Select Committee on Constitutional Affairs Fourth Report


2.The Government's proposals

Introduction to public funding for immigration and asylum work

5. There are three main strands of legal aid expenditure in connection with immigration and asylum work:

(1)  Legal Help (LH)

Legal Help covers immigration and asylum cases up to the Home Office decision, and continues after that to be used to fund the ongoing administration of cases, such as dealings with the National Asylum Support Service, reporting to immigration, etc. It is subject to a means test and a fairly low threshold merits test called the "sufficient benefit test"[3].

[Current] initial financial limit: £2000 asylum/Article 3 claims[4]; £500 immigration—extendable upon request by the LSC, subject to audit by the LSC when the case has been completed.

(2)  Controlled Legal Representation (CLR)

Controlled Legal Representation covers asylum and immigration appeals before the Immigration Appellate Authority (IAA), and is subject to the same means test, but a more stringent merits test.[5]

[Current] initial financial limit: £1500 asylum and immigration (£2,500 for a limited number of suppliers)—extendable upon request by the LSC, subject to audit by the LSC when the case has completed.

(3)  Certificates of public funding (CPF)

Certificates of public funding cover judicial review, statutory review, and appeals to the Court of Appeal. The grant of funding by this method is subject to a more generous means test, but a more stringent merits test.

[Current] initial financial limit: usually set at £1500 initially for an emergency certificate—extendable upon request by the LSC.

All the above limits include attendances and preparation, letters and telephone calls, travel and waiting, disbursements, but not VAT. There are fixed hourly rates for these different types of work under Legal Help and Controlled Legal Representation, the latter being marginally more generous than the former.

6. The second strand of funding—Controlled Legal Representation—was first introduced in January 2000. Before then legal aid was not available for representation before the IAA,[6] the reason being that the tribunal system was intended to be accessible without the need for legal representation. As a result of the growing complexity of asylum and immigration work, the Government agreed to extend legal aid to include representation in this field.

7. At the same time, legal aid was made subject to tighter regulation by the LSC through 'contracting'. This tighter regulation has restricted legal aid work to specialised (franchised) firms and organisations who satisfied certain quality criteria and who work under a contract with the LSC. Suppliers are restricted to a given number of matter-starts[7] each year. The combination of the limits on expenditure per matter, which suppliers must approach the LSC to exceed, and the limits on the numbers of matter starts per supplier, gives the LSC far greater control and information over its expenditure than it had prior to 2000. This knowledge will increase over the years as older (pre 2000) cases are completed, and reporting obligations on suppliers are increased.

Disbursements

8. The current financial limits for legal aid (listed above) cover profit-costs and disbursements. Disbursements are the incidental expenses incurred by the supplier. In the field of asylum and immigration, such expenditure will most commonly be required for interpreters, expert reports and medical reports and, since 2000, counsel's fees.

The proposals for consultation

9. The consultation paper issued in June 2003 contained four main proposals:

i.  A maximum limit for initial advice under Legal Help equivalent to:

ii.  A maximum limit for appeals work under Controlled Legal Representation:

  • equivalent to 4 hours work to prepare for the appeal
  • in addition, it would be possible to claim the necessary time for attending the hearing
  • the maximum fee for applying for leave to appeal would be limited to £150.00
  • maximum limits would again be set for interpreters' costs and other disbursements[9]

iii.  A Unique File Number which would be the same as the Home Office reference number and which would remain with the applicant even if they changed solicitor.

iv.  A new system of accreditation (separate from that administered by the Office of the Immigration Service Commissioner and that already run by the Law Society) to be administered by the Law Society. Practitioners reaching advanced levels of accreditation would be eligible for enhanced fees (although still subject to the proposed limits on time and disbursement costs).

10. Also issued for consultation, by the Legal Services Commission, was a "draft immigration specification".[10] This document set out the LSC's view of how the DCA proposals might impact on the standard contract for immigration and asylum work (contained within the General Civil Contract). Once finalised, these proposals were intended to be the new contractual terms for suppliers in asylum and immigration work.

