Evidence submitted by the Department
for Constitutional Affairs and the Legal Services Commission
Immigration and asylum: the government's proposed
changes to publicly funded immigration and asylum work
Introduction
1. This memorandum is submitted jointly by the Department
for Constitutional Affairs (DCA) and the Legal Services Commission
(LSC).
2. The LSC's evidence to the Lord Chancellor's Department
Select Committee Inquiry into Asylum and Immigration Appeals was
submitted in May 2003 (published on the Committee's website, available
at www.parliament.uk). It sets out the background facts and issues
concerning the provision of legal aid to asylum seekers throughout
the asylum process, and the steps taken by the LSC to improve
quality and control costs.
3. Further analysis of the issues is set out in the
DCA Consultation Paper "Proposed Changes to Publicly Funded
Immigration & Asylum Work" (CPO7/03, 5 June 2003). Our
main proposals in that document were:
- The introduction of a Unique
File Number for each case. Through the use of the unique file
number we will be able to monitor costs of individual cases and
also monitor any duplication of work. We believe that unnecessary
duplication of work has significantly contributed to the massive
acceleration in costs of providing asylum and immigration advice.
- Allowing each client up to a maximum number of
hours of legal advice in connection with his or her immigration
or asylum case (5 hours for legal help and 4 hours for representation
at appeal). The maximum hours or costs limit would attach to the
client throughout their case and in the event that the client
transfers representative then the new representative would only
be funded to provide the remaining balance of the client's allocated
hours of legal advice. Maximum limits would be imposed for disbursements.
- These changes would be introduced from January
2004. We emphasised that we would seek to make the client
more aware of his or her rights to and any limits on legal advice
through the use of leaflets which would be available in the principal
languages and we would require suppliers to ensure that clients
were aware of any maximum limits on the publicly funded advice
they could receive.
- To address continuing issues of poor quality
advice, we also proposed to introduce a system of accreditation.
We proposed that accreditation will apply to all those providing
advice on immigration and asylum matters through public funding.
Subject to any transitional provisions then payment out of public
funds would only be made to individual advisers who are accredited.
- In order to develop quality representation in
the area of asylum and immigration, we therefore proposed to recognise
the provision of exceptional, quality advice by the introduction
of enhanced fees to those suppliers who offer clients a consistently
high level of service and who have obtained advanced levels within
the accreditation scheme. The accreditation system would have
four levels. We proposed that the accreditation scheme will be
introduced from January 2004, and will be compulsory from December
2004.
4. The Consultation paper was issued on 5 June and
the consultation closed on 27 August. 260 replies were received.
There were serious concerns with the proposals to put a rigid
limit on the amount of time spent on immigration and asylum cases
to 5 hours for legal help work and 4 hours for appeals. Respondents
felt that the imposition of these caps would drive out many good
representatives from publicly funded work. In general, they feared
the caps would encourage the use of standard prepared statements;
that they did not allow flexibility for complex and difficult
cases that arise; and that reputable good quality suppliers would
simply not be prepared to undertake work under these conditions.
5. Respondents felt that this would cut across the
efforts to increase the availability of quality assured providers
by introducing compulsory accreditation. Despite this, there was
general support for a move towards a more robust accreditation
scheme with accreditation of individuals, rather than firms, and
the idea of enhanced rates being available to accredited providers.
There were also calls for a more clear, fair and rapid system
for the removal of unscrupulous or incompetent suppliers if they
are found to be under performing.
6. There was widespread approval for the single identification
number for asylum applicants, although some respondents commented
that there were often delays in the allocation of individual reference
numbers by the Home Office, so caution was advised when deciding
which number should be used.
7. Respondents also made many suggestions about where
savings might be achieved and were critical of some Home Office
systems and procedures. The Committee has been provided with a
summary of the responses to consultation.
8. In parallel the LSC issued draft contract amendments
for consultation which were designed to show in detail how the
package of measures would be implemented. That consultation closed
at the same time as the main consultation.
9. During and since the consultation, both the DCA
and the LSC have had discussions with a range of practitioners
in the field and with their representative bodies, as well as
considering the formal written responses.
Accreditation
10. Broadly speaking, there was support for the proposal
to introduce a compulsory accreditation scheme for all publicly
funded immigration and asylum casework. The main concern was that
the time limits also proposed in the paper would not allow for
good quality work to be done and an accreditation scheme would
therefore not achieve its aim. This is addressed below. Respondents
also commented on the need to ensure that the LSC's scheme is
based as far as possible on existing schemes run by the Office
of the Immigration Services Commissioner (OISC) and the Law Society
Immigration Panel.
