Evidence submitted by Citizens Advice
1. INTRODUCTION
This paper represents the submission by Citizens
Advice to the inquiry by the Constitutional Affairs Committee
on Legal Aid for Asylum Appeals, announced on 10 December 2004.
Citizens Advice is the co-ordinating body for
the 480 Citizens Advice Bureaux in England, Wales and Northern
Ireland. [1]Currently,
23 Citizens Advice Bureaux hold a contract in immigration with
the Legal Services Commission and are thus able to offer advice,
assistance and representation in relation to asylum and/or immigration
appeals.
In this submission, we address the following
issues: retrospective public funding; prospects of success; and
the effect on access to justice.
2. RETROSPECTIVE
PUBLIC FUNDING
If implemented, these proposals would introduce
a system of retrospective funding for challenges to decisions
of the Asylum and Immigration Tribunal, with legal aid being awarded
(or not) at the end of the process when the appeal decision has
been reconsidered.
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. This means clients
with genuine cases and where injustice has been done will find
it increasingly difficult to find representation.
3. PROSPECTS
OF SUCCESS
The proposals include a merits test; the Judge's
decision as regards whether the legal advisor gets paid will be
based on the prospects of success at the time the review application
is made. It is possible (at least in theory) for an unsuccessful
case to be funded. The proposals set out two options for the wording
of this test. Citizens Advice does not support either option.
However worded, the proposed test will make it harder for a vulnerable
and frightened client group to get access to justice.
Firms of solicitors will be reluctant to take
on many if any of these cases as they too require work to be financially
viable. Citizens Advice Bureaux will be unable to offer representation
because of the lack of certainty around whether or not the time
spent on the review application will be allowed to count against
the contract they have with the Legal Services Commission for
the delivery of publicly funded legal services.
Citizens Advice Bureaux have to produce 1,100
hours of direct casework time (as defined by the Legal Services
Commission) for every casework post funded. They do not get paid
on a case by case basis as legal aid solicitors do. If a Citizens
Advice Bureau were to pursue a review application on behalf of
a client which takes 20 hours of work but the Tribunal retrospectively
decides that it will not award funding, that is time that can
no longer be counted towards the 1,100 hour total. This increases
the likelihood that the Citizens Advice Bureau will under-perform
on the overall contract and risk losing part or all of its funding.
No Trustee Board is going to agree to Immigration caseworkers
taking on many, if any of these appeals, given the attendant risks
to funding. The fact that the DCA is offering a costs uplift if
you are awarded legal aid does nothing to make it more likely
that Citizens Advice Bureaux will be able to take the risk in
the first place. Citizens Advice Bureaux will have no choice but
to limit the services it offers clients to those which ensure
they retain their funding; this will exclude most onward appeals
from the new Asylum and Immigration appeals.
4. THE EFFECT
ON ACCESS
TO JUSTICE
Citizens Advice fears that clients will face
real practical difficulties in getting someone to represent them
if these proposals are adopted. If the client receives an inadequate
service both in relation to their original application and any
subsequent appeal to the new Asylum and Immigration Tribunal,
or those decision makers simply get it wrong, they will then face
the impossible task of persuading someone to apply for a review
or reconsideration (as appropriate) on their behalf at risk as
to costs. We do not see how this fits with any reasonable person's
definition of justice or provides access to justice.
These proposals do not address the core problem
which is that too many cases go to appeal because the original
case was inadequately prepared and presented by the initial representatives.
Citizens Advice Bureaux come across cases where appeals are essential
because insufficient effort was made in the course of the original
application to collect evidence (or account for its absence),
interpreters were either not used at all or the wrong language
was used, or clients did not understand the process or what was
expected of them. For example, the failure to take a sufficiently
in depth statement, by probing the client for dates, exact locations,
sequence of events, names and relationship to the client of those
involved etc, can rebound on a client with disastrous consequences.
Appeals can and do fail because Adjudicators interpret lack of
detail as implying lack of weight and this in turn undermines
the client's credibility
The time restrictions on the amount of work
that can be done at the Legal Help level and under Controlled
Legal Representation that were introduced in April 2004 run counter
to the need to ensure that a thorough job is done at this initial
stage. Although it is possible to apply for time extensions, this
in itself takes time and such applications are often only granted
in part. It would help if these initial casework limits were revised
to allow a 10 hour initial limit for non Asylum work and 20 hours
for Asylum work. Greater use of peer review by the Legal Services
Commission should ensure that this time is well spent.
The Legal Services Commission aims to improve
the quality of publicly funded services in Immigration and Asylum
work via the introduction of the Immigration Accreditation Scheme
(IAS). This accreditation will become compulsory for all advisors
performing Immigration and Asylum legal aid work from 1 April
2005. Citizens Advice hopes that this will boost the quality of
the service to clients and in particular of the original appeal
against the immigration decision taken by the Home Office. We
hope the Department for Constitutional Affairs will monitor the
effect of introducing of the Immigration Accreditation Scheme
before pursuing these proposals any further. Citizens Advice has
yet to evaluate Bureaux experience of this scheme and may have
further comments to make on the IAS in due course.
Sophie Brookes
Legal Services Policy and Development Manager
Citizens Advice
10 January 2005
1 Citizens Advice Bureau in Scotland belong to a separate
organisation, Citizens Advice Scotland (CAS) Back
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