2 Retrospective funding
10. Despite the fact that the new Asylum and Immigration
Tribunal is scheduled for implementation in April 2005, the proposed
new arrangements for funding appeals were finalised at a very
late stage. On 23 February 2005 the Department produced a final
submission to the Committee. On the same day, the Department laid
Regulations before the House setting out its preferred option
(Option 1). The Department's submission made two other substantive
amendments to the proposals. It indicated that suppliers would
be paid at the lower CLR rate for applications before the High
Court and that the Department were proposing a 35% risk premium
for suppliers willing to undertake cases under this scheme (see
section 4 below).
11. The Department has acknowledged that a large
number of changes have already been implemented over the past
year, many of them in order to reduce abuse. These include the
following:
- Introducing a financial threshold
of five hours for the initial decision-making process, which can
only be exceeded with prior authority of the Legal Services Commission
(LSC);
- Ensuring that no legal aid work is undertaken
in asylum appeal cases without prior approval from the LSC;
- Introducing exclusive contracts for clients subject
to Home Office fast track processes to reduce unnecessary changes
of solicitor;
- Applying financial funding limits to individuals
irrespective of how many times they changed suppliers and introduction
of the Unique Client Number to help track clients and reduce unnecessary
duplication of work;
- Removing from the scope of legal aid the attendance
by a legal representative at the Home Office interview apart from
in exceptional circumstances;
- Responsibility being taken over by the LSC from
the Home Office for the funding of the Immigration Advisory Service
and Refugee Legal Centre which means that £15m of public
funds is now focused on clients that meet the LSC eligibility
criteria;[6]
- Introducing a compulsory accreditation scheme
for all lawyers who undertake publicly funded immigration work.
12. Given the host of recent Government initiatives
in response to the issue of asylum and immigration, we are unhappy
that practitioners have not been given the opportunity to absorb
previous changes before another controversial funding policy is
introduced. The background of constant change means that it will
be difficult to see which initiatives are successful. The continual
introduction of funding restrictions is likely to deter practitioners
from representing people in immigration and asylum appeals.
13. Following the enactment of the Asylum and
Immigration (Treatment of Claimants) Act 2004, the Government
moved from a two stage appeal process, subject to a statutory
review by the court, to a single tier (to be known as the Asylum
and Immigration Tribunal), which, following the removal of the
'ouster clause', would be subject to review by the court.
14. The Government's proposals to introduce retrospective
funding to legal aid would only apply in the context of asylum
and immigration appeals. Its use is unprecedented. The system
has not been previously trialled. The Department has indicated
that in its view the asylum and immigration jurisdiction is unique
in that there is an incentive for an appellant to delay proceedings,
since by doing so he or she will not be removed from the country.
Appeals which are exercisable from the UK do generally have suspensive
effect postponing any power to remove. The Department states that:
Under the current process appeals are handled within
a multi-tiered structure. It has the potential to be time consuming
and open to systematic abuse both within the Immigration Appeal
Tribunal's jurisdiction (IAT) and through access to the higher
courts. Under the current process it can take 65 weeks from the
receipt of the asylum application by the Immigration and Nationality
Directorate (IND) through to promulgation of the IAT's determination
following a substantive hearing.[7]
The Department has admitted that:
The introduction of a single tier of appeal coupled
with a new system of higher court oversight will reduce the opportunities
for the process to be exploited. Processing times will be faster
and cases will reach finality sooner. Not only is this in the
interests of the taxpayer, but also the genuine asylum seeker.[8]
15. The initial concern raised by the Department
overlooks three important points. First, as it has acknowledged,
the asylum and immigration appeals jurisdiction is being fundamentally
changed, since a tier of appeal will be removed upon the establishment
of the AIT (although it is still possible to apply for a limited
review). This is a substantial change and also affects the validity
of a number of other statistics presented by the Department. Second,
incentives for delay are not limited to asylum and immigration
proceedings; they can be found in other areas of law.[9]
Third, there is a significant number of immigration appeals where
the appellant is abroad and there is therefore no incentive to
delay.
