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Legal Help and Representation for Immigration and Asylum

John Nicholson

 

Legal advisers can point out how Governments have consistently eroded the legal rights of people seeking asylum. This has included cutting legal aid directly and setting up administrative barriers to accessing it. However, opposition that seeks to increase legal aid can sound simply like a demand for money for lawyers – which isn’t true or fair, but also isn’t the best way to make the case for legal help. This briefing suggests that it is more important to see things from the point of view of the person seeking help – and to understand that a system that reduces individuals to statistics is neither saving money nor providing access to justice, but is simply removing people’s civil lawful rights.

 

  1. People seeking asylum have often fled persecution and torture and loss of life of family members. Paradoxically, the people who manage to reach this country can be among the better-off; most refugees around the world flee to neighbouring countries, and millions of people in Africa are refugees in other countries in Africa. That is why many of the people who come to the UK are educated, trained, and willing and able to work. They are poor by comparison with people here, but not necessarily by the standards of their home country.

 

  1. People arriving here who have not got documents are now routinely arrested, taken to court, and locked up straightaway. There is no automatic ability to gain legal help or to lodge an asylum application. (This is under the Asylum and Immigration (Treatment of Claimants etc) Act 2004. Such action may create a further problem if appeals are rejected because applications were not made “as soon as practical”.) Defence solicitors (not immigration specialists) provided by the courts advise clients to plead guilty – and earn an easy court fee for doing so. In Ealing Magistrates Court, there are reportedly 15-30 people a day being sent to Wormwood Scrubs, with routine sentences of 4 months imprisonment. The same may well be happening elsewhere.

 

  1. People who have got documents and who do manage to lodge an asylum application may do so with firms of solicitors who are not committed to supporting people with immigration and asylum concerns. This may be with solicitors in London or the Home Counties. Initial interviews may take place with the Home Office’s Immigration and Nationality Department, without solicitors providing the care and attention required. Mistakes made at these interviews (whether through lack of adequate interpreter facilities or through failure to supply the full relevant information) may damage applicants’ cases later on.

 

  1. Then people are dispersed around the country. They often lose not only the communities they might have been able to gain support from, in London, but they lose their initial solicitors. This means that when they seek legal advice, say from Law Centres or Greater Manchester Immigration Aid Unit or the few positive private practices in the North West, there is an initial problem of getting hold of their papers from their first solicitor.

 

  1. At this point, people may have fled persecution in their own country, may have made a difficult and costly journey to come here, and may be facing social and economic hardship administered through the housing and benefits regime of NASS, Asylum Teams and local authorities in this country. As if this was not enough, they now face the legal and administrative barriers of the Home Office and the Legal Services Commission (LSC). Not only is the law increasingly hostile to asylum claims, not only are there fewer legal grounds for winning cases, not only are there more restrictions in the court process, but also most legal advisers have been limited by the LSC in what they can do, in terms of the funding contract they hold with the LSC.

 

  1. These LSC “contracts” are one degree worse than the contract culture of much of the rest of the public sector. They are one-sided and unworkable. They can be (and are) changed regularly by the LSC. They expect far more work to be carried out than can be claimed for (as contract hours). They limit the amount of time that can be spent providing legal help (a limit that may have been largely occupied by the person’s initial solicitors, leaving little time for the local adviser to carry out any useful work) and then they require further applications for funding to be submitted before legal representation can be provided. The LSC routinely turns these applications down (on the same grounds as they anticipate the courts will reject the asylum claims) and the reasons that they give have been sharply criticised by practitioners as not being accurate or relevant to the cases concerned. In short, the person seeking asylum is fighting not only the laws and the courts, but also the administration of the very body that is supposed to be giving them the legal help they need to win their fight in court.

 

  1. The method of funding is also difficult to explain. It is not that legal advisers are paid piece-rate. Their wages are not dependent on an LSC decision, today, this week, or this month. There is no cash on the table in front of them when they are talking to their clients. What happens is that, clearly evident to the eyes of the person seeking asylum, there is the adviser, their office and their centre. But the adviser is trying to explain that although they have conducted the case, thus far, they cannot do so any more, because any “audit” that the LSC carries out, sometime in the future, will show that this was work that was not approved and for which funding had not been obtained. It is retrospective penalisation that all contract-holders fear, deterring them from taking cases outside the LSC remit here and now. The new Rules for April 2005 institutionalise this retrospective funding approval. Also, under pressure of a huge volume of individual people seeking legal help, it is logical for advisers to help those who may be able to jump through LSC and court hoops rather than those who may fail to do so.

 

  1. For good measure, the Government has also insisted that no-one can give legal help or representation unless they are “accredited” (passed exams in immigration/asylum laws). This feels an insult to people who have been practising, day-to-day, front line, for many years. But it sounds attractive, if it would deter those firms who have seen immigration simply as a money-earner and who have not helped their clients get the best representation, in practice. It follows on from the Office of the Immigration Services Commissioner (OISC), which was designed to track down and root out “crooked” immigration advisers, but whose approval of firms does not in practice guarantee their reliability. In fact, the introduction of the accreditation scheme is resulting in people leaving immigration law work altogether and in reducing the number of advisers who people seeking asylum can go to for help. It is also reducing the availability of advisers, while they are off work undertaking the necessary training and examination courses. Arguably the Government has overdone this, as its original estimate of 4000 trained and accredited advisers, by April 1st 2005, will not be met by a long way. At present (December 2004) there have been only 900 people entered for the exams (never mind whether they have passed or not). What should also be understood is that this level of regulation is unprecedented and does not apply to any other area of law.

 

  1. At this point, the conspiracy between the Government, the Home Office, the administration of the courts, the Government’s funding quango, and the law firms themselves, is complete. The person seeking asylum cannot get fair representation because everyone is involved in an unfair, inefficient, costly and unworkable system, designed to deprive people of their lawful rights.

 

  1. Indeed, the Government’s obsession with “f-words” (“firm, fast, fair”) has been further exacerbated with the new Rules for implementing the Asylum and Immigration (Treatment of Claimants etc) Act 2004. In consultation, the Department of Constitutional Affairs (DCA), supposedly neutral over-seer of the justice system, has stated its intent to be “faster and more efficient without compromising on fairness”. This emphasis tells it all. For example, the Rules will ensure that the Home Office receives the final judgment, from the new single-appeal process, rather than the appellant; this is openly to “assist the Home Office administration of its contact management”, a euphemism meaning helping them remove people without their expecting it.

 

  1. Legal advisers committed to helping some of the most vulnerable people in our society are now abandoning the system altogether. Without defence lawyers provided by Law Centres and progressive solicitors’ practices, the courts may well have to grind to a halt. Adjudicators need solicitors to enable the court process to take place according to the rules and procedures. Without their presence, the bias in the system could be exposed for all to see.  The Government’s policies of immigration control have escalated and fed off racism in the media, and until these policies are removed, people seeking asylum will continue to be deprived of life, liberty and legal representation.

 

January 2005

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