Evidence submitted by the United High
Commission for Refugees (UNHCR)
OUR INTEREST
IN THIS
INQUIRY
1. The United Nations High Commissioner
for Refugees (UNHCR) is a non-political, humanitarian organisation
mandated by the United Nations to lead and co-ordinate international
action for the worldwide protection of refugees and asylum seekers.
Under Article 35 of 1951 Convention relating to the Status of
Refugees ("the 1951 Convention") UNHCR has the function
of supervising the application of the provisions of the 1951 Convention,
and it is in this role that UNHCR would like to offer the following
comments in relation to the current Constitutional Affairs Committee
inquiry into the Legal Aid arrangements for onward appeals, to
ensure that fair access to the full asylum process be afforded
to those in need of international protection.
IMPORTANCE OF
ACCESS TO
LEGAL REPRESENTATION
2. The United Kingdom, as a member of UNHCR's
Executive Committee, [7]has
repeatedly drawn attention to the importance of fair and effective
asylum procedures. [8]UNHCR
has consistently emphasised the need for good quality decision-making
and an appropriate appeal or review process to maintain procedural
safeguards and due process. In UNHCR's view, the legal representative
plays an important role in ensuring that these standards are maintained,
that an asylum applicant is able to advocate his or her case effectively,
and that proper access to and understanding of the procedures
is achieved.
3. A system to authorise funding at any
stage of the appeal process must be designed to ensure that asylum
seekers receive advice and representation in a timely and effective
manner. The primary consideration must be for a procedure that
does not restrict access to review of the application of the 1951
Convention. In this regard, the administration of funding will
need to be carefully aligned with that of the appeal procedure,
to ensure that its operation supports the appeals process, rather
than obstructs it.
4. UNHCR has noted predictions that the
envisaged system of retrospective funding for challenges to decisions
of the Asylum and Immigration Tribunal ("AIT"), and
the attendant risks that will have to be taken by legal representatives
taking on such cases, are likely to lead to fewer legal representatives
practising at this level. It has also been commented by practitioners
in the field that lawyers are likely to move away from asylum
law altogether, in view of this new policy combined with other
recent changes, whose cumulative effect is to make it increasingly
difficult for an asylum legal representative to continue to work
to a high standard or to run a viable business. [9]
5. It is the global experience of UNHCR
that access to legal assistance can be problematic for asylum-seekers.
These difficulties will clearly be heightened for an individual
suffering from trauma or mental illness as a result of past experiences,
or experiencing material deprivation in the host country. UNHCR
is concerned to ensure that changes in the Legal Aid system do
not have a detrimental effect on an asylum seeker's timely access
to full and effective legal representation throughout the asylum
process in the United Kingdom. While UNHCR is pleased that the
Government might be concerned to prevent problems arising as to
the quality of legal advice provided to asylum seekers, in our
view, the solution should be to focus more on ensuring an enhanced
quality of legal advice rather than on reducing the possibility
to access it. UNHCR is concerned that the current approach—aimed
at discouraging unmeritorious applications for review of AIT decision—could
also act to harm the very deserving cases, by discouraging legal
representatives from taking the risk in meritorious cases, or
even by reducing the numbers of legal advisors in this area altogether.
PROSPECTS OF
SUCCESS TEST
6. We note the two suggested options for
the "prospects of success" test that are currently under
consideration by the Department for Constitutional Affairs ("significant
prospects"/"very strong prospects"—question
3 of the DCA's Consultation Paper). [10]We
would comment that, in relation to the merits of their case, many
asylum seekers find themselves in a "borderline situation".
There are numerous reasons for this, including the factually unique
nature of asylum cases, the personal vulnerabilities of applicants
that may make explanations of events difficult, the obstacles
often faced in evidencing past events, and the complications inherent
in a forward-looking consideration of risk on return. It is therefore
often difficult to rate the prospects of success in an asylum
case, even in terms of whether or not likelihood of success is
as high as 50%, let alone to a higher standard. [11]It
is also likely to be a highly subjective assessment.
7. The same principles will surely apply
in many cases when attempting to consider the merits of a review
of an AIT decision. When the difficulties of this assessment are
combined with the potential penalty for an erroneous decision
by a legal representative, it would seem likely that under either
of the DCA's two suggested tests, legal representatives will tend
to err on the side of caution when deciding whether or not to
pursue a reconsideration application. Given this likely effect
of either of the suggested tests, and the particularly grave potential
consequences of an erroneous decision not to process an asylum
appeal further, UNHCR would support neither test, but would recommend
that the regulations governing the retrospective funding be amended
to reflect the above-mentioned principles. UNHCR would urge that
any merits test for funding is both set and applied in a flexible
and humane manner. We would particularly recommend that the test
used should be no more stringent that the current "Controlled
Legal Representation" merits test applied to funding for
asylum appeals, where funding is only refused where the prospects
of success are "poor"[12]—that
is prospects are clearly below 50%.[13]
UNHCR London
January 2005
7 UNHCR's Executive Committee (ExCom) is made up of
66 countries that meet every autumn in Geneva to review and approve
the agency's programmes and budgets and to advise on protection
matters. ExCom sets international standards with respect to the
treatment of refugees and provides a forum for wide-ranging exchanges
among governments, UNHCR and its numerous partner agencies. ExCom
Conclusions may only be passed with the unanimous agreement of
the 66 countries; therefore, the unequivocal agreement of the
UK Government was required in order to pass any ExCom Conclusion.
During the adoption of ExCom Conclusions, States have ample opportunity
to express reservations to their content. Although Conclusions
do not have a legal binding force, they are of the utmost moral
significance Back
8
See ExCom Conclusion on Safeguarding Asylum No. 82 (XLVIII)
1997 Back
9
Examples of such recent policy changes include: time-based restrictions
on Legal Aid funding, the "Accreditation" process for
legal representatives, shorter time limits recently introduced
for appeal applications (and more specifically the 5-day time
limit for applications for reconsideration of an AIT decision),
and other features of the draft 2005 Procedure Rules Back
10
The Government's proposals are contained in a paper entitled:
The Asylum and Immigration Tribunal-The Legal Aid Arrangements
for Onward Appeals, November 2004 Back
11
Paragraphs 195 to 205 of the UNHCR Handbook on Procedures and
Criteria for Determining Refugee Status Back
12
Or prospects of success are unclear or borderline, and without
other compelling factors Back
13
Under the current Legal Services Commission instructions: "Legal
Representation will be refused if the prospects of achieving a
successful outcome for the client are: (a) unclear or borderline,
save where the case has a significant wider public interest, is
of overwhelming importance to the client or raises significant
human rights issues; or (b) poor." "Poor" is described
as: "prospects are clearly below 50%. Controlled Legal Representation
must be refused where the appropriate advice to the client would
be that in the circumstances of the case their appeal is more
likely to fail than to succeed" Back
| 
