Taking over the asylum

The Government's asylum seeker dispersal programme has failed to take into account the lack of good immigration lawyers outside the capital, sparking chaos as regional firms buckle under the strain.

Right from the start, the lack of immigration law experts in the provinces was identified as a potential flaw in the plan to resettle refugees. It was argued that without good legal advice, asylum seekers would simply hop on the first bus back to the capital. And the small number of practitioners that are experienced in asylum law around the country are already reporting that they are being pushed to breaking point.
The leading immigration firm in Newcastle David Gray & Co, for example, has not taken on a new client in nine months despite the unrelenting demand for legal advice. When the department was at its busiest last year, there were up to 50 refugees crammed into the firm's small waiting room.
“Our worry is that the flow of dispersal hasn't dried up at all and [the Home Office] is talking of new areas in the North East, such as Durham and Northumberland,” reports senior partner David Gray. “Spare accommodation seems to be the driving force, almost forgetting what's happening on the ground in terms of solicitors and doctors.”
According to a Government spokeswoman last month, Blunkett had no intention of scrapping the plans to move asylum seekers around the country, but he was concerned about how it was working. “We want to ensure that there are effective integration measures,” she said. “It's about ensuring the right sort of support systems are there.” It was not clear, though, whether any review would address the shortage of lawyers.
In Birmingham, one immigration lawyer estimates that his practice was turning away up to 50 refugees every day following the dispersal programme. The firm closed its immigration practice in April.

“The LSC contracting regime is good at testing the adequacy of office systems, but it's not quality assurance-based”
David Smith, Nelsons