11. The LSC has since published a more detailed paper,
which has been discussed with the OISC, the Law Society and the
Advice Services Alliance. We have agreed that there will be three
levels of accreditation to reflect varying degrees of competence
and experience. These levels are similar to the OISC's levels
and the Law Society's Immigration Panel requirements. We propose
that all advisers will sit a written examination, conduct a mock
interview and draft a statement as well as submit a portfolio
of work for discussion at interview. Publicly funded work will
be restricted at the more junior levels until advisers have successfully
completed the assessments outlined above.
12. At present we are finalising the details of the
skills and competences required for each level of accreditation
and, subject to final decisions on whether to go ahead, will then
invite the Law Society to recruit assessment organisations. We
would hope to have these in place by the end of December and the
scheme ready to start from April 2004. Due to the high number
of advisers that will require accreditation we expect that we
will not be able to restrict publicly funded work to accredited
advisers only until 12 months later.
Unique file number
13. There was also support for the introduction of
a Unique File Number in principle. This will enable better control
of duplicated work and unjustified changes of solicitor. Many
respondents expressed concern about practical problems in obtaining
a unique client number from the Home Office. At present there
is not always a client reference number allocated on registration
of an asylum claim. This would be preferable as it would enable
the LSC to track asylum applications from the outset. Discussions
with the Home Office are exploring this further. However, it seems
that Home Office is prepared to ensure that all its initial decision
letters bear the Home Office client reference number. As it is
proposed that the first claim for payment to the LSC cannot be
submitted in cases which proceed to a decision until after that
decision has been made, it will be possible to submit the reference
number with the claim. This could be brought in for next April,
if not earlier. The LSC will anyway expect all firms to check
whether a client has received previous legal advice for their
case, as that will count towards the limits on advice described
below. If firms fail to take reasonable steps to check whether
the client has received previous legal advice, the LSC may disallow
costs.
Limits on work
14. Most respondents were firmly of the view that
the times proposed were insufficient to deal with genuine and
complex cases, and made no allowance for exceptional cases, particularly
those including traumatised asylum applicants who had difficulty
in communicating the facts of their case. The evidence that many
good suppliers would cease carrying out the work if no flexibility
is allowed is convincing. With regard to disbursements, all respondents
stated that the proposed limits were too low with many expert
reports being in the region of £500 to £750. On other
issues, NASS was viewed as a particularly complex area of work
and most respondents felt that this work should not be restricted
only to those lawyers with a welfare benefits contract - due to
a lack of supply of such lawyers. In fact this is not the intention,
and no changes are proposed to current rules. In non-asylum cases,
most respondents did not accept that immigration application forms
were simple form filling. They referred to the length and complexity
of the forms and the ability of many clients to complete them
without legal advice. In addition, many expressed concern about
non-English speaking clients who required interpreters. Attendance
by legal representatives and interpreters at substantive asylum
interviews was a major issue with most respondents claiming this
is necessary and referring to existing best practice.
15. On the other hand, both DCA and LSC remain firmly
convinced that there is waste in the legal aid system. The great
majority of asylum seekers have representation at the initial
decision-making stage, irrespective of whether their case is likely
to be successful or not. In the first quarter of 2003, some 26%
of cases were granted either refugee status (about 7%) or exceptional
leave to remain (19%). From 1 April this year, exceptional leave
to remain was replaced by humanitarian protection/discretionary
leave to remain. The figures for the second quarter of this year
show that the proportion of applicants granted refugee status
remained at 7%, but those granted humanitarian protection/discretionary
leave fell to 7%, making 14% overall. Of those whose cases are
turned down initially, about 77% appealed in 2002. The current
success rate before the adjudicator is about 21% of those who
appeal.
16. Furthermore, too many suppliers send poor quality
outdoor clerks to attend asylum interviews whose presence adds
little value. There are often two interpreters present, one provided
by the Home Office and one by the lawyer.
17. Since April 2003, lawyers seeking to commence
judicial or statutory review proceedings have had to apply to
the LSC for a certificate of funding, rather than use their devolved
powers to self-grant emergency funding. The effect of this has
been that the proportion of applications for certificates for
immigration and asylum cases granted by the LSC has fallen from
83% in 2002/03 to 34% this year. This supports the view that there
is waste in the system and continued action to improve controls
is necessary.
An alternative approach
18. Although no final decisions have been made, the
DCA and the LSC see the need for an alternative approach, which
is intended to bear down heavily on expenditure on applicants
whose cases are unlikely to succeed.
