Legal aid cuts will target those most in need of protection
August 28, 2003 — Comment
Written by Arun Kundnani
Last January, the government threw asylum seekers onto the streets, under the new ‘Section 55’ rules. This January, it plans to deny them access to proper legal advice, under new proposals to ration legal aid. The result will be the ‘warehousing’ of cases and the end for many of a chance of a fair hearing.
Yesterday the consultation period ended for the Home Secretary’s plan to cut legal aid for immigration and asylum cases. In a paper published in June by the Lord Chancellor’s Department (now the Department of Constitutional Affairs), a series of measures were proposed to tackle the rising cost of legal aid. First, each asylum seeker will be given a unique reference number. Under this number, they will then be entitled to a maximum of five hours legal support up to and including their initial Home Office interview. If they choose to appeal a negative decision, they will be allowed a further four hours to prepare. Other kinds of immigration cases, such as family union, will be permitted just three hours of advice to prepare their initial claim.
The government believes that these changes, which are due in January, are necessary because of spiralling legal aid costs fuelled by unscrupulous lawyers wasting public funds on asylum and immigration cases.
Time limits unworkable
Because of the simplistic way in which the issue is usually presented, most people are unaware of the complexities involved in preparing an asylum claim. It involves taking detailed statements from those who may not speak English and are likely to be frightened and traumatised, particularly if they have survived rape or torture. The solicitor who does this job well will seek to build up the confidence of their client over a number of sittings, effectively becoming their counsellor as well as their legal representative. They will then need corroborative evidence – medical evidence of torture, for example, membership cards of political parties, newspaper cuttings from the relevant country, letters and statements from witnesses.
Then the solicitor will accompany their client to the Home Office interview – an essential part of their work since the interview is conducted in an adversarial style, as if in a court of law. The Home Office interviewers operate within a culture of disbelief: they usually assume that the asylum applicant is lying and believe that their job is to expose their lies by adopting a dismissive and bullying attitude. The presence of a solicitor to represent the applicant can help redress this imbalance.
This work is not predictable timewise, not least because it is at the mercy of an inefficient Home Office. Every phone call to the Home Office, however ineffective, every letter which goes unanswered, every interview which has to be rescheduled at the last minute, uses up time.
All of this work is now threatened by the proposal to limit initial work to five hours. Solicitors will be expected to help their client fill in the form. And that will be it. The result will be that the more traumatic an asylum seeker’s experience, the less likely will it be that s/he is able to collate all the evidence for the case within the time limits. Those most in need of protection will be hit hardest.
Of course, even now, there are exploitative asylum lawyers who only do form-filling. The provision of full and proper legal advice to asylum seekers is not commercially attractive. What can be is the ‘warehousing’ approach, where solicitors process cases like a production line, providing the bare minimum of representation and not doing any collection of evidence beyond the asylum seeker’s own statement. The irony is that a government proposal, ostensibly designed to prevent abuse of the system by unscrupulous solicitors, will force everyone down to the level of these worst practitioners.
Even those solicitors, who have till now had a professional commitment to quality service, will be forced to work within time limits which mean they can only provide the bare minimum service. Naturally, these solicitors would be hesitant to take on a case when their ability to provide a proper service is compromised from the outset by a time limit. Already, some firms are threatening to refuse to renew their legal aid contracts for immigration work under the new terms, rather than be forced to provide a below standard service. (One such firm, Wesley Gryk, have explained their reasons in a detailed submission to the consultation). But the cowboys will have no such qualms.
One likely effect will be an increase in appeals. As the quality of justice at the initial stage worsens, clients will push to compensate for this through exercising their right to appeal, as at this stage they will get more time with their solicitor and another chance of a hearing. Indeed, unscrupulous lawyers could encourage their clients to appeal because it will be there, at that more expensive stage, that they can earn extra money.
