Select Committee on Constitutional Affairs Fourth Report


Appendix 1

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:

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


 
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