Evidence submitted by The Law Society
EXECUTIVE SUMMARY
1. This paper contains the Law Society's
evidence to the Committee concerning new proposals by the DCA
for legal aid funding of applications for reviews of decisions
of the new Asylum and Immigration Tribunal. The main proposals
are that there will be a new, more stringent legal aid merits
test to be assessed at the end of the case by the Tribunal which
will then retrospectively decide whether legal aid should be granted.
The stated aim of the proposals is to prevent the new Tribunal
being overwhelmed with weak applications.
2. The Law Society opposes these changes
for the following reasons:
— The proposals are unnecessary as
there are already adequate controls on merits which are exercised
by the Legal Services Commission, the judicial "filter"
system and experienced solicitors who will be subject to mandatory
accreditation from April 2005.
— There are serious access to justice
implications as reasonably arguable cases may be excluded from
legal aid eligibility with potentially severe consequences, particularly
for those seeking asylum. It is also likely that a number of legal
aid practitioners will withdraw from this area of work as they
will not be able to bear the financial risk of taking on such
cases.
— The proposals are premature as the
new appeal system is untested. The quality of decision making
which may generate either greater or fewer applications for reconsideration
is not known. In any event the number of appeals in the system
must fall significantly because of the substantial decline in
the number of asylum applications.
— The proposals are derived from an
enabling provision in the Asylum and Immigration (Treatment of
Claimants, etc) Act 2004 and as such implementation is not mandatory.
The proposals should be abandoned or at least put on hold until
a proper evaluation of the new appeals system can be made.
INTRODUCTION
3. This evidence is submitted by The Law
Society, the regulatory and representative body for 116,000 solicitors
in England and Wales. The Society welcomes the decision of the
Constitutional Affairs Committee to conduct an enquiry into legal
aid and asylum appeals including the proposals by the Department
for Constitutional Affairs (DCA) to introduce retrospective legal
aid funding for applications for reviews of decisions by the new
single-tier Asylum and Immigration Tribunal (AIT).
4. The statutory framework for the retrospective
funding proposals is section 26 of the Asylum and Immigration
(Treatment of Claimants, etc.) Act 2004 (The Act) which contains
enabling provisions to introduce retrospective funding arrangements
for applications for reviews of decisions by the AIT, which will
commence operation in April 2005. The Society considers these
proposals to be deeply flawed and has submitted a detailed response
to the DCA's proposals.
5. The Law Society believes that these proposals
represent a continuation of the government's political agenda
to limit the appeal rights of immigrants in general and asylum
seekers in particular. The initial draft of the Asylum and Immigration
(Treatment of Claimants, etc) Bill sought to prevent any onward
appeal to the Courts against decisions of the AIT. After widespread
opposition to this proposal, (which arguably violated basic constitutional
principles of access to the courts) the government agreed to allow
a right of statutory review to the High Court. The issue is now
whether the new legal aid proposals for funding of appeals will
effectively deny access to the very appeal procedures it was deemed
so necessary to preserve.
6. Retrospective funding coupled with the
proposed more restrictive merits test will inevitably mean that
vulnerable applicants with reasonably arguable cases will be denied
legal aid to pursue their appeals. The reasons why we believe
this will happen and why we consider the current proposals to
be unnecessary are considered in more detail below. A brief summary
of the current and proposed new appeal procedures is provided
at Annex A.
THE NEW
FUNDING ARRANGEMENTS
7. Under the proposed new funding arrangements,
decisions about granting legal aid will be made in the majority
of cases by an AIT judge at the end of the reconsideration process.
It is envisaged that legal aid will only be granted where the
application has been successful or was a "near miss"
insofar as when the application was initially made, it would have
satisfied the merits test in the circumstances that prevailed
at that time. In a minority of cases, for example appeals that
are withdrawn before reconsideration by the AIT, the decision
to allow legal aid may be made by the High Court.
8. In cases where legal aid is ultimately
granted, it will be provided under Controlled Legal Representation
(including High Court statutory review applications that would
previously have been funded under a legal aid certificate.) Civil
legal aid will still be available for the small minority of cases
which proceed to the Court of Appeal.
