Right of access to counsel and legal aid

At a glance

Any person in custody under the Immigration Act 2009 has the right to contact a lawyer or, if the detainee is a minor, any parent or guardian or nominated responsible adult, and must be informed of that right [D5.45]. If exercised, the person contacted must be allowed access to the detainee and private communication [D5.45]. Certain persons facing a warrant of commitment are eligible to apply for legal aid [D5.45].

Definition

D5.45 codifies the right of access to counsel and legal aid for persons detained under the Immigration Act 2009. It applies to all immigration custody situations, including turnaround and arrest/detention under Part 9 [D5.45]. The section reinforces the procedural fairness protections afforded to detainees and ensures they can seek legal advice and, where applicable, publicly funded representation.

The right consists of three components:

1. Notification obligation: Every person in custody under the Act must be informed of their right to contact a lawyer, or for a minor, a parent, guardian, or nominated responsible adult [D5.45].
2. Access and private communication: If the detainee chooses to exercise the right, the person contacted must be permitted to access the detainee and communicate with them in private [D5.45].
3. Legal aid eligibility: Any person about whom a warrant of commitment is being sought under section 316 of the Immigration Act 2009, and who is subject to turnaround and/or arrest and detention under Part 9, is eligible to apply for legal aid under section 7(1)(l) of the Legal Services Act 2000 [D5.45].

Application in decisions

Immigration officers and constables detaining a person under the Act must comply with D5.45 by:

• informing the detainee of the right to contact a lawyer (or for a minor, a parent/guardian/responsible adult) as soon as practicable after custody begins [D5.45];
• facilitating private consultations when the right is exercised [D5.45];
• for persons who are the subject of a warrant of commitment application under section 316 and are in the turnaround/arrest/detention stream under Part 9, advising them of their eligibility to apply for legal aid [D5.45].

Failure to inform a detainee of these rights may affect the lawfulness of ongoing detention and could be raised in judicial review or habeas corpus proceedings.

Interpretation & edge cases

• Minors: For a detained minor, the right extends to contacting any parent or guardian, or a nominated responsible adult in addition to a lawyer. The officer must inform the minor of this option [D5.45].
• Private communication: The requirement for private communication means the authorities cannot monitor or be present during the conversation between the detainee and the contacted person, safeguarding legal professional privilege [D5.45].
• Legal aid scope: Eligibility for legal aid under this provision is limited to persons against whom a warrant of commitment is being sought under section 316 and who are subject to Part 9 turnaround or arrest/detention provisions. It does not extend to all immigration detainees, but only to those in the specific procedural pathway described [D5.45].
• Overlap with other rights: The rights under D5.45 complement the general detention rights in D4 (Arrest and detention) and the fairness obligations in A1, but impose a specific notification obligation and a statutory legal aid gateway.

Citations

• D5.45 — Right of access to counsel and legal aid