Our inquiry

11. On Friday 24th October, following the conclusion of our oral evidence sessions, we received a further joint memorandum from the DCA and the LSC setting out an alternative approach, which differed significantly from the original proposals.[11] On the same day, the Home Secretary announced that, in order to clear the backlog of asylum cases "in the most cost-effective way", up to 15,000 asylum applicants "who sought asylum in the UK before 2nd October 2000" would be granted permission to stay in the UK.[12] As a significant proportion of these cases will have had some or all of their appeals outstanding, the Home Secretary's 'amnesty' is expected to make significant—but as yet unquantified—savings to legal aid expenditure.[13] Although one would expect that the DCA would take account of these potential savings when drawing up its own proposals for legal aid, it has made no mention of it, either in its first memorandum (submitted on 23rd October) or its second memorandum, which was submitted on the same day as the Home Office announcement.

12. We were invited by the Lord Chancellor to examine his original proposals. To fit in with the Government's timetable, we have had to do so on a very truncated timescale. It is therefore extremely regrettable that—despite repeatedly promising to submit a written memorandum to our inquiry—the DCA did not disclose its revised proposals at an earlier stage. Had it done so, we would have been in a position to test the merits of the new proposals with the Department and our other witnesses when they appeared before us for oral evidence. It is all the more regrettable that the DCA's tardy memorandum failed to take any account of the very significant implications of the Home Secretary's announcement. The combination of these factors put us in an extremely difficult position when we came to consider our report. Our evidence, together with the consultation responses, was based wholly on the Government's original proposals. In addition, the DCA's expenditure forecasts, which are crucial to the justification for the proposals, have now been overtaken by the Home Secretary's announcement.

13. The DCA has given the impression, during the course of this inquiry, of considerable confusion on this matter. Its original proposals were hurried and not obviously thought through. The alternative approach, proposed to us at almost the very last stage, is unhelpfully vague. The Home Secretary's announcement of October 24th appears to have taken the DCA by surprise and, as a result, the potential savings which will flow from it have yet to be determined and factored into the equation. We conclude that the Department needs to undertake serious further work before it is able to put any sensible proposals on the table. It is the nature of that work which forms the basis of our detailed recommendations below. Until that work has been undertaken, and a properly considered package of reforms is brought forward, we recommend that the Government place a moratorium on the proposed time and funding limits to publicly funded asylum and immigration work. We believe there should be no delay in addressing the issue of quality representation.

14. We have concentrated in this report on the Government's original proposals for setting maximum limits on the amount of public funding available for individual asylum and immigration cases. However, we have also taken account of the alternative proposals (despite the limited time in which we had to do so) and we have made references to them, where appropriate, in our report. The original proposals for a unique file number and a new accreditation scheme (which have not been revised significantly) do not appear to have given rise to much objection in principle, albeit that some concerns have been expressed about how they will work in practice. We strongly support the proposals for a new accreditation scheme. We trust that the Department will address the concerns as to the detail of the scheme appropriately.


3   The "sufficient benefit" test is satisfied if there is sufficient benefit to the client, having regard to the circumstances of the matter (including the personal circumstances of the client) to justify work being carried out Back

4   Article 3 of the European Convention on Human Rights (scheduled to the Human Rights Act 1998) provides that "no one shall be subjected to torture or to inhuman or degrading treatment or punishment". It may be invoked to prevent a State from removing a person to a country where he would be at a real risk of being subjected to such treatment. Such a claim may be made in addition to a claim for asylum because the obligation under Article 3 is wider than the obligations under the 1951 Refugee Convention relating to asylum seekers Back

5   The merits test is broadly a more than 50% chance of success Back

6   However, as the Department has stated "prior to the introduction of CLR, solicitors were able to undertake the preparation of appeals to the adjudicator and Tribunal under advice and assistance (which was subsequently replaced by Legal Help from January 2000). The only aspects of work that were not funded under advice and assistance were the costs of providing representation at the hearing itself". Ev 28 Back

7   "Matter start" is a technical term used by the LSC to describe each new matter, or work, that a supplier is authorised to start under its contract with the LSC Back

8   The proposed limits for disbursements are set out in the LSC's Draft Immigration Specification, referred to below Back

9   The proposed limits for disbursements are again set out in the LSC's Draft Immigration Specification, referred to below Back

10   Draft Immigration Specification and Draft Immigration Not-for-Profit Specification (LSC, June 2003) Back

11   Appendix 1 Back

12   Home Office Press Notice, 24th October 2003 Back

13   When asked, in an exchange of emails, to put a figure on the potential legal aid savings, the DCA stated that "it is difficult to calculate savings precisely … But a large majority of [the] 12,000 [applicants] have already been through the initial decision making and appeals stages-which of course reduces the legal aid savings which will flow from this measure" Back


 
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