9. Subject to financial eligibility, legal
aid will be granted if, at the time the application was submitted,
the case would have satisfied a new more stringent merits test.
The DCA propose to implement one of two thresholds, either one
of "significant prospects of success" or, more restrictively,
whether a case "was very likely to succeed or had very strong
prospects of success". Solicitors and barristers will be
expected to share the risk of taking on these cases. In cases
which are not deemed to satisfy the merits test, legal aid suppliers
will be entitled to request a paper based review of the decision
to refuse funding. Where the merits test is satisfied, there will
be a "risk premium", which will remunerate successful
cases at an enhanced rate of 25%. This is intended to compensate
legal aid suppliers for the additional risk involved in taking
on these matters.
10. The DCA state that these changes are
necessary to prevent the new AIT being overwhelmed with weak applications
and the method of achieving this is to shift the risk of funding
onto legal aid practitioners. The DCA regard the proposed new
funding arrangements as integral to the operation of the new AIT
although the Society sees no reason why the new appeals procedures
cannot be freestanding without the need for any fundamental change
in the method of funding.
LAW SOCIETY
CONCERNS
11. The Society agrees that unmeritorious
applications should not be publicly funded. However, we believe
that existing measures are sufficient to deal with this problem
without the need for retrospective funding and a new merits test.
We are also concerned that the proposals will lead to an unacceptable
reduction in access to justice for some of the most vulnerable
people in society and may result in chaos if those effectively
deprived of access to experienced accredited solicitors submit
applications in person.
SUFFICIENCY OF
EXISTING ARRANGEMENTS
12. There already exist a number of "filters"
or safeguards to prevent unmeritorious cases reaching the review
stage. The Legal Services Commission (LSC) already employs quality
controls on firms conducting publicly funded immigration work
including costs assessment audits, Quality Mark audits, and Peer
Review. Further, since April 2004, devolved powers were removed
from firms and the LSC is introducing stringent criteria for granting
them back. All publicly funded review applications are subject
to the Controlled Legal Representation (CLR) merits test. Firms
without devolved powers must have CLR approved by the LSC before
they can continue to represent a client, whilst firms with devolved
powers risk substantial costs penalties and other contract sanctions
if they are subsequently found on audit to have misapplied the
merits test. In addition, from April 2005, all lawyers undertaking
publicly funded work in these cases will have successfully completed
a rigorous process of accreditation, providing a further safeguard
on the quality of advice in this area of work. All of these factors
mean that there are already a raft of measures to prevent unmeritorious
cases progressing to the review stage.
13. In addition to the public funding filters
there is a rigorous filter exercised by judicial scrutiny. Within
the existing two-tier system, leave to appeal to the Tribunal
must be granted before an appeal can be heard. In 2003, just under
35,000 applications for leave to appeal were made and just under
12,000 appeal applications were received by the Tribunal. The
leave procedure thus filtered out approximately two thirds of
applications. The 2003 figures represent a peak, as Government
figures indicate that the number of asylum applications have fallen
substantially in 2004 so the overall number of appeals is likely
to be considerably lower in the future. The new single tier system
will require that applications for review of AIT decisions will
be scrutinised by a High Court judge who will determine whether
the case should go back to the AIT for reconsideration. There
is no reason to assume that this process will be less robust than
the current leave procedure. Indeed the Secretary of State has
indicated that it will be at least as robust.
14. The combination of LSC requirements
and judicial scrutiny ensures sufficient safeguards against the
system being overwhelmed with weak applications. We do not believe
further limitations on the availability of legal aid are legitimate.
Where a High Court judge has determined that an appeal has sufficient
merits to proceed, the interests of justice dictate that legal
aid should be granted. We do not believe it is justified for the
Government to require an additional test for the reasonableness
of legal aid when a High Court judge has made that determination.
THE PROPOSED
NEW MERITS
TEST
15. The DCA consultation paper suggests
two options for the new CLR merits test for AIT review applications.
Option 1 is framed in terms of whether a case had "significant
prospects of success" and option 2 is a test framed in terms
of whether a case was "very likely to succeed or had very
strong prospects of success".
