Memorandum by Chris Randall and
Robert Thomas, Specialist Advisers to the Committee
Comments on the Late Memorandum Submitted by the
Department for Constitutional Affairs on the Government's proposed
changes to publicly funded immigration and asylum work
Introduction
On Friday 24th October 2003, the Department
for Constitutional Affairs (DCA) and Legal Services Commission
(LSC) submitted a memorandum to the Committee, which contains
important new material on the subject of the Committee's current
enquiry into legal aid in immigration matters. It is surprising
to see such a radical shift in the DCA/LSC proposals following
on so quickly from their evidence to the Committee. If these matters
were under consideration at the time, it is difficult to understand
why were they not put before the Committee for examination, and
made available for comment upon by other witnesses.
On the same day, the Home Secretary announced that
15,000 principle asylum applicants whose cases pre-dated the Human
Rights Act coming into force in October 2000 would be granted
permission to stay in the UK. A significant proportion of these
cases will have had some or all of their appeals outstanding.
This will have a significant effect on the appeal backlog and
therefore the legal aid budget. It is surprising to see that this
not flagged up in the DCA's projections as to cost.
The new memorandum
The most important new material divides into two
parts:
i. A proposed amendment to the 'hard cap approach'
set out in the consultation (paras 18-20); and
ii. A threat to remove legal help from initial
decision-making in asylum cases (paras 21-24).
There is also some ground-clearing in relation to
other issues which we will address first, following the paragraphs
of the new memorandum.
Para 13 Unique file number
The proposal here still does not seem to deal with
the client who seeks advice about whether to make an application,
and decides not to do so—there is therefore never an application
to the Home Office, and no Home Office reference is ever generated.
Nor does it deal with entry clearance applications, where a lot
of work is done before the file reaches the Home Office (and the
unique number is generated). The fact that some payments are linked
with Home Office decisions does not deal with these particular
problems either.
Para 15 Statistics
The statistics are noted. However, it remains the
case that in 20- 25% of Home Office refusals, the Home Office
decision is overturned. This does not inspire confidence in an
area where decisions are of such import to clients. The reliance
on the new DL/HL figures is a little disingenuous—just because
the Home Office have decided that a 12% tranche of cases no longer
qualify for subsidiary protection does not change the nature of
those cases from meritorious to unmeritorious. Also there may
yet be a knock-on effect on appeals from the DL/HL provisions,
which it is too early to identify, given the recentness of the
policy change.
Para 16 Interviews
This comment still does not address the fact that
it is the Home Office's own protocol which restricts the role
of representatives at interview. It does not address how interviews
would change in the absence of representatives. It is also important
to bear in mind that with the proposed widening of the non-suspensive
appeal jurisdiction many applicants will not have an in-country
appeal to put right matters which have gone awry at interview.
A poor interview, unchecked by the representative, will be followed
closely by removal, and a useless appeal exercised from the country
of origin.
At the moment no time is allowed to a representative
to make representations after an interview if the interview was
preceded (as, at the moment it normally is) by the submission
of a Self Completed Statement of Evidence Form. At the very least,
the Home Office should, where attendance at interview is excluded,
be required to re-instate the possibility of making representations
for a short period after the interview.
At para 19 (ii) it is suggested that attendance will
be allowed at the various fast-track establishments. While this
is to be welcomed in itself, the logic for this is not clear.
After all, the current failure rate of appeals at Harmondsworth
is 294 out of 300. Representation at interview did not change
much there, it seems. It is arguable that it is in the more borderline
cases—which generally are not Harmondsworth material—that
representation at interview is more important.
For non-suspensive appeals, for the reasons set out
above, there is a good argument as to why representation at interview
should be allowed. But, assuming they are to be expanded in number,
why is it only to be allowed at non-suspensive appeals at Oakington?
Para 18 An Alternative Approach
i. It appears that disbursements will no longer
be subject to a cap per se. This is to be welcomed.
ii. The introduction of a 'soft cap' for profit
costs is also to be welcomed, so far as it goes. The next and
crucial question is—how soft is that cap to be? Para 19
(ii) suggests that extensions may be granted by the LSC:-
'In genuine and complex cases where there is a real
prospect of success'
This phrase raises a number of questions:
- A. What does 'genuine'
mean in this context? It is not clear what this adds to the definition.
- B. What does 'complex' mean? The word
is already used in the GCC in an immigration context. Is the same
meaning to be given here?
- C. Is this the introduction of a new [third]
merits test, to be implemented much earlier in the procedure
than the CLR merits test? How will they relate? The terms of this
new test needs to be set out clearly, and then consulted upon.
- D. Is the extension only to be in terms of an
attendance at interview, which is allowed 'in exceptional circumstances'
or are there to other reasons for granting extensions to the threshold?
