Borderline Justice

Issue section: 

Frances Webber

For nearly 30 years Frances Webber, a leading lawyer, represented migrants and asylum seekers in the UK. Borderline Justice describes how, in her legal lifetime, the law has been deployed, developed, used and abused, stretched and strained for use against migrant and asylum seekers. But much more than that, it shows how it has also been used to resist executive abuses of power, exclusion and injustice.

Webber sets out with the clarity one would expect from someone who was the co-editor of the authoritative text on immigration law. The book follows the migrants' trajectory from contests at the border preventing entry, through obstacles for recognition to the development of state machinery institutionalising racism, and the resistance to deportation.

This is not a law book, though even lawyers, perhaps especially those who work with migrants, may benefit. It charts many of the successes that migrants and their lawyers have had. It is a call to continue the struggle for justice.

Migrant justice is borderline, all too often tipped into injustice, but through the work of Webber and lawyers like her, the European Convention on Human Rights has become a powerful weapon in that fight. Yet each step forward has been resisted, and victories trampled over by new laws and rules changing the goalposts, which in turn have led to further legal challenges. As human rights lawyer Gareth Peirce says in her foreword, this book is a record, disturbing in its detail, of that pitched battle.

Webber's description of her baptism of fire when making an application for an emergency injunction to prevent the summary removal of Sri Lankan Tamil asylum seekers includes details of the Home Office's measures. These have historically included examination of skulls, teeth and pubic hair, ostensibly to check age, and they still resonate today.

The Home Office ceaselessly devises new ways to affront the dignity of migrants, and all too often justice involves last minute reprieves.

Webber makes the point that it is not only the Tories who have introduced laws and rules limiting migrants' rights - mountainous legislation has been passed by Labour governments. It was New Labour that "came up with a system of institutionalised inhumanity", NASS, "a monstrous system which had a lot in common with the workhouse". She charts how destitution has been used as a weapon against migrants, and yet how organisations and networks of activists have grown and developed providing support, advice and resistance.

Webber is particularly strong when she describes struggles regarding women seeking asylum. Gender based persecution did not fall within the definition of refugee, and for years the Home Office and the courts refused to entertain claims based upon such persecution. In order to remedy this, women's groups such as Southall Black Sisters and Crossroads Women's Centre joined together with lawyers and published a legal handbook - Women as Asylum Seekers.

This evolved into a set of guidelines which eventually forced the Immigration Tribunal to produce its own. However, they remained inadequate until through her persistence, Webber was able to bring the case of Mrs Shah, a woman who had been subject to constant and severe domestic violence in Pakistan, to the House of Lords. The ground-breaking ruling accepted that the Refugee Convention protected groups defined by sex, gender or sexuality.

Borderline Justice was written before swingeing cuts to legal aid were imposed in April this year, and before recent plans to curtail it even further by secondary legislation this October.

Pete Weatherby QC, my supervisor when I was training some years ago, wryly remarked that the government could bring an end to litigation that challenged the government by simply removing legal aid. Large areas of migrant law are now out of scope, a residence test is planned, and funding for the initial stages of judicial review is to be removed. Without legal aid, the cases that Webber describes that represented real victories for migrants would never have found their way into the courtroom, and if they did would never have had the funds to progress through the courts; the battleground has shifted.

However, these cuts are being fiercely resisted, and can be defeated. One Monday in April 400 barristers in the north west held a "training day" leaving them unavailable for court, cases went unheard and courtrooms were empty; it was in all but name a strike. In May I joined 350 lawyers who marched from the steps of Manchester Crown Court through the city to the Ministry of Justice consultation event where minister for justice Chris Grayling's hapless officials found themselves incapable of rebutting the attacks they faced. The next day a meeting of hundreds of lawyers in London voted to institute a rolling programme of "training days" increasing in number on dates to be announced from time to time. Grayling has stirred up a hornets nest. He may well get stung.

Borderline Justice is published by Pluto, £17.50