16. In our view, it is wrong to blame all the delays
on the appellant. In our previous report on asylum appeals[10]
we noted that much of the delay was due to the failure of the
Home Office to take initial decisions in a reasonable time and
to poor initial decision making. In that context, we note the
recent report of the Public Accounts Committee Improving the
speed and quality of asylum decisions in which they concluded
that up to £500m might have been saved if the Home Office
had been able to put in place sufficient staff and infrastructure
to meet the significant rise in asylum applications in 1999 and
2000. Instead the Government allowed backlogs to accumulate while
decisions were awaited, making the eventual removal of unsuccessful
claimants more difficult.[11]
17. The new Appeals Procedure Rules impose even shorter
time limits than those currently in force. There is a ten working
day time limit to appeal against an initial refusal and a requirement
on the court to list the case within 28 days in most cases, with
a 10 day time limit to apply for reconsideration. A case can only
be reconsidered once. Thus where a claim was found to be abusive
and rejected after a first appeal, it would not add substantially
to the time spent dealing with a case.
18. When considering whether there is a need for
these proposals, it is also worth noting that there is already
in force a scheme whereby a High Court judge, on an application
by way of Statutory Review, can indicate to the Legal Services
Commission that a case with no merit has been brought before it.
The LSC then has discretion as to whether to pay the supplier.
Furthermore, since the April 2004, no appellant can receive CLR,
unless it has either been granted by the LSC, or granted by one
of the very few suppliers who have been granted devolved powers
by the LSC.
19. JUSTICE were one of a number of witnesses who
raised substantial objections to the proposed new funding mechanisms
and particularly highlighted the fact that it is only appellants
in asylum and immigration cases who have been targeted, stating
that "if the DCA seriously believed that this was the way
to proceed, why is the method of retrospective decision not applied
throughout the Community Legal Service scheme?"[12]
20. In its paper in response to the Department's
consultation exercise, JUSTICE goes on to note that:
If firms conducting asylum work are operating inappropriately,
why does the [Legal Services] Commission not properly carry out
its responsibilities for ensuring that the scheme is working properly?
Why is a potentially penalising provision being introduced when
the same objective could be achieved more conventionally and effectively.[13]
21. Concerns were raised by witnesses who argued
that the introduction of retrospective funding amounted in effect
to a gamble by the provider, in many cases either a small business
or a charity. Citizens Advice summarised the problem in its submission,
when it commented that:
Citizens Advice Bureaux with Immigration contracts
will be asked to bear the risk of not being paid for their work
if they pursue a case which the Tribunal or Court hearing it decides
is without merit. The Department for Constitutional Affairs says
the purpose is to "encourage lawyers to assess the merits
of a case thoroughly and reduce the number of weak challenges
of AIT decisions". Most Citizens Advice Bureaux Trustees
are not going to agree to their staff doing work that they may
or may not get paid for. By their very nature, Citizens Advice
Bureaux have to monitor their finances very closely; there is
little margin for error with budgets and Trustees could not approve
work that had this level of risk attached to it. We anticipate
that firms of solicitors will take a similar approach.[14]
22. Retrospective funding is only being proposed
in asylum and immigration cases. Its introduction is likely to
have a negative impact on appellants and lawyers, since the uncertainty
involved will mean that even good quality suppliers may have to
make a commercial assessment of the level of risk they are taking
and may well refuse to represent some clients who have reasonable
cases.
6 Ev 48-49, para 4 Back
7
Ev 47, para 3 Back
8
Ev 49, para 5 Back
9
See, for example: Constitutional Affairs Committee, Family
Justice: the operation of the family courts, Fourth Report
of Session 2004-05, HC 116-I, in which we discuss the use of 'tactical
delays' in family proceedings Back
10
op cit Back
11
See Committee of Public Accounts, Improving the speed and quality
of asylum decisions, Fourth Report of Session 2004-5, HC 238,
p 5, Conclusions and recommendations Back
12
JUSTICE response to the DCA Consultation Paper CP(L) 30/04 Back
13
ibid Back
14
Ev 21, para 2 Back
| 
