What price sanctuary under the Asylum Bill?
26 July 1999
12 November 2013
27 September 2013
28 May 2013
18 November 2013
5 November 2013
With hindsight, sometimes I wish I hadn't been born." This is not thecomment of an asylum-seeker or refugee, but the reaction of one immigrationpractitioner to the implications of the proposals in the Immigration andAsylum Bill currently going through Parliament, which the Government hasdescribed as "faster, firmer and fairer".
But immigration law and practice is an increasingly complex area with moreand more potential clients and potentially less and less funding. Fewlawyers in this area agree that the new act will be fairer, and they alsoquestion pessimistically whether the system will be faster and firmer, evenwhen the Home Office has got over its computer and bureaucratic crises.Barrister Andrew Nicol QC of Doughty Street Chambers is chair of the Immigration Law Practitioners Association (ILPA). He says that the almost 900 members of ILPA are obviously being exercised by the bill as well as the Legal Aid Board's (LAB) proposals to the Lord Chancellor's departmenton how this area will be funded in the future.Block contracting is currently being piloted. This involves solicitors being paid not at an hourly rate but on a unit fee basis, so there is scope for interpretation of what will constitute a unit. The perceived short age last year of franchised legal aid firms practising in this area has been dealt with by a substantial increase in applications over the last year,but the number of lawyers practising in immigration is inevitably restricted because it is one of the most poorly paid in legal aid terms. Nicol says: "Immigration is a pretty complicated area. The Bar gets affected in a secondary way. If funding is affected, that will impact on how lawyers deal with barristers. The legal aid proposals give rise to conern because asylum work is difficult to classify, and if a lawyer is conscientious, as the vast majority have to be in this area, they will get expert reports from doctors if torture is being alleged, as well as translators. So experts' and interpreters' fees will mount up as part of the work".
Another proposal beign floated is in relation to Abwor (advice without representation) for which the rates-less than £50 an hour-are minimal. Legal advice and assistance (formerly the green form scheme) is not available for representation except in prescribed circumstances, such as bail applications, but the LAB has proposed that it be extended to appeals to adjudicators and the Immigration Appeal Tribunal.
Recen press attention decrying "cowboy immigration advisers", some of whom are from the legal profession, has overshadowed the other proposals which are causing concern for lawyers and their clients.
The Sunday Times ran its "expose" of cowboy immigration advisers earlier this year, which, some argue, accelerated the introduction of an accreditation scheme for lawyers.
The LAB was reported earlier this year as investigating 76 immigration firms whose legal aid claims had risen dramatically in the last year, and closer co-operation with the Office for the Supervision of Solicitors (OSS) was announced.
There has since been a report, earlier this year in February, that the OSS had intervened in a number of immigration firms, but no date has been set for disciplinary proceedings against the individual solicitors involoved in the four firms.
The Law Society has introduced a specialist panel for solicitors in this area. The Bar Council has also proposed a voluntary accreditation scheme, and once the working party has fully worked out the scheme, it is likely to be adopted at its July meeting.
Under the bill, immigration advice can only be given by "qualified persons" who are registered with a new Immigration Services Commissioner or a designated professional body such as the Bar Council or Law Society.
For the Bar, the proposed scheme will lead to an officially sponsored mark of approval as an immigration specialist, which would be backed by a new examination for barristers specialising in this area, likely to cost about £150.
The "long overdue" regulation of immigrationi advisore, according to Bindman & Partners' head of immigration Alison Stanley, appears to be one of the few positive elements of the bill. But if the Bar has to pay more to do this work, she says that barristers should not be expected to do immigration work pro bono, as many do. In common with ohter immigration lawyers, she considers the bill "illiberal, and what is very worrying is the provision to remove the right to appeal for those being deported for 'over-staying'".
That would mean, for example, that there are likely to be more cases like that of Nigerian-born stockbrokdr Ben James, who was recently given permission from the High Court to seek judicial review; which is due to be heard by the end of July. James was due to be deported to Nigeria despite having lived all his adult life in the UK.
Under the current law, over-stayers can appeal a deportation order on compassionate grounds, which takes into account individual and family circumstances, and community involvement. If this is abolished, as proposed in the bill, the only option in the future will be by judicial review.
Peter Bartram of Bartram & Co says: "Counsel are used mainly for asylum appeals, but if you take away deportation appeal rights, that will result in more applications for judicial review".
That will mean more work for solicitors and barristers, but will not necessarily be welcome when it makes the process more time-consuming and expensive, as well as involving judges in what is essentially an administrative process.
As to whether the objections to the bill raised by lawyers are motivated by an elemnet of self-interest, Nicol comments: "This is not a problem which has been manufactured artificially.
"The available supply of immigration lawyers to provide a competent service is far less than the demand of those who want and need that service".
He argues this problem will become more acute if the bill's proposals to disperse asylum seekers around the country are implemented.
The objection of immigration lawyers is a more general one that the result will be greater risk of racism, disorientation and greater obstacles to integration.
There is also the demographic argument that experienced lawyers have needed to develop that experience where the clients are. Historically, that has been in the south east and London area.
The question is who is going to pay for those lawyers to travel to other ends of the country to advise the clients, or for the clients to travel to where they will get competent advice.
Nicol concludes: "This is a time of immense activity.
"It remains an area which is desperately important in a way that is difficult for some to appreciate.
"People must have proper representation. That obviously also aplies to compensation for injury and job loss, but the clients we act for may be sent back to a country where they will be killed, and that raises the stakes".