Evidence submitted by the Legal Aid Practitioners
Group
1. This is the evidence of the Legal Aid Practitioners
Group to the Constitutional Affairs Committee on the DCA's proposals
for retrospective funding of immigration appeals.
2. LAPG is an independent membership organisation
representing over 800 firms that undertake legal aid work. Between
one third and one half of our members do some immigration work.
3. The AITC Act 2004 empowers the DCA to
set up a system of retrospective funding for appeals from the
AIT. It does not require it to do so. We believe that this approach
is contrary to the best interests of clients, practitioners and
the system as a whole, and should not be pursued. We also believe
that the proposals do not comply with assurances given by Ministers
during the passage of the Act as to how the funding system would
operate.
4. Under the current arrangements, in order
to proceed to challenge an immigration appeal decision by way
of judicial review, the solicitor has to persuade the Legal Services
Commission, in accordance with its funding code, that the case
has sufficient merit that it should be funded. Once the LSC has
confirmed that the case has merit, the solicitor is guaranteed
funding, unless it subsequently transpires that the solicitor
misled the LSC, or the Court decides that the application had
no merit and issues a certificate to that effect. In either such
case, the solicitor will not get paid. There are therefore significant
protections within the existing system to ensure that solicitors
bringing inappropriate appeals are heavily penalised for doing
so.
5. We have seen no justification for denying
the solicitor an assurance of funding before work is started on
a case. Private practice solicitors working in this field are
running businesses, and must take sensible commercial business
decisions. Those working for non-profit making organisations must
still cover the costs of the organisation and cannot afford to
work for nothing. Few other businesses are required to work speculatively
in this manner, and those that do can generally name their own
price to attach to the commercial risks of doing so. Furthermore,
such organisations generally know very clearly in what circumstances
they will or will not get paid. Such clarity is absent in the
proposed new system.
6. The less harsh of the possible alternative
tests being proposed under this scheme is that a case had "significant
prospects of success". The current test is that a borderline
case will be funded if it is of overwhelming importance to the
client or raises significant human rights issues. Clearly, the
vast majority of borderline asylum cases will meet this test.
No case of less than borderline prospects of success meets the
funding code. If such cases are being funded, then it means that
the LSC is not applying the merits test properly and that Courts
are not issuing certificates of no merit as robustly as they should.
7. Thus under the new scheme, a solicitor
considering whether to assist a client will need both to apply
a much more stringent test than at present and leave enough of
a margin of error within the new test to ensure that he does not
end up doing substantial amounts of work and not get paid for
it. A significant number of cases that are properly brought under
the current scheme (and therefore are not the sort of weak or
improper cases that the Government rightly wishes to weed out)
will not meet the merits test and will not be eligible for funding
under the new arrangements.
8. There are further checks and balances
within the system to help guard against improper appeals being
brought. The LSC has taken numerous steps over the past few years
to remove from the system the poor quality immigration advisers,
culminating in the bid round for contracts in April 2004. From
April 2005, every single person working on legally aided immigration
and asylum cases must hold accreditation. The new accreditation
rules provide the toughest restrictions in any field of law on
who can and cannot advise clients.
9. One justification given by the Government
for bringing in this change is that it does not want the new system
to be clogged up with unmeritorious appeals. Yet, in our view,
one of the likely consequences of this change is that more applications
will be made by people acting in person or with the assistance
of unqualified community representatives. These clients will not
have the benefit of legal advice on whether the case has merit,
which points should be taken, or what the procedures of the system
are. In many cases, the appellants will be obliged to present
their appeals through interpreters. Thus, we believe that the
change will in fact have precisely the opposite effect to the
Government's stated intention.
10. Even if the retrospective funding provision
is to be brought in, we believe that the merits test currently
being proposed does not comply with assurances given by Ministers
during the passage of the Act. Lord Filkin said during a House
of Lords debate on 6th July 2004 (Lords Hansard column 739).
