Legal aid for asylum seekers in the UK is a flawed system. The quality of available legal counsel and advocacy is deteriorating to the point where it may violate the state’s duties under the human rights conventions and eventually result in serious injustices. The root cause of the issue is that qualified attorneys and advocates no longer have a reliable source of revenue from legal assistance, which has led to an increase in providers quitting up completely. Large non-profits like the Immigration Advisory Service and Refugee Legal Centre failed ten years ago as a result of their inability to pay their legal aid fees. Although it is more of a slow burn, the current exodus of lawyers from the industry is definitely significant.
In accordance with Article 8 of the European Convention on Human Rights, the state may be obligated to provide legal assistance in immigration issues. Articles 2 and 3 also do this (although indirectly). But is the UK abiding by its commitments? This article examines legal assistance in the broader context of UK asylum applications, as well as the results of government initiatives, laws, and initiatives to reduce the backlog. The majority of the information presented here is anecdotal, although a number of people and organisations are striving to develop more long-term, solid data sets and case studies to support the main worry of the industry, which is that legal aid for asylum seekers is no longer financially viable.
Legal Aid: What Is It?
Legal aid offers fixed fee payments to lawyers, judges, and other professionals in exchange for their assistance in situations when the client would not otherwise have been able to afford it. Refugees frequently abandon their homes with nothing, only to encounter an intricate, perplexing, and bureaucratic asylum system run by a state that frequently violates its own laws.
Refugees are qualified to receive assistance with their initial Home Office application. Help can only be given at this point if the situation is not “obviously hopeless” or would amount to a process abuse. This is a means-tested programme. The asylum seeker can assist with their appeal if the Home Office rejects their claim for asylum. Once more, this is based on means. Legal assistance is only permitted at the appeals stage if the attorney determines that there is at least a 50% possibility of victory. The success rate of attorneys is tracked.
The amount provided to the attorney is a fixed fee, therefore the amount of time that may be spent on a legal aid case is typically constrained. Simply said, if a lawyer works on too many cases for too long, their income won’t change, and they won’t be able to afford their overhead and salary. They will fail.
Additionally, legal aid money may not always cover certain actions that should be taken, such as attending an asylum interview. Individuals who are given a Priority Removal Notice by the Home Office are only qualified for up to seven hours of free legal counsel under section 25 of the Nationality and Borders Act. This has many restrictions.
Being eligible for legal aid is one thing. Whether you can actually access it in real life is a different matter.
Can Those Seeking Refuge Still Access Legal Counsel?
There were 72,027 asylum applications in the calendar year ending in September 2022. A total of 32,714 legal aid cases were started in England and Wales in the year ending in August 2022. Due to discrepancies in the data gathering times, these dates don’t exactly coincide. A total of at least 25,000 asylum seekers who entered the UK in the past year but were unable to get legal aid remain after subtracting those who are also being housed in Scotland and Northern Ireland (where the laws are different). This represents about half of the remaining asylum seekers in England and Wales.
Even worse, a number of legal aid contractors have decided to discontinue offering some or all legal aid support because it is no longer financially feasible, as if the lack of effective access to basic legal aid wasn’t terrible enough before. Many companies are either unable or unwilling to work on assembling evidence for initial asylum requests. The customer is frequently just given introductory paperwork assistance before being advised to wait for an interview. That is not, in any meaningful sense, legal assistance; it is hand-holding. Additionally, it has been claimed that one of the biggest legal aid providers in the UK has entirely stopped defending asylum applicants during the appeals process.
More than 8,000 judgements will need to be made each month in 2019 if Rishi Sunak’s goal of getting the backlog in asylum cases down to about 20,000 by the end of 2023 is to be accomplished. To help with this, the Home Office is hiring a sizable number of new caseworkers. However, novice caseworkers handling complicated asylum petitions are more likely to consistently make bad judgements. The result could be more instances than we are now seeing going to appeal.
The government’s statement that it is raising financing to the tribunals in an effort to resolve roughly 9,000 cases by March 2023 won’t enhance access to justice in cases where appeals are required. When asked if the decrease in the number of legal aid organisations assisting with appeals has or will cause the Legal Aid Agency to evaluate the necessity for any action, they responded that they “are not concerned about gaps arising.”
In appeal cases, where fewer and fewer legal aid attorneys are available and the courts are under pressure to resolve cases swiftly, mistakes in justice are more likely to occur. It runs the risk of resulting in an asylum system that routinely violates human rights and access to justice if the effectiveness of the asylum system is measured by numerical data (speed and the number of judgements made). Without a concurrent evaluation of legal aid, these important judgements cannot be made.
Even without systematic underfunding for years, which has resulted in a decreasing number of immigration legal aid providers, this would all be bad enough. To stay solvent, those who are still around have had to reduce their capacity and take on more private clientele.