So the appeals stage will become cluttered up with the remnants of the capped initial stage. Since appeals are expensive, any savings obtained by the initial limits on legal aid will be squandered by spiralling appeal costs. Though there are proposed time limits on the appeal as well, cases that have not been adequately prepared because time ran out will take up more court time while these issues are resolved. Again, any savings in legal aid costs may be undermined by higher court costs.
It is true that legal aid costs on asylum and immigration cases have risen from £81.3 million in 2000-2001 to £174.2 million in 2002-2003. The government’s consultation paper believes that this rise cannot be explained just by the increases in the number of asylum seekers, the increased number of appeals and the effects of the dispersal policy (higher travel costs for the solicitor). The paper argues that the explanation also lies in asylum seekers ‘shopping around’ for advice and lawyers using public funds to pursue ‘unmeritorious’ cases.
But there is no real evidence to back up this argument. When asylum seekers switch solicitors it is often not because they are ‘shopping around’ but because they have been poorly represented by their first lawyer. The Bail Circle, a group which assists detained asylum seekers, has prepared a survey of cases in which rejection at the initial stage of the claim was reversed after an incompetent lawyer was replaced by someone doing the job properly. These reversals would not be possible if the current proposals are put in place because asylum seekers would have used up their time quota on the first lawyer. Some of the reversed cases are listed here:
- A survivor of rape and torture while imprisoned in a central African country was held at Oakington Detention Centre after fleeing to Britain. Her first solicitor did not commission a trauma report, leading to her asylum case being rejected. After finding a competent solicitor, she obtained a Medical Foundation report and was able to gain indefinite leave to remain.
- A Francophone African mother with her toddler child were imprisoned in their home country. After coming to Britain, she was detained while pregnant and miscarried. Her solicitor was incompetent and bungled the matter of her child’s father having EU citizenship. After transfer to a competent solicitor, bail was successfully obtained and a proper case was prepared. Eventually, she won exceptional leave to remain as the partner of an EU citizen with UK residence.
- An East African survivor of rape and torture was detained at Oakington Detention Centre after coming to the UK. The first solicitor failed to produce a trauma report. A subsequent competent solicitor did this and obtained bail for her release from detention.
- A North African married couple, who had been in detention for five months, were let down by their first solicitor who did not bother to research the asylum claim or obtain evidence. The mother of the family was on a plane about to be deported when a barrister managed to obtain a High Court injunction, after an emergency transfer to a better solicitor. A judicial review was needed to win the case.
- An East African, who had been imprisoned and tortured, was detained in the UK for ten and a half months while his solicitor idled on the case. After switching to a good solicitor, bail was granted and eventually indefinite leave to remain in the UK.
- An East African survivor of torture and rape was detained in the UK, despite clear evidence of torture. No trauma report was commissioned by the solicitor. It was only after switching to a high quality solicitor that indefinite leave to remain was granted.
- Two women who had been trafficked from a West African country for prostitution were detained for two months. They were provided with a solicitor by the trafficker, who was keen to seek their release from detention, probably for nefarious reasons. It needed the transfer to a good solicitor to get the women released from detention into accommodation where they would be safe from the trafficker and eventually obtain indefinite leave to remain.
As can be seen from these cases, a far more effective way of reducing costs would be for the government to improve access to justice at the initial interview stage and thereby reduce the number of costly appeals. This would require changing the culture of disbelief among immigration adjudicators at the Home Office and creating an environment in which asylum applicants are treated with respect, so that the truth of their claims can emerge early on, rather than at the appeal stage. The number of appeals in immigration and asylum cases has more than trebled from 19,395 in 2000 to 64,125 in 2002. The current proposals would only worsen this trend.
