The case of the mainland migrants who wish to challenge the legality of the ruling by the National People's Congress on the right of abode will be a major constitutional test. Given its importance, it is vital that each side should be able to deploy its arguments fully, with all the resources needed to do so. That makes the suggestion that the Legal Aid Department may withhold or delay the granting of legal aid a matter of serious concern.
Lawyers representing the migrants who wish to challenge the legality of the NPC ruling began seeking legal aid before the Standing Committee gave its decision. This was because they needed to begin preparing a case which is likely to involve between 2,000 and 4,000 applicants.
Legal aid was at first refused on the basis that the NPC had not handed down its decision. After it had done so, aid still appears to have been refused because none of the migrants had yet been detained or issued with removal orders. The migrants' lawyers say they have answered all the reasons put forward by the department for not granting aid. They have also suggested that granting aid to only a small group of the migrants so as to reduce the funding requirement, and the need to process thousands of applications. But this does not appear to be a course which has found favour.
Some lawyers believe that it may be premature for the case to be brought and therefore that there may be good reasons for not granting legal aid - particularly because no migrants have yet been detained or removed and therefore, it is argued, there is no decision to challenge. It may also be that aid is granted after the case has been lodged with the court. But this would mean that the case has had to be prepared by lawyers who were not being paid for their work.
Compared to the constitutional issues at stake, legal aid may seem a small matter. But, without it, the playing field is far from level, and suspicions of political motivation will inevitably be raised.
Considerable sums have already been spent preparing the case. An opinion from a leading Senior Counsel was prepared free of charge. It found that the migrants have an arguable case. While the migrants' side of the case is being prepared on a shoestring with the help of lawyers willing to work for nothing, the Government has all its usual resources at its command.
