Immigration special: Change of heart

As the legal aid cuts bite, immigration firms need to be more commercially minded to make the transition into privately funded work

With the coalition Government keen to tighten the noose on immigration so as to be able to brandish a significant reduction in ‘net migration’ numbers by the time of the next general election in 2015, the much publicised and swinging cuts to legal aid in this very volatile and politically charged area of work couldn’t have come at a worse time.

immigration reboot

Over nine years ago niche immigration firm Wesley Gryk Solicitors gave up its legal aid contract, at a time when it was doing a mix of about 70-80 per cent legally aided work and 20-30 per cent privately funded work.While firms face losing upwards of 75 per cent of current publicly-funded immigration work, the writing had been on the wall for years with many firms considering that in order to survive they needed to take the difficult business decision and withdraw from legal aid work in favour of private work.

“Our own motivation was that we felt that the cuts being imposed by the legal aid authorities on the scope of representation – even at that time – meant that we no longer were able to afford our legally aided clients the same level of service which we provided to our private clients,” remembers Wesley Gryk, senior partner and founder, “and we were not prepared to make that differentiation.”

Other firms think that keeping some legal aid work still makes sense.

“There’s definitely a market for mixed economy firms that may still do legal aid albeit decreasingly year on year to help many different businesses with corporate immigration work,” observes Robert Sparks, head of immigration at Fisher Meredith.

Fisher Meredith gave up its legal aid contract for immigration work in 2011, moving from a team of 11 to a team of five.

With the Coalition Government keen to tighten the noose on immigration by the time of the next general election in 2015, the much-publicised and swingeing cuts to legal aid could not have come at a worse time for firms working in immigration, with firms facing the loss of  upwards of 75 per cent of current publicly funded immigration work. 

The writing has been on the wall for years, with many firms deciding that in order to survive they would need to withdraw from legal aid work altogether.

Over nine years ago niche immigration firm Wesley Gryk Solicitors gave up its legal aid contract at a time when it was doing a mix of about 70-80 per cent legally aided work and 20-30 per cent privately funded work.

“We felt that the cuts being imposed by the legal aid authorities on the scope of representation – even at that time – meant we were no longer able to afford our legally aided clients the same level of service that we provided to our private clients,” recalls senior partner and founder Wesley Gryk, “and we were not prepared to make that differentiation.”

Sparks
Sparks

Other firms think that keeping some legal aid work still makes sense. “There’s definitely a market for mixed-economy firms that may still do legal aid, albeit decreasingly year-on-year to help different businesses with corporate immigration work,” says Fisher Meredith head of immigration Robert Sparks.

Fisher Meredith gave up its legal aid contract for immigration work in 2011, moving from a team of 11 to a team of five.

“Firms need to encourage those who traditionally see themselves as legal aid lawyers to become more entrepreneurial and start developing private practice alongside the legal aid work they do,” says Sparks, who joined Fisher Meredith to lead the shift towards private work.

Commercial break

The need to be commercially minded can be difficult for legal aid lawyers, says Sparks.

“Legal aid lawyers quite rightly are dedicated to the cause but there has to be a shift in mindset,” says Sparks. “Having been used to working for £40-50 an hour and suddenly billing themselves out at a private rate that could be £200 an hour, I think that is a stumbling block. Having to ask clients for money is something they find difficult.”

Many firms adopt a “Robin Hood approach” says Gryk, continuing to carry out the full scope of immigration work. To the extent that they represent relatively high net-worth individuals, they charge them an appropriate fee and use the profits to help finance work at substantially lower fees – or even on a pro bono basis – for less well-off clients.

“The irony,” adds Sparks, “is that lawyers who have been doing legal aid work will do as part and parcel of their practice a load of pro bono stuff anyway. If they go, there will be a lot of pro bono immigration work that goes with them.”

Another important effect on pro bono work will be that firms moving towards privately funded work will have to become more target driven. The fear is that pro bono work will fall by the wayside or become secondary to fee-earning.

Another difficulty for pro bono, says Emma Cohen of Bindmans, is the high level of disbursements.

“Although you might be able to offer your services for free you still need interpreters, medical reports or country reports. That could be problematic unless you can persuade other people to do things on a pro bono basis too.”

The good with the bad

With immigration law in a constant state of flux, the increase in complexity means there is “plenty of work out there for legal aid immigration practitioners who wish to make the transition,” says Gryk.

And while the sheer amount of available work may mean that firms that have already made the transition do not see a challenge from firms moving into the private
market, there is one group that should feel threatened.

“If you have got respected legal aid providers coming in and offering private work then there is hopefully a knock-on effect on those rogue advisers that are around,” reasons Sparks. 

“In fact, it might have a positive effect on the quality of advice that private immigration clients are getting,” he adds.

Another effect of the cuts could be an increasing number of litigants in person. The danger is that the judicial system will become clogged up and cases will become slowed down even further.

Meanwhile, the Government’s super premium bespoke service, through which many private clients pay £6,500 for their applications to be dealt with speedily via a home appointment, is proving so popular it has become increasingly difficult to secure appointments.

“Is Britain open for business?” asks Sparks. “I’m not so sure.”