21 July 2003
On 5 June 2003, a bombshell was dropped on legal aid immigration lawyers. The Lord Chancellor's Department (now the Department for Constitutional Affairs) published a consultation paper on changes to public funding for immigration and asylum work. If the changes are implemented, it will mean a drastic change in how migrants receive legal advice.
Currently, 617 suppliers throughout England and Wales are contracted to provide legally-aided immigration and asylum work by the Legal Services Commission. In the past, immigration advisers have had poor press - solicitors and non-qualified advisers have been accused of providing inadequate and sometimes corrupt advice. The franchising and contracting system of the Legal Services Commission has gone a long way to weeding out the worst abuses among solicitors, and the compulsory accreditation scheme run by the Office of the Immigration Services Commissioner has had a similar effect on non-qualified practitioners. But despite these initiatives, there remains disquiet about quality in publicly-funded work.
The Government is clearly concerned about the costs of immigration and asylum casework to the Legal Aid Fund. It is certainly true that costs have increased in recent years. Public funding for immigration and asylum work (including judicial review) almost doubled in the two years since 2000-01. For the financial year 2002-03, the cost to the Legal Services Fund stood at £174.2m.
The consultation attempts to deal with the two perceived ills of quality and cost. It is in two parts. The first part concerns limiting the amount of time that an adviser can spend on a publicly-funded case. The second concerns compulsory accreditation.
The Government has proposed a set limit to the number of hours of work that can be given under the scheme. The limits proposed are: five hours for an initial asylum application; three hours for preparing any other type of immigration case; and a further four hours for preparing an asylum or immigration appeal.
Disbursements will also be capped. The companion consultation paper issued by the Legal Services Commission on 30 June gives further details as to how the new scheme would run. This document states that disbursements for things such as interpreter's fees, medical reports and country experts should be limited to £250.
Exceptions to the number of hours and the disbursement limit will be made, but the strong implication of both consultation documents is that this will be in only rare cases.
Asylum and immigration law is a highly-specialist, fast-changing area of law. Many immigration cases are complex and involve individuals who may have lived in this country for years and cannot be dealt with in three hours. It is not merely a matter of form-filling.
Good advice at an early stage means that the correct application will be made, obviating the need for appeals and further costs at a later date. Asylum specialists all confirm that it is just not possible to deal with an asylum application in five hours. The client is likely to need an interpreter, which already doubles the time needed to take instructions. The client might have just arrived in the UK, be bewildered by the process and may find it difficult to give instructions for various reasons. Many will be the victims of torture, or other severe ill treatment. And many will have psychiatric problems. For these reasons, even in straightforward cases, it is likely to take at least double the allocated time to deal with the case properly. In more complex cases - for example those involving children, severely disturbed individuals or those with complicated histories - the five hours allowed will be totally inadequate for taking a statement from the applicant, let alone researching relevant country or expert information and drafting legal submissions in support.
All asylum applicants are now interviewed. The best practice guide 'Making an Asylum Application' (funded and endorsed by the Legal Services Commission itself) endorses the presence of an independent representative and an independent interpreter at these vital interviews, at which the decision to grant or refuse refugee status is made. Obviously, this will be impossible within the five-hour limit.
If an asylum or immigration application is refused and goes on to appeal, the four-hour limit for preparing the appeal and for advocacy is completely untenable. The Immigration Appellate Authority has become increasingly professionalised and legalistic in recent years. Routine practice directions demand the production of witness statements; validated professional translations; individualised expert reports (generic expert reports are specifically prohibited by the Immigration Appellate Authority); indexed, paginated bundles; and essential reading lists. Effectively, immigration practitioners have to provide bundles of a standard normal in higher courts. Failure to comply with directions can lead to an appeal being struck out.
Firms will exit market
The effects of this new proposal should be obvious. At a recent meeting of the Immigration Law Practitioners Association called to discuss the proposals, only four firms of the 50 or so present indicated that they would carry on offering a legal aid service. The rest felt that they would have to pull out. It is unacceptable to most immigration practitioners to try to undertake complex litigation for vulnerable clients within absurd time constraints. To do so would undermine lawyers' own professional standards. It is also questionable whether it is ethical for a lawyer to accept a retainer from a client knowing that there are no funds to complete the job properly.
The result of the changes will be that the majority of poor clients needing immigration and asylum advice will not get it. Clients will have to represent themselves at hearings, which will inevitably mean that hearings will be longer. Longer hearings will mean adjudicators will be able to determine fewer cases in the same time, and will drive up the costs of the Immigration Appellate Authority.
The second part of the consultation paper attempts to tackle the issue of quality by introducing a compulsory accreditation scheme for all those advising in publicly-funded matters, be they qualified solicitors or paralegals. The evidence of other accreditation schemes is that this is likely to improve quality. However, the accreditation scheme proposed pulls in the opposite direction to the proposals to set maximum time and disbursements limits for providing legal advice.
Setting unrealistic time limits for legal advice will only defeat the consultation's secondary objective of improving quality, as good-quality practitioners will pull out of the publicly-funded scheme as they will be unable to provide a service of a professional standard in the time permitted. It is likely that the poorer quality practitioners will be the only ones that remain.
If this consultation is implemented, lawyers will drop immigration and asylum legal aid work, but the real losers will be the clients. Asylum and immigration applicants are some of the most vulnerable of the socially excluded in our society. The new proposals mean that this group will no longer get free legal advice and representation. They will be forced to negotiate their way through the increasingly legalistic immigration system without assistance. It should not be forgotten that many will have fled from unjust and persecutory regimes, while others may have fallen foul of the immigration system in a variety of ways. They all deserve appropriate advice and representation, and if they cannot afford to pay for it, this service should be free.
Alison Stanley is a public law and human rights partner at Bindman & Partners