role of the Ministry of Justice and the ‘Office of the Official Solicitor’

In other court jurisdictions, such as the High Court or Court of Protection, the ‘Office of the Official Solicitor’ typically can step in as a ‘Litigation Friend of last resort’. The ‘Office of the Official Solicitor’ is funded by the Ministry of Justice.

Unfortunately, it has been Migrants Organise’s experience that the Official Solicitor has routinely been refusing to act in the tribunal system including the immigration tribunal. This has resulted in delays and deadlocks.  

In one case, our member’s hearing had to be adjourned more than a year due to a lack of litigation friend. Our member was an European Economic Area (EEA) national with cognitive deficits. The Home Office had tried to revoke his status, a decision which was challenged in the tribunal. However, his case could not proceed as our member lacked litigation capacity and there was no one to act in as his litigation friend. In the intervening time, our member’s benefits were stopped and he accrued rent arrears of more than ten thousand pounds. When we started working with him, he was at the brink of street homelessness. 

We demand change

Over the past 6 years under our Migrants Mental Capacity Advocacy (MMCA) project, Migrants Organise has been assisting people who lack the requisite mental capacity to make decisions in their immigration appeal and does not have anyone who would be able to act on their behalf. 

Through our work we established a  network of 25 legal and  welfare professionals who can step in as litigation friends of last resort. (You can read more here)

But this isn’t a systemic solution and we have been clear that the government needs to provide a long term sustainable solution to this important issue to ensure fair access to the courts for vulnerable and disabled individuals. 

In August this year, with help from Wilsons Solicitors LLP and Alasdair Mackenzie and Sophy Miles from Doughty Street Chambers we sent a pre-action protocol letter to the Ministry of Justice.

We are pleased that the Ministry of Justice has now responded and confirmed that the Official Solicitor will act in the immigration tribunal provided that all of their standard criteria apply. 

But our work has just begun: we will be monitoring the situation closely and holding the government to account and ensuring that all people are able to access justice. 

Join the movement 

By removing barriers to accessing “Litigation Friends”  and showing solidarity with people living with mental health conditions we are building power to fight the hostile environment while also caring for our communities. 

You can access the full legal briefing on this matter here.

Take further action with us. Donate to Migrants Organise and be part of a growing movement for migrant justice. 

Further Resources: 

Litigation Friends Legal Briefing 2022 

Supporting Migrants Lacking Mental Capacity In Relation to Immigration Matters, published November 2022 with the NRPF Network

Mental Capacity & Litigation Friends in Asylum & Human Rights Appeals, published May 2021

Without Capacity:Mental Capacity as a Barrier to Justice in the Immigration System published in January 2021

We are grateful to Katy Robinson at Wilsons Solicitors LLP for her continued guidance. Thank you also to Alasdair MacKenzie and Sophy Miles from Doughty Street Chambers for their invaluable advice. Thank you to the Strategic Legal Fund and the Sir Halley Stewart Foundation for supporting our work in on this.