16. We believe that option 2 is wholly unacceptable.
A test framed in these terms cannot be compatible with the interests
of justice, as the implication is that only cases that are almost
certain to succeed will qualify for funding. This would effectively
prevent public funding of all applications which seek to clarify
and develop caselaw, as well as cases where it seems reasonably
clear that the Tribunal has made an error in law but there is
some element of doubt. This cannot be in the public interest.
There would be a further perverse consequence that even where
the applicant succeeds at the reconsideration stage, funding could
still be refused if the Tribunal judge considers that the merits
test was not satisfied at the time the review application was
submitted.
17. This option also goes beyond the intentions
of Parliament expressed during the passage of the Asylum and Immigration
(Treatment of Claimants) Act. Lord Filkin has stated that "our
intent is not to squeeze out of the system those cases which have
reasonable grounds for being argued".[3]
David Lammy MP informed the House of Commons that "there
are a number of scenarios where it would be right for the lawyer
to receive payment where he had not been successful on behalf
of the applicant" and cited an example an unsuccessful application
where the "case may have established important case law that
defines a particular group or community and will have a lot of
bearing on immigration and asylum cases. In such circumstances,
it would also be right for the lawyer to receive funds".[4]
If option 2 were to be implemented, it is highly unlikely that
such cases would receive public funding.
18. Option 1 is also undesirable. The term
"significant prospects of success" is ambiguous and
open to subjective interpretation by different Tribunal and High
Court judges. This could lead to inconsistency in decision making,
which offends against the interests of justice. It is clear that
this test is intended to be more stringent than the current test
for Controlled Legal Representation, which, in conjunction with
the other existing filters in the system, and bearing in mind
the complexity of the issues and the importance of these cases
to the applicant, provides a sufficiently stringent merits filter.
19. The Society believes that, subject to
means, any reasonably arguable application for a review should
be eligible for legal aid. If legal aid funding decisions were
to be transferred to the Court or Tribunal, this could be justified
only on the basis that legal aid will be available for all applications
where a High Court judge orders full reconsideration by the Tribunal.
The Society would also accept that where, on full reconsideration
it is established that a supplier had culpably misrepresented
the application, the Tribunal could be empowered to revoke legal
aid. The Society believes that this would adequately secure the
stated objective of screening out any unmeritorious applications.
20. The requirement for the judge retrospectively
to consider merits, as they were at the time the review application
was made is problematic. This requires the judge to form a view
entirely uncoloured by any intervening circumstances. This will
make the task of making objective and consistent funding decisions
very difficult.
THE INTRODUCTION
OF THE
NEW ARRANGEMENTS
IS PREMATURE
21. We are strongly of the view that there
are too many untested factors to justify the introduction of the
proposals at the present time. The first factor is the new AIT
itself, which will not come into operation until April 2005. If
the quality of decision making is better than that currently exercised
by adjudicators, then it is reasonable to assume that there will
be fewer potential review applications which would satisfy the
existing merits test. This in itself would reduce the risk of
the review procedure being overwhelmed. If there is no improvement
in the current quality of decision making, then it is entirely
contrary to the interests of justice to effectively curtail the
right to pursue a review by imposing stricter merits criteria
for legal aid and expecting suppliers to pursue the matter on
a speculative basis.
22. The second major factor is the introduction
of compulsory accreditation which also commences in April 2005.
Only those lawyers who can demonstrate a high level of knowledge
and competence in immigration and asylum law will succeed in achieving
accredited status. In the House of Lords debate on the statutory
framework for these proposals, Lord Filkin stated that the proposals
will encourage lawyers to give "a more rigorous examination
to the prospects of the case succeeding". Lord Filkin goes
on to say:
we recognise that good lawyers do that already,
but that has not been universally the situation in our experience
of asylum matters over the recent years. This is not an attempt
to remove these cases from the scope of legal aid but a genuine
drive to ensure that the focus of public funding is on deserving
cases.[5]
23. Lord Filkin thus implicitly accepts
there is nothing wrong with the current merits test but rather
the need to curb the misapplication of that test by incompetent
lawyers. Accreditation, together with the stringent measures already
taken by the Legal Services Commission, is driving these lawyers
out of publicly funded immigration work. The effect of these measures
should be properly evaluated before new, more restrictive funding
arrangements are put in place. To implement the proposed changes
will inevitably mean that, contrary to the proclaimed intentions
of the government, meritorious cases will be removed from the
scope of legal aid.