In any event this approach to interviews does not engage with
the widely expressed opinion that it is impossible to predict
in advance in which cases interviews will go wrong. The LSC have
decided to ignore this inconvenient fact in this new proposal.
iii. Interpreters—the requirement for suppliers
to use only externally accredited interpreters is to be welcomed—however
this will add considerably to the disbursement bill. It should
be confirmed by the Home Office that their own interpreters will
be of the same standard. In the absence (as posited) of both a
representative and independent interpreter at interview, the need
for well-qualified Home Office interpreters becomes even more
important. If the Home Office interpreter does not do a proper
job, there will be no-one from the applicants side who will know.
iv. The taking in-house of Controlled Legal Representation
decisions by the LSC is not unexpected. The fact that any appeal
against a refusal by the LSC to fund a case will be a paper appeal
only is very worrying. The LSC will need to be able to demonstrate
its independence in these circumstances. We may see a growth of
a satellite Judicial Review industry challenging the LSCs decisions
to refuse to fund appeals.
Further developments—para 21-24
This material causes us grave concern.
The Home Office are the initial decision-makers in
immigration cases, and the respondent to any appeals. There is
a clear political imperative in reducing the volume of applicant
numbers. Government has made this clear. A high refusal rate,
sustained on appeal, will, arguably, assist in the Government
in achieving this political end not least via a deterrent effect
on future applicants. The Home Office therefore have an interest
in applicants failing at appeal. Given the added concerns about
rising costs, they also have an interest in cases failing as early
as possible, and in appeals regimes with limited, or no effective,
appeals.
In that context, one would hope to see the organization
which funds applicants representation, doing so at arms length
from the Home Office. This appears to be less and less the case.
One might also think that Government might be in favour of retaining
legal aid for initial applications, in order for lawyers to assist
the Home Office in coming to the right decision at an early stage.
Regrettably that is not the case, and these proposals make that
abundantly clear.
There is a shared budget for asylum and immigration,
the SAF. Suppliers already have concerns, expressed in this consultation
process, about the LSC's commitment to quality, given its volte-face
from earlier guidance for immigration cases. Now it is suggested
that the current determination process may be further changed
to maximize 'effectiveness, efficiency and economy' (para
22). It is of concern, in passing, that fairness and justice are
not mentioned here. It is further stated that 'Officials'
(from which department we do not know) will examine the role that
legal aid plays in achieving high quality decision-making. It
is suggested that improved Home Office decision-making will allow
for a reduction of Legal Help.
This raises a number of fundamental issues.
Home Office administration and the quality of its
decision-making was widely and rightly attacked in the consultation
responses. It is hard to emphasize how far in practice
Home Office procedures would have to improve to reach a standard
where they could command such confidence that LH to applicants
could be cut, even if it were in principle thought to be
a good idea. But in fact the principle clearly points in the other
direction. This is for a number of reasons:-
i. The powers of the Home Office are already
very substantial. To reduce LH at the initial stage, in such a
contentious, difficult, and important field would be quite wrong.
The Council on Tribunals has already suggested, in the context
of appeals that the balance has swung too far towards the executive.
This proposal is to posit a giant leap further in that direction.
ii. Good quality legal representation assists
the Home Office in reaching the correct decision early on ['front-loading'
or 'right first time']. This proposal seems to adopt the view
that legal advice provides no help to decision-makers at all.
iii. It should be recalled that a negative initial
decision will lead more and more to an (ineffective) out of country
appeal. Such applicants might never receive legal advice before
their removal, under these proposals. There will be no opportunity
for the unrepresented applicant to receive legal assistance to
put right those matters which have gone wrong in their application,
before they are once again in the country from which they fled.
There are no other areas of administrative decision-making
concerning similarly important areas of peoples lives, where it
is suggested that those about whom decisions are made who are
impecunious, should have no legal assistance, because of the trustworthiness
of the decision-maker. It should be emphasized that an asylum
claim concerns matters of fundamental human rights, including
the right to life, and that an incorrect decision could result
in death or torture as well as a failure to adhere to international
legal obligations.
Arguably the LSC should be playing a role of defending
the position of the applicant against the encroaching powers of
the executive. Unfortunately, it appears to be doing the opposite.
The effect of the single budget appears to have been to co-opt
the LSC into the executive, just at the time when applicants most
needed it to stand firm against it.
It is of yet more concern that such fundamental changes
could be introduced merely by regulation. The Committee has a
particular responsibility in these circumstances to look at these
matters further, whether in the context of this investigation,
or a future one.
Para 24 suggests that lawyers will be involved in
these developments as they progress 'to ensure they can deliver
a good legal aid service to their clients' (para 24). This
makes a welcome change to the complete, and telling, lack of involvement
in the LSC's proposals considered by the Committee thus far. But
it does appear to rather beg the question as to whether such a
service could be delivered in those circumstances.
Chris Randall & Robert Thomas
Specialist Advisers to the Constitutional Affairs
Committee
28 October 2003