But, rather than see the rising number of appeals as an outcome of the Home Office’s own poor decision-making, its attitude is to assume that appeals are caused by unscrupulous lawyers and asylum seekers conspiring to pursue ‘unmeritorious’ cases. As we have seen over the last two years, David Blunkett tends to think that people who exercise their right to challenge authority are in some way suspect – he described the families who campaigned to appeal the sentences of the Bradford rioters as ‘whingers’. And the proposal to cut legal aid in immigration and asylum cases comes as similar cuts are being proposed in criminal law: free legal advice offered by duty solicitors in police stations is to be withdrawn in certain cases – such as drink driving where the government believes a solicitor would make no difference to the outcome.
As for unscrupulous lawyers, there are already measures available to ensure quality. The Office of the Immigration Services Commissioner was established, under the 1999 Asylum Act, to weed out incompetent practitioners. As a result, those firms which fail to meet adequate standards have been fined, reprimanded, had their franchises withdrawn or even been convicted for fraudulent practices. Around fifty firms have been culled from the legal aid books.
Among the groups of asylum seekers that will be worst hit by the rationing of legal aid will be those in detention centres. They already have great difficulty finding any legal advice at all. They cannot visit a solicitor’s office, communicate easily or gather their own evidence. The five-hour limit will make it highly unlikely that they will find solicitors able to represent them. Yet, their need for legal support is greater than those not detained.
Detention powers in the UK are so complex that detainees cannot be expected to make effective bail applications without legal assistance. An application for bail must include a legal argument which addresses the Immigration Acts, Article 5 of the European Convention of Human Rights, Home Office policy and guidance on detention and relevant case law. In addition, a lawyer making a bail application must make sure the two sureties have been advised of the law. The government has agreed that some additional time will be allowed to make bail applications but it is unlikely to be sufficient.
The time limits make no concessions for special cases, such as unaccompanied children seeking asylum. They too will be constrained to five hours to prepare their case, even though, according to evidence gathered by the Children’s Society, extra time would be needed, for example to help a child understand the legal process. A child’s case may also require additional expert evidence, for example on the effect of deportation on the child’s development and education, or to resolve age disputes. Furthermore, a child would not be expected to have the same knowledge of the political situation in the home country as an adult, placing an extra demand for country research. No allowance has been made for the need for someone to accompany the child to the Home Office interview, even though the Legal Services Commission, which administers legal aid, has in the past acknowledged that children must be accompanied to interviews.
Family union cases
The cutbacks will also hit settled black and minority ethnic communities. Historically, the issue of family union has been a key political issue for these communities, as immigration laws have prevented spouses from living together in Britain. Many continue to find themselves having to struggle to permit their husband or wife to join them. Now, legal aid in these cases will be limited to just three hours: the government believes that these cases involve ‘form-filling rather than the need for expect advice on immigration law’. However these cases can be far more complex than they appear. The burden of proof is on an applicant and the pre-decision evidence required can be immense. Currently, legislation such as the Human Rights Act and the Race Relations Amendment Act are still at the early stages of being tested in this area and so the process of building up a body of test cases will be cut short.
Like the Section 55 cuts to benefits, the curbing of legal aid will add to the likelihood that immigrants fall out of the system altogether. Indeed, that appears to be the government’s strategy – reduce any incentive for a person to claim asylum at all by removing any real chance of their having their case properly heard. The result will be that the government continues to enjoy falling asylum statistics while more and more refugees are pushed into surviving in the illegal economy.
In 1991, the then Conservative Home Secretary Kenneth Baker attempted to withdraw legal aid for all asylum and immigration cases and instead have either the Immigration Advisory Service or the Citizen Advice Bureaux provide all advice – in effect, a similar rationing as that proposed today. But that attempt was scuppered by a strong campaign by refugee organisations, black groups, advice agencies and lawyers.
A similar campaign has been launched today, following a meeting of sixty representatives from different organisations, including the Immigration Law Practitioners Association, Liberty, Refugee Action, Joint Council for the Welfare of Immigrants and Bail for Immigration Detainees, who are all united in their opposition to these proposals.
The Institute of Race Relations is precluded from expressing a corporate view: any opinions expressed are therefore those of the authors.
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