Some of the debate will turn on whether it is
reasonable to put the burden on the lawyer to make a judgment
about whether he should take a case to appeal. The lawyers who
are making that judgment will already know the case, because,
in most cases, they will have advised the applicant on legal aid
when he was making his appeal to the IND. They will have advised
the applicant when he made his application to the IAT. Therefore,
they will know the facts and the strength of that case. Essentially,
the system will be that they should be rewarded on success and
that they should be rewarded on near-misses. They should be rewarded
at a higher rate than would normally be the case so that they
are compensated for the risk that they take, because none of us
can perfectly judge which case is a winner or even which is a
near miss. Our intent is not to squeeze out of the system those
cases which have reasonable grounds for being argued-those cases
should be brought forward. Nor is it our intention to make the
legislation so stringent that a good asylum lawyer cannot make
a judgment where he thinks that the case has legs and should have
a hearing. If he gets that wrong, one wants him to be in a position
whereby, on swings and roundabouts over time, sufficient legal
aid is granted as to continue an adequate supply of lawyers. Therefore,
central to our thinking is that one has to pitch the legal aid,
by whatever mechanism-there could be variability in it or a debate
about it—so that there is an adequate supply of lawyers
who are prepared to come forward and take cases that should be
taken up because they have merit. However, we have to squeeze
out those cases where there are no reasonable grounds for believing
that there has been an error of law on the part of the AIT and
that, therefore, they justify a reconsideration.
11. Even on the broadest possible interpretation
of Lord Filkin's words, both of the tests proposed go significantly
further to exclude funding than the assurance Lord Filkin gave
to the House of Lords. The proposed test would exclude all borderline
cases. These are cases which have "reasonable grounds for
being argued," which Lord Filkin assured the House of Lords
would be funded. Both tests would also fail to guarantee payment
in a case that the solicitor won, contrary to Lord Filkin's assertion
that "the system will be that they should be rewarded on
success." The tests as proposed have the perverse effect
of penalising a lawyer who demonstrates particularly skill in
winning a marginal case, while rewarding one who took forward
a case with significant prospects of success but lost it.
12. There is also a significant problem
in relation to the proposal for a success fee. At present, applications
to the High Court for a review of an Immigration Appeal Tribunal
decision is funded under a full legal aid certificate, which attracts
a basic preparation rate of £79.50 per hour in London. This
basic rate is often subject to an enhancement of as much as 100%
because of the urgency and complexity of the matter, so actual
rates of £159 per hour are not unusual.
13. Under the new scheme, High Court applications
will be funded under the controlled legal representation scheme,
which normally attracts a basic preparation rate of £61.20.
In the Legal Services Commission consultation on the contract
amendments to be made to implement the scheme, it is proposed
that High Court applications should attract a rate of £76.50.
So although the scheme is offering a premium of 25% over the usual
rates for controlled legal representation, this actually represents
a massive cut compared with the current rates. We anticipate that
this aspect of the proposal will be challenged by way of judicial
review as being "Wednesbury unreasonable".
14. We would also endorse the views of the
Civil Justice Council, a statutory body headed by the Master of
the Rolls and with a responsibility for making recommendations
for the improvement of the civil justice system. They said at
paragraph 51 of their response to the DCA consultation on this
policy,
We also query the policy of reducing or removing
public funding from cases involving fundamental rights and freedoms,
and instead placing the onus on practitioners to take commercial
risks in conducting such cases . . . We do not consider that it
is appropriate for representation of vulnerable clients regarding
challenges to executive actions to be dependent upon the willingness
of practitioners to take commercial risks in the same way as damages
claims.
15. In conclusion, we do not accept that
there is any need to change the funding system in order to meet
the Government's stated aims. The current test, if properly applied,
is clearly adequate to achieve them. We believe that the likely
effect of the retrospective funding arrangements will be that
more good solicitors will leave the system. Clients with reasonable
but not overwhelmingly strong cases, who are presently helped
quite properly, will no longer be entitled to representation;
and because solicitors will need to leave a "margin of error"
in their assessments of cases, they will reject some cases that
properly fall within the merits test. Firms that are insufficiently
severe in their application of the test may find themselves in
financial difficulties when funding is refused, despite having
acted competently and in good faith throughout. Some of those
who cannot get representation will nonetheless appeal as litigants
in person, either acting alone or with the benefit of community
advisors, with little understanding of the law and procedures
involved. The Court may find itself hearing poorly prepared cases
of little merit presented in person by clients who do not speak
English. We believe that this presents a greater risk to the smooth
running of the Courts than the prospect of a few cases being brought
with the benefit of legal representation that perhaps should not
have been brought.
Legal Aid Practitioners Group
January 2005
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