Written evidence submitted by the Law
Society and the Refugee Legal Centre
Q64 Success rates
(a) Success rate at Refugee Legal Centre
Last year the RLC won 36% of the cases it presented.
(b) Success Rates for selected individual firms:
| Firm | Stage
| Success Rate |
| Fisher Meredith | Appeal |
75%
Of those which are unsuccessful, the majority have either been given leave to remain after further representations, or are still in the system awaiting consideration.
|
| Wilson & Co | Final Status
(including appeals & those granted at initial application)
| Refugee Status—72%
ELR—5.7%
None/Not Known/Ongoing—18.9%
|
| Bindman and Partners | Appeal (Asylum/Human Rights)
| Won 63%
Lost 15%
Still continuing: 22%
Of which:
Our application to the IAT granted: 9%
HO application to the IAT granted: 6%
Pending at the Court of Appeal: 4%
Pending determination of application to the IAT: 3%
|
| Wesley Gryk & Co | Appeal
| 80-90% |
(c) Dismissal Rates for Appeals
Figures obtained from the IAA; Dismissal rates for Appeals at
Adjudicator stage (Data provided by the Legal Services Commission).
March-August 2003
N.B:
— The data provided is for appeals at Adjudicator
stage only;
— Not all of the firms named have had costs assessment
audits yet;
— The IAA gives the names of firms bringing appeals,
but does not specify whether the appeal was publicly funded or
not. The LSC when compiling the figures have therefore assumed
that every appeal brought by a contracted firm was publicly funded,
although some of these may in fact have been private cases;
— The figures provided are a % of the total appeals
brought. Some of the firms whose data is included have only brought
one or two appeals in the 6 month period; others have brought
far more, which will reduce their % rate of success considerably.
— The overall dismissal rate at adjudicator stage
is 72%.
| Category: | % Appeals Dismissed
| % of Total Appeals Brought |
| Category 1 | 73 | 29
|
| Category 2 | 71 | 46
|
| Category 3 | 77 | 13
|
| Firms without a cost assessment rating |
68 | 13 |
Q112/113 Importance of Psychiatric and Expert Evidence
in Asylum Cases
(a) Psychiatric Evidence:
We note Mr McKee's comments on the value of psychiatric evidence
in asylum appeals, but the fact remains that the Immigration Appeals
Tribunal have, in a series of cases, insisted upon the production
of medical reports where, for example, torture is alleged. In
Justin Surendran Devaseelan [2002] UKIAT 00702 (notified 13/03/2002),
the Tribunal found that the representative has an obligation to
always produce a medical report to substantiate scars where it
is claimed they engender a risk or prove past ill-treatment.
The case of Caroline Ngwabi [2002] UKIAT 06243 (notified:
27/01/2003) underlined the Tribunal's view that specialist medical
evidence is required (in doing so it rejected the evidence of
a rape counsellor).
In the case of Bled Krasniqi [2002]UKIAT02158 (notified:
25/06/2002) the Tribunal suggested that medical experts should
spend a long time with their patients before being in a position
adequately to diagnose PTSD.
All of these cases underline the crucial importance of specialist
medical evidence. Medical reports may be expensive but it is simply
not an option to not produce them in appropriate cases. To fail
to do so would be to bring a representative in conflict with their
professional obligations. Clearly, as both Alison Stanley and
Judith Farbey stated before the Committee, it is important that
appropriate experts are properly instructed.
In regard to the Krasniqi case (which relates to Mr Mckee's
comments) we would only add that there is significant tension
between the timeliness of the decision making process and the
requirement that experts spend a long time with patients before
making a PTSD diagnosis. In part, this underlines the importance
of front-loading work at the earliest stages of the application,
something not consistent with the proposed five hour time cap.