24. The third significant factor is the
substantial drop in the number of asylum claims which will inevitably
mean that the number of appeals to the AIT and consequently the
number of applications for review must also fall significantly.
The Society does not believe that the DCA's concerns about the
review process being overwhelmed with weak applications have any
real substance.
IMPLICATIONS FOR
ACCESS TO
JUSTICE
25. It is inevitable that implementation
of these proposals for retrospective funding will reduce substantially
the number of solicitors and counsel carrying out publicly funded
work in this area, as they will not be able to risk taking on
even quite strong cases that may not retrospectively be deemed
to satisfy the proposed new merits test. The full extent of that
risk cannot be determined until a final decision is made on the
nature of the new merits test to be adopted.
26. The Society is aware of a number of
highly regarded practitioners who have withdrawn from publicly
funded immigration work because of the constraints introduced
by the April 2004 contracts, and fears that the new funding arrangements
could be a catalyst for further withdrawals by respected providers.
We doubt that the proposed 25% uplift will offer a sufficient
incentive carry out this type of work. For High Court statutory
review applications (which will be carried out under Controlled
Legal Representation rather than under a civil legal aid certificate)
there will be a cut in payment rates even after the uplift has
been applied.[6]
Immigration lawyers who on average are amongst the least well
paid in the profession, even in comparison with other areas of
legal aid, simply cannot afford to take the chance of doing substantial
amounts of work for which they might not be paid. Those who carry
on are likely to do so on the basis of goodwill, rather than for
sound business reasons. This is not a sustainable way to run legal
aid. Many practitioners will be faced with the ethical dilemma
of advising clients that although they may have a reasonably arguable
case, the firm cannot continue to represent them as the funding
prospects are too uncertain. Even where solicitors have, in the
words of Lord Filkin, given a "rigorous examination of the
prospects of the case succeeding" the proposals could mean
that they will not be in a position to take on even reasonably
arguable cases.
27. The proposals offend against the principle
of "equality of arms." The Home Office commands substantial
resources compared with represented appellants. Where appellants
are effectively denied representation the balance is tipped firmly
in favour of the state. The potentially grave consequences for
asylum seekers so denied representation could potentially give
rise to a claim under Article 6 of the European Convention on
Human Rights which enshrines the right to a fair trial. Even where
representation is provided under the proposed funding arrangements
inequality continues to exist, as there is no suggestion that
the Home Office should loose funding for defending appeals it
ultimately looses.
28. Asylum appellants with genuine cases
are desperate to avoid removal to countries where they are at
risk of loss of liberty, torture or death. It is very likely that
applicants with reasonably arguable cases who are denied public
funding will submit their own applications without the benefit
of professional representation. Any significant increase in litigants
pursuing their cases in person, particularly those who have a
limited command of English, is likely to cause considerable practical
difficulty to the Tribunal, as well as failing to provide effective
help to the applicants. The net effect could be contrary to the
smooth and efficient running of the Tribunal that the new funding
arrangements purport to facilitate.
CONCLUSION
29. As David Lammy has made clear in Parliament,
these proposed legal aid changes are devised under an "enabling
power" within the Act 2004. The Act does not require these
changes to be implemented and the Society calls upon the government
to recognise the changed circumstances since the Act was debated
in Parliament and either scrap the proposals altogether, or at
least delay implementation in order to allow a proper evaluation
of whether they are necessary or justified.
3 HC Deb, 6 July 2004, col 739 Back
4
HC Deb, 12 July 2004, col 1166 Back
5
HC Deb, 4 May 2004, col 998 Back
6
High Court preparation rates (London): Civil legal aid: £79.50
per hour; CLR (inc. 25% uplift) £76.50 per hour Back
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