ONE of the founders of specialist immigration law firm McGlashan MacKay has called on Justice Secretary Humza Yousef to review rules that prevent Scottish residents receiving Scottish Legal Aid Board (SLAB) funding for Special Immigration Appeals Commission (SIAC) cases.

While in Scotland challenges to Home Office immigration decisions are normally heard at the Immigration Tribunal in Glasgow, any cases that involve a national security element must be heard at the SIAC in London.

As the SIAC’s jurisdiction is UK wide, and as it is the only forum in which such appeals originating in Scotland can be heard, McGlashan MacKay partner Euan MacKay said he has written to Mr Yousef to ask for the SLAB restriction to be lifted.

“There’s no legal aid available through the Scottish Legal Aid Board for anything going to the Special Immigration Appeals Commission, but the only way to challenge these decisions is to go to the SIAC,” Mr MacKay said.

A spokesman for the SLAB noted that “the UK Government has provided that legal aid for SIAC is available through the English and Welsh legal aid system”.

“That, like Scottish legal aid in the Scottish legal system, has no residence requirement, and is therefore available to people resident throughout the UK,” he said.

However, Mr MacKay said that because anyone already living within the UK must file an appeal within 10 days of having their citizenship refused or revoked, in practice Scottish solicitors have to refer their clients onto English counterparts in order to meet that deadline.

“We had a case a couple of years ago that we eventually had to refer to an English firm because we wouldn’t have been able to agree the point about legal aid in order to comply with the timescales,” he said.

"The Scottish Legal Aid Board at that time said there was legal aid available through the English system but that meant our client instructing English solicitors and travelling down to London.

“I have a client at the moment who waited six years for a decision on his citizenship and when it was refused they [the Home Office] said it would not be in the national interest to tell him the reasons.

“He can’t apply for legal aid because the Scottish regulations don’t allow it, so we’d have to just stop working for him and refer it to an English firm [if he wants to apply for legal aid].

"He doesn’t know what’s going on and we’re trying to explain that he’s not allowed to know the reason [why his application was refused] after waiting for six years then I’m saying I can’t advise him.”

Though historically there has not been a large number of SIAC cases originating in Scotland, Mr MacKay believes that changes made to the definitions of good character the Home Office bases its decisions on will change that.

Prior to 2015 a history of criminal convictions or suspected criminal or terrorist activity was taken as an indicator that an applicant was not of good character, but that was updated in 2015 to include people who entered the UK illegally.

“Historically it hasn’t been a problem because there hadn’t been too many cases coming from Scotland, but they changed the good character guidance four or five years ago,” Mr MacKay said.

“Following that there has been a sharp increase in the number of citizenship refusals; along with that there will be an increase in the number of cases going to the SIAC.

"There will be more of it up here because they are refusing people who are applying for citizenship on the basis of good character but they won’t reveal what their apparent bad character is.”

While the Scottish Government makes legal aid funding available for appeals to the UK Supreme Court, which is also based in London and hears appeals from Scottish courts, a spokesman indicated that it would not be able to update its legal aid regulations to include SIAC cases.

“The Special Immigration Appeals Commission remains reserved, meaning that applicants from Scotland have to apply for legal aid via England and Wales,” a Government spokesperson said.

“Any review of legislation would be for the UK Government to consider.”