In order to illustrate the importance of timely production of
medical and psychiatric reports at the pre-decision stage we refer
you to the following case study which was included in the Law
Society's submission to the Legal Services Commission in response
to their proposals:
"The case concerned two Kuwaiti brothers, who arrived
separately in the UK and whose cases were subject to a different
timetable. One was physically disabled as a result of being thrown
from a third floor roof by Kuwaiti soldiers following the first
Gulf war. After three attempts to take a statement it became clear
that he also suffered from memory and concentration problems and
exhibited other typical symptoms of post traumatic stress disorder.
A psychiatric report (costing £700) was obtained which
confirmed the diagnosis, that the client was suicidal and needed
active medical intervention. The report explained gaps and apparent
discrepancies in the client's statement.
The client gave evidence in his brother's appeal and was found
by the adjudicator to be wholly credible. The brother's appeal
was allowed, and eventually the sick client was also recognised
as a refugee by the Home Office without going through the appeal
process.
The £700 spent on the psychiatric report then obviated
the need for an appeal."
(b) Expert Reports:
Although we were not asked to comment on the importance of country
expert reports the same issues arise: the Tribunal does not permit
reports prepared for another case to be used in others. (Ueal
Yosef Yemane [2002] UKIAT 07057 (notified 6/3/2003). The Home
Office CIPU reports are frequently inaccurate, out of date or
simply silent on some issues. In the absence of an independent
country information resource such as occurs in Canada, a properly
instructed expert commenting on specific issues can be crucial
in assisting the court to reach a just decision.
Q115 Effect on Asylum Seekers
We note that, in response to question 115, John Scampion said
that an inevitable consequence of the proposals is that asylum
seekers will have to turn to the voluntary and charitable sector
for assistance. However, larger suppliers of representation in
this sector will be almost exclusively be funded by the LSC. They
will be subject to the same constraints and pressures as solicitors
and it is unlikely therefore that they will be able to provide
any effective response. Smaller providers, not funded by the LSC,
usually suffer from a dearth of resources and similarly will not
be able to provide any effective response.
We should add one matter in regard to the not-for-profit sector
which was not raised in oral evidence with John Scampion. As we
note above, the larger suppliers in this sector have LSC funding
and would be subject to capping. The OISC's position is that the
proposed maximum time limits "are not sufficient to provide
competent advice." But further, its response highlights
a danger to organisations like the RLC that are funded by the
LSC and are regulated/exempted by the OISC. It states that it
may have to withdraw authority to practise to organisations that
cannot provide competent advice because of the implementation
of the maximum time limits (see paragraph 47 of its response).
Q130 Capping
There appears to be some misunderstanding around the need for
a cap or threshold as a mechanism for dealing with poor performers.
The Law Society thought it might be helpful to the Committee for
us to set out the position as it is now and as it would remain,
whether or not a cap or threshold was introduced.
Under current arrangements, suppliers have no automatic entitlement
to payment in respect of hours of work claimed. The Legal Services
Commission (LSC) can and do scrutinise a sample of files, including
through peer review where appropriate, to ensure that the costs
claimed reflect relevant work undertaken on the case.
If the LSC assess the amount claimed as inappropriate, the excess
is disallowed and where necessary, recovered from the supplier.
This arrangement would continue, so that in future, costs could
be disallowed—even within the capped limit—following
scrutiny of the file by the LSC.
The LSC uses its close scrutiny of costs claimed by suppliers,
to categorise them into 3 categories. Where suppliers are assessed
as Category 3 (ie. those whose claims for costs are at variance
with the LSC's assessment by over 20%) costs are recouped from
all of the supplier's claims for costs in that category and not
limited only to the sample of files audited. This arrangement
is now to be introduced in respect of Category 2 suppliers (ie.
those whose claims for costs are at variance with the LSC's assessment
by 10% to 20%).
Following categorisation, contracts have already been withdrawn
from a number of suppliers and the LSC plans to remove contracts
from all Category 3 suppliers in London, as part of the next contract
bidding round. This is likely to result in an immediate step increase
in the quality of supply.
The proposed accreditation scheme should assist to identify the
best suppliers and help bring those who need to improve, up to
an acceptable standard.
Law Society and Refugee Legal Centre
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