19. The thinking of the DCA and the LSC is as follows:
i. There should be a financial threshold for
preparation time allowed for the generality of cases up to the
initial decision for asylum cases. Once this threshold is reached,
suppliers will only be allowed to proceed with prior authority
of the LSC. A threshold for preparation time will also be applied
to asylum appeals, requiring LSC authority to exceed. A threshold
would also apply to non-asylum immigration cases. Professional
disbursements and VAT will not count towards this threshold. A
limited number of firms, where we are confident work is to a high
standard, would be allowed devolved powers to self-grant extensions
up to a higher figure.
ii. Extensions are only likely to be granted,
on application to the LSC, in genuine and complex cases where
there is a real prospect of success. In such cases attendance
at interview may be authorised in exceptional circumstances, but
only by the case-worker or the firm's immigration supervisor,
not an agent or outdoor clerk. Once the accreditation scheme is
implemented other accredited representatives will be allowed to
attend. Attendance at interview will always be permitted for fast
track processes such as those operated at Oakington and Harmondsworth.
iii. On interpreters, it is proposed to pay a
set hourly rate for attendance but to restrict payments for travel
or waiting time. The LSC will investigate doing away with separate
interpreters at the interview. The LSC will also move to requiring
all suppliers to use interpreters who are accredited with or members
of recognised bodies such as the Institute of Linguists.
iv. The devolved power to grant legal representation
for appeals will be removed in all cases other than those where
the LSC is confident that the supplier has a good track record
in bringing cases which succeed. Applications will have to be
submitted to the LSC, which will deal with them as quickly as
possible. Appeals against refusal of legal aid will continue to
be allowed, but these will be considered on the papers only. In
some cases where legal aid is refused, suppliers will have to
file the appeal against refusal of the asylum claim before an
appeal against refusal of legal aid can be determined. In these
cases, retrospective funding will be allowed if legal aid is subsequently
authorised.
v. The LSC will also limit choice of representative
in locations where fast procedures are in operation to dedicated
or duty representatives authorised under contract. This will prevent
touting and poaching of clients at centres such as Oakington and
Harmondsworth.
vi. The LSC will issue rules as to when experts'
reports can be commissioned and will set maximum fees. This will
form a separate consultation this autumn.
20. Subject to approval being given for this package,
the intention would be to implement the proposals on the new thresholds
in January 2004. The restrictions on choice of representative
in locations where fast procedures are in operation, use of interpreters
and removal of devolved powers to grant representation for appeals
would come in for the new three-year contracts from April 2004.
Further developments
21. The asylum and immigration system is a shared
responsibility between the Home Office and the DCA. This is reflected
in a shared budget for asylum and immigration—the Single
Asylum Fund—and a joint Programme Board to manage the asylum
process. Joint programme arrangements have been in place for the
last three years and the single budget from the start of the 2003/2004
financial year. They reflect the reality that an effective and
fair asylum and immigration system must be considered as a single
system, not as a series of discrete operations. Nevertheless the
differing roles and duties of the Home Secretary and the Secretary
of State for Constitutional Affairs, and of their two respective
Departments, are recognised and maintained within this structure.
22. As part of this shared responsibility the DCA
and the Home Office continually monitor the performance of the
system, in particular against targets set under the asylum Public
Service Agreement. The two Departments are currently examining
the initial decision-making stage of the asylum process, with
particular regard to the role that legal aid and publicly funded
practitioners play. Officials are examining a number of inter-related
issues. These include the possibility of making changes to the
current process to maximise effectiveness, efficiency and economy.
Officials will also examine the role that legal aid plays in achieving
high quality decision-making processes. In principle we want to
explore a system where further improvements in decision-making
by the Home Office will allow a reduction in Legal Help. This
involves re-thinking the levels of legal aid in the context of
Home Office decision-making.
23. This work may lead to changes in the way that
legal aid for asylum seekers is delivered. If the Government concludes
that such changes are desirable, there may need to be changes
to the scope of legal aid. That requires regulations under the
Access to Justice Act 1999 subject to the affirmative procedure.
Consequential change to contracts would also require consultation
with the professions and a period of notice. This work is not
yet concluded, but the Committee should be aware that the Government's
proposals on the control of legal aid before the appeal stage
may be further amended as a result of this work.
24. The LSC will involve asylum lawyers as the work
progresses to make sure that the most capable lawyers are confident
that they can deliver a good legal aid asylum service to their
clients.
Department for Constitutional Affairs
Legal Services Commission
24 October 2003