The table below illustrates the overall budget for legal aid and demonstrates that it has not yet returned to its pre-pandemic level. The government’s answer to the consultation on immigration legal aid costs details some adjustments to the rates in specific regions as well as a little rise in the Legal Aid Agency’s recent spending. However, the rise does not take into account inflation or the cost of living and does not apply to all places.
Clearly, legal aid is in trouble. The Legal Aid Agency does nothing to check the capacity and demand in the market, which is concerning even though the Ministry of Justice, not the Legal Aid Agency, regulates the rates.
When selecting whether to accept new legal aid cases or to continue working in the field over the long term, funding is a major decision factor for legal aid attorneys and businesses. As a result, obtaining any form of legal assistance takes time in and of itself. Many people may find the procedure to be stressful and upsetting, especially in light of Sunak’s newly disclosed plans for decision-making times.
A few non-profit organisations that assist refugees have begun to compile preliminary information on access to attorneys. Over the past six months, one has only been able to recommend 5% of clients to an attorney.
Home Secretary Suella Braverman responded that there is “no shortage of lawyers out there advising individuals on action they can take against the Home Office,” as evidenced by the number of judicial reviews the Home Office receives each year, in response to a question about legal aid for asylum seekers at a House of Lords Justice and Home Affairs Committee hearing. However, court reviews are distinct. In comparison to the fees for appeal and asylum application cases, the job is different and the fees are significantly more. This occurs frequently because the Home Office might be held accountable for costs incurred as a result of faulty decision-making.
There are still a small number of asylum legal assistance attorneys, but there are public law attorneys ready to take on judicial review challenges. The Home Office should be ready to spend much more money in the long run on judicial reviews and appeals than they would on legal aid lawyers assisting in the initial asylum cases. Add this to the new plans to expedite decision-making over 2023 and the number of brand-new caseworkers making these decisions, which means that poor decisions may be even more common.
Not All Attorneys Are Competent Ones
In the absence of competent legal assistance attorneys, asylum seekers risk being taken advantage of or misled by unethical advisors. Lack of access to justice is caused by poor legal representation. Furthermore, many asylum seekers will virtually certainly receive denials of their applications if they lack competent legal counsel.
The Office of the Immigration Services Commissioner has attempted to raise the number of immigration advisers who are subject to regulation, as well as the calibre of their recommendations and other company work. There are still some substantial gaps, such as the 52% of the organisations the commission observed admitting they had no funds for training. This is concerning given the constantly evolving system and the nearly quarterly announcement of brand-new, brand-new immigration plans.
The government released its response to the consultation on immigration legal aid fees at the end of last year. Age assessment appeals will henceforth be handled by providers and heard in the First-Tier Tribunal. The government is thinking about the training that might be provided, including a potential accreditation process, in light of the possibility that some providers may lack the necessary experience in this line of work. But many providers might not be able to take part in this if finance is not in place.
There are costs associated with inadequate legal representation for asylum seekers. The Home Office invariably pays the price, but asylum seekers face the most of the harm. Frequently, clients of legal aid firms are long-term residents of the UK who have paid thousands to subpar attorneys or represented themselves. The “repair” is then implemented with the help of legal counsel. Due to the additional labour that is needed, these expenses for the government are higher than those associated with locating the original asylum claim.
Legal Aid Is Scarce
Looking at whether and where access to support is accessible, certain regions of the UK perform worse than others. The Ministry of Justice contends that as bigger procurement regions are utilised to cover many local authorities, comparing legal aid services by local authority area is deceptive. However, a more thorough look at the table below reveals that in several locations where asylum seekers are currently frequently housed, the ratio between the number of legal aid cases accepted and the number of individuals receiving section 95 asylum support (as an example) is alarmingly incomparable.
According to reports, many of the detainees who were relocated from the packed Manston processing centre were given accommodations in Norwich. However, Norfolk as a whole lacks a legal counselling centre. neither in Suffolk. also Essex. Since Luton is over 100 miles away and has no legal aid services, many people cannot receive legal help.
Asylum seekers had already experienced trauma and persecution before arriving in the UK. When they arrive, they should have access to justice, which necessitates having access to competent legal counsel. Everyone deserves an equal opportunity to present their case.
However, only over 50% of those seeking refuge can get legal aid. More businesses are finding it difficult to bear the financial losses associated with handling appeals. The government intends to drastically expand the number of decisions regarding asylum during 2023 in the context described above. There just won’t be enough attorneys available to take on all of these cases without significant reforms.
Here at Law Lane Solicitors, we have the experience and expertise to advise you on Immigration and Asylum. If you would like to speak to one of our specialists, then please call us on 0207 870 4870 today.
Tahir Shahab Khan