Evidence submitted by East Midlands Consortium
for Asylum and Refugee Support (EMCARS)
1. East Midlands Consortium for Asylum and
Refugee Support (EMCARS) is committed to supporting all asylum
seekers during their stay and to working to enable the fullest
settlement and integration into society of all those granted leave
to remain in this country.
2. We have grave concerns about any additional
limitations for legal aid funding for asylum appeals. We have
already experienced a notable decrease in the supply of legal
advice and many private practices have closed their immigration
departments due to tightened policy on the available legal aid
funding within the past year. Some of our partners have raised
concerns that it is simply impossible to do the required workload
with the time limit of the funding available. Asylum cases by
their definition are difficult and complex requiring extreme care
at all times and it is rare that the applicant would have private
funds available to cover the costs arising from the proceedings.
3. The Consultation paper for the new proposals[14]
claims that the new procedure will support the desire of achieving
a more fair, fast and efficient appeals process. Hence, "[T]o
achieve this the number of weak cases seeking to overturn appeal
decisions needs to be reduced".[15]
The new single tier tribunal is designed to limit the applicant's
appeal rights. This, per se may lead to unfair proceedings as
according to the latest statistics over 30% of appeals are overturn.
This suggests poor quality of the first instance decisions. Considering
that the asylum claim affects a person's life, it is natural for
the unsuccessful applicant to explore every possible appeal route.
In order to produce fast and fair decisions, it ought to be more
important to explore the reasons behind the first instance decisions
and seek to ensure that the quality of these are improved as a
priority. Access to appeal procedure is essential to ensure that
also in the future any wrong first instance decisions are to be
set right.
4. As established above, there is a significant
decrease in the number of practices doing immigration work across
the country. Many clients in our regions must in fact seek legal
assistance from London areas where the supply is higher. We are
not aware of a comprehensive study as to the reasons behind the
lack of immigration advisers is our region, but we have highlighted
this issue with the Legal Services Commission and will have a
regional meeting about this matter in January 2005. We can however
estimate from our partners that it is simply not profitable to
take on cases which by their definition are complex and time consuming
as the legal aid funding procedure takes a long time to complete
with no guarantees of being refunded for the actual time used
but simply being compensated for a fraction of it. We are told
that some private practices will use the initial 5 hour limit
and then drop the case to be picked up by charities. This seems
to be because the initial workload is higher than five hours and
application for extension takes unreasonable time and effort.
Thus, it is not feasible for private practices to take the financial
risk for not covering their time and costs.
5. It is our worry that after the proposed
changes no private practice will take upon any other than extremely
simple and clear cut cases if any. It is agreed that expenditure
spent on asylum cases comprises high proportion in the legal aid
budget. However, it is our view that as everyone has a right to
seek refuge in accordance with Refugee Convention 1951[16]
and that this right is not guaranteed unless it is ensured that
the asylum process is and is seen to be fair and just. Thus, it
is imperative to ensure that the asylum process is not only fair
for those who have personal means to fund it.
6. Altogether, it seems clear that most
asylum seekers are unable to represent themselves in the proceedings.
Many cannot read, write or even speak English. In addition, the
current asylum process is complex and to have a truly fair hearing,
one needs qualified legal representation throughout the proceedings.
It is our view that the proposed changes would inevitably lead
to very unjust results and thereby would constitute unfair trial
within the meaning of Article 6 of the European Convention on
Human Rights and Fundamental Freedoms 1951. Hence, we feel that
the proposal for retrospective funding is incompatible with the
Human Rights Act 1998.
Helen Everett
Regional Consortia Manager, EMCARS
January 2005
14 The Asylum and Immigration Tribunal-The Legal
Aid Arrangements for Onward Appeals, p10 Consultation Paper Back
15
ibid Back
16
UN Geneva Convention Relating to the Status of Refugees 1951 as
amended Back
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