It is a similar story in Bradford. “Most of the organisations that normally send us cases know that we're not taking any on, so they don't even send them straight to us,” says Charles James of James & Co, who has advised on immigration matters for 20 years in the city. “But we get people walking in off the street or ringing us up two or three times a day who we can't help.” He reports that refugees are so desperate for legal advice that, in an attempt to secure a meeting, some have been known to come into the office, take a caseworker's business card and write a fake appointment time on the back.
It is grim picture, but one that will not come as a surprise to ministers. Government watchdog the Audit Commission flagged up the shortage of immigration practitioners outside London as a problem for the Government in June last year. According to the commission: “Without effective support, asylum seekers could be trapped in a cycle of social exclusion and dependency in their new communities, or they may drift back to London.”
At that point there were only 423 firms that practised immigration law, and more than half of those were based in London. “[This] could undermine the new dispersal policy, as without adequate legal support locally, many asylum seekers may be unwilling to live outside London or other major cities,” it argued. It was also a problem that Amnesty International highlighted in its annual report this year, when it referred to the “alarming shortfall in access to legal advice”.
Shortly after the Amnesty report, the Legal Services Commission (LSC) put together its expansion package for law firms to meet the increased demand. It offered firms with immigration law franchises one-off grants of £2,000 for each new member of staff recruited externally and £1,000 for internal recruits. The commission also promised to increase a firm's scheduled payments by £45,000 per year for three years for each new recruit, as well as committing itself to funding courses to train new advisers.
But, as James points out, the Government has a long way to go. Only three years ago, half of all the asylum work was handled in London and the South East, he reports, and 95 per cent of the legal advisers were based there. But now the situation has changed completely. James set up his own firm four years ago with a full-time caseworker and another one part-time; he now has eight caseworkers and is turning work away. “If you ask 5 per cent of the suppliers [of legal advice] to do 50 per cent of the work, you're bound to have problems of quantity and quality,” he says.
More recently, the expansion package has been extended to London firms. But lawyers in the capital are also overstretched. Douglas Noble, head of immigration at Fisher Meredith, reckons that his firm receives between three and five new inquiries every day from asylum seekers who the firm is just not able to assist. “Our concern is that we don't have any referral sources at other firms who will take them on,” he says.
Only 18 months ago, David Gray was the only experienced immigration firm in the North East. However, there are now in the region of 10 firms practising in the area. According to Gray, despite the Government's best intentions, it simply cannot “manufacture” experience. Gray sits on the steering committee for the Immigration Law Practitioners' Association for a caseworker training course which is backed by the Legal Services Commission (LSC). “At the moment, the big worry is that people are merely processing cases rather than actually serving the client's best interests,” he says.
It is a fear that is echoed by other experienced practitioners throughout the country. There has been something of a “mad scramble” by some firms to get up to speed, claims David Smith, head of immigration at Nottingham firm Nelsons; but in the rush, he says, quality has been sacrificed.
Smith is an assessor for the Law Society's immigration panel. “The LSC contracting regime is good at testing the adequacy of office systems, but it's not quality assurance-based,” he says. Certain files that he has seen show an alarming lack of knowledge about current law. In one file, a lawyer refers to the notorious 'primary purpose' rule, which prohibited entry to someone whose marriage was entered into primarily to gain admission, which was scrapped in 1997; in another, the adviser seemed unaware of the application of the Human Rights Act in asylum cases. “You can't get more fundamental than that – especially in the asylum field,” Smith notes.
Despite the enthusiasm of some firms for this new market, other more experienced firms have been bailing out of immigration work, including McGrath & Co in Birmingham, Taylor & Emmet in Leeds and Linnells in Oxford.
According to Tauhid Pasha, legal policy and information officer at the Joint Council for the Welfare of Immigrants (JCWI), the Government's expansion package “doesn't mean much, because the incentives are far too small”. He says: “Firms are reluctant to take this work up because the level of remuneration for paid immigration work is so low compared with other types of legal aid work, so you really do have to do it on a conveyor belt basis.” Such pressure leads to firms adopting a factory approach to immigration, “with appalling standards of quality”.
James reckons that, in the case of immigration, the billing system under the contracting regime does not work because of the long life of asylum cases. By way of an example, he has just received a favourable decision from the Home Office for a case which was opened in June 1998, but he is still not able to bill for the case until the client renews his passport and the Home Office stamps it for indefinite leave.
“We're hiring more staff and building up more and more work in progress and we're getting paid in a couple of years time,” he says. “The system simply was not designed for a tenfold increase in a two-year period.” He wants to see a more sensible form of interim payment than presently offered, which would allow firms to bill on a six-monthly basis.
In the meantime, asylum seekers continue to be dispersed, with their applications working their way through the system. According to the JCWI, a bad situation is being made worse by the immigration authorities' refusal to acknowledge the need for lawyers in the application process.
Pasha at the JCWI points out that there is “no mandatory right to legal representation” when, for example, a refugee attends an asylum interview at the Home Office. Such an interview can take up to four hours and forms the basis upon which a decision to grant asylum is made. “Having a legal representative can determine the whole tone of the interview,” he argues. “The purpose of their presence, rather than to provide answers on behalf of the applicant, is to ensure a fair interview is taking place.” To highlight the approach of some immigration officers, he quotes one officer who saw his job as “tearing that person to pieces”.
Asylum seekers are expected to complete the initial self-examination form within 10 working days. It can be as long as 20 pages and forms the substantive basis of the application. According to Pasha, finding a lawyer, arranging for an interview in the presence of an interpreter and completing the form in the allotted time is “nigh on impossible”.
Noble at Fisher Meredith represented a Somali asylum seeker and her two grandchildren in their application for a judicial review of a Government decision to separate them from their family and send them to Glasgow under its dispersal scheme. They intended to rely upon the right to family life under Article 8 of the European Convention on Human Rights. But they also intended to use Article 3 and argue that it would be inhuman and degrading to move them to Glasgow after the racist violence on the Sighthill Estate.
According to Noble, the application for the review was lodged on the Wednesday and an injunction against the National Asylum Support Service was sought the following day to prevent the 66-year-old woman's eviction by the end of the week. But on the Friday she received a Home Office document confirming her full refugee status, which effectively took her out of the dispersal programme. The document had been issued seven days prior to that. He says: “It was an absolute outrage that all that worry had been caused and all that unnecessary work had been done and she wasn't even dispersable.”
All lawyers complain of the chaos at the Home Office. Andrew Holroyd, head of immigration at Liverpool firm Jackson & Canter and a Law Society council member on the immigration law sub-committee, can detect “neither rhyme nor reason” in the Home Office's approach. Some cases are turned around almost instantly, he reports, while others “seem to get stuck in the middle of nowhere”. He cites the treatment of two brothers whose cases were identical: one was dealt with within six months and the other had just been dealt with after disappearing in the system for five years. He says: “It's just typical of the nonsense that we've had to put up with in the past.”

Immigration – the Legal Services Commission's response

The Legal Services Commission (LSC) launched its expansion package last June to encourage more practitioners into the immigration field so as to keep pace with the explosion in demand which has come as a result of the Government's dispersal programme.
It offers firms with immigration law franchises one-off grants for new recruits, as well as promising to increase firms' scheduled payments by £45,000 per year per recruit for three years. According to the LSC, of the 220 firms that currently have contracts for immigration work outside the capital, 47 have availed themselves of the package. This represents 85 new caseworkers, mainly in the key pressure areas of Birmingham, Cardiff, Leeds, Liverpool, Newcastle and Nottingham.
Roger Hamilton, policy and legal director at the LSC, believes that the package has had a good take-up rate from the profession. “At the moment, we think it's been a success so far, and it's enabled the profession to just about keep up to pace,” he says. “Although we're not confident that every asylum seeker has been able to get help, we believe that it has allowed the profession to expand in line with demand.”
But he also recognises that the situation is “tight”. “We're told that the Home Office wants to speed up its decisions and maintain its dispersal, but we also know that there is a drift back to London,” he says. “It's like trying to hit a rapidly moving target which is being pulled in all directions.”
More recently, the expansion package has been extended to London firms. The LSC has issued 16 new contracts to firms in London representing 82 caseworkers. According to Hamilton, the capacity for immigration work in the capital is set to increase significantly; the LSC's task is to consider how best this can be deployed to fill in the real gaps around the country.