Evidence submitted by Immigration Law
Practitioners' Association (ILPA)
PROPOSALS FOR
THE "RETROSPECTIVE
PUBLIC FUNDING"
OF ONWARD
APPEALS FROM
THE SINGLE
TIER ASYLUM
AND IMMIGRATION
TRIBUNAL
I write in response to the invitation to submit
written evidence on these proposals, to which ILPA is opposed
for the reasons given in our submission to the Department of Constitutional
Affairs' consultation in December, a copy of which is attached
(not printed). It is, however, somewhat longer than the submission
now invited, so what follows is an amended and shortened version,
which I hope will assist.
INTRODUCTION TO
ILPA
1. ILPA was established in 1984, and is
dedicated to encouraging high standards in the practice of immigration
law. We have a current membership of 1,225, comprising barristers,
solicitors and other practitioners regulated by other professional
bodies. We have members who work in private practice and in the
not for profit sector, and who engage in all areas of immigration
law, commercial and publicly funded. Many undertake, or until
recently have undertaken, publicly funded appeal work.
SUMMARY OF
OUR POSITION
2. The retrospective funding proposals will
cause injustice, and have a deleterious effect on appellants,
on conscientious practitioners, on the administration of justice
and on the future development of immigration and asylum law, because:
— Injustice will result if appellants
cannot find competent representation, which will be the inevitable
result if good practitioners are unable to afford to take on onward
appeal work. This is too high a price, especially when the abuses
that these proposals are purportedly designed to correct are already
being brought under control by other means.
— The proposal to oust access to the
higher courts did not find favour with parliament and was withdrawn,
but the present proposals smack of ouster by the back door by
blocking access to those whose representatives dare not risk the
costs consequences of seeking to challenge determinations of the
AIT.
— The present Tribunal does not always
get the law right, and it is unrealistic to suppose that the new
one will be any less fallible. The quality of decision making
will inevitably deteriorate if it is not robustly tested, not
only where obvious errors have been made but also in more marginal
cases and in cases where the law is, or should be, open to development.
Practitioners need the security, which those representing the
Secretary of State enjoy in any event, of knowing from the outset
that such cases will be funded subject, as at present, to a continuing
duty to keep the merits under review. The public interest needs
to be protected from the stultification of the law that will ensue
if only the most obviously erroneous AIT decisions are ever challenged
on behalf of appellants.
THE PRESENT
POSITION AND
SAFEGUARDS AGAINST
ABUSE OF
LEGAL AID
3. The Government should have more confidence
in the Legal Services Commission (LSC) than these proposals imply.
The LSC has already, from 1 April 2004, increased the stringency
with which it tests, and requires its supplier practitioners to
test, the merits of immigration appeals and judicial reviews.
Through the process of supplier audit, and now through the compulsory
accreditation scheme which will be fully in force on 1 April 2005,
it continues to weed out practitioners it finds to be incompetent.
It should be trusted to deal with applications for public funding
for onward appeals from the AIT just as it deals with other applications,
before the event, but subject to continuing merits review. It
is particularly inappropriate to consider tinkering with this
principle now, less than a year after the present immigration
funding structure was introduced and before the accreditation
scheme is fully in force so there has been no opportunity at all
to assess the impact of these combined measures.
4. The Government should also have more
confidence in judges, who already have powers to make wasted costs
orders and to refer cases to the LSC in cases so manifestly weak
that they should never have been brought, or where information
has been withheld. Indeed where the LSC itself is judged to have
been at fault orders can be made under s.11(4)(d) of the Access
to Justice Act 1999 for the Commission to pay respondents' costs.
It is better that real punitive costs orders be imposed when actually
deserved than that practitioners be intimidated by uncertainty
into failing to challenge difficult cases to the detriment both
of their clients and of the development of the law.
RESPECT FOR
JUDICIAL DECISION
MAKING
5. The Government should also trust judges
not to be easily misled into granting permission for unmeritorious
onward appeals. ILPA can conceive of no justification for a scheme
in which honest practitioners might be denied payment in a case
which the judiciary, either at AIT or Administrative Court level,
had deemed to merit the grant of permission. Remedies for the
dishonest are already to hand and should be used. The rest of
us, for the sake of our clients, our businesses and our employees,
need the certainty of knowing that we will be fairly remunerated
for an honest job competently done.
6. Draft procedure rule 27(6) provides that
an immigration judge may make an order for reconsideration only
if satisfied that the Tribunal may have made an error of law AND
either there is a real prospect that the Tribunal would decide
the appeal differently on reconsidering or there is some other
compelling reason why the decision should be reconsidered. If
a judge is satisfied that this high threshold has been met then,
in that class of case at least, practitioners should surely be
certain of payment without more, provided there has been no dishonest
misrepresentation.
7. This approach is consistent with David
Lammy's statement to Parliament during debate on the 2004 Act
that:
We are keen to continue to discuss
how we should define in regulations the scope of a meritorious
case. On that basis, we wanted to include cases in which the lawyer
was right to bring the case, but was not successful in acting
on the applicant's behalf. Let us leave the technical discussions
. . . to the legal profession and the DCA.
A lawyer will surely always be "right to
bring" a case for which an immigration or High Court judge
has granted permission after application of the prescribed high
test, subject only to the continuing duty to review merits in
the light of new information.
SHORTAGE OF
GOOD REPRESENTATION
AND ENCOURAGEMENT
OF THE
UNSCRUPULOUS
8. Competent publicly funded immigration
practitioners are already in short supply, a problem that has
been exacerbated during the past year. The stringent funding regime
introduced on 1 April 2004 may have been aimed at the unscrupulous
and incompetent, but the margins of profitability have become
so tight that a number of highly regarded firms have bowed out
of the work, while others are protecting their businesses by restricting
the amount of publicly funded work they take on. The funding uncertainty
built into the present proposals will discourage them still further.
Publicly funded immigration law properly practiced is simply not
profitable enough to allow us to absorb these potential losses.
9. We fear not only that appellants will
be abandoned by their representatives at onward appeal stage,
but also that they will find it even more difficult than now to
find legal representation in appeals from the outset. This is
partly because of the generally discouraging effect of the proposals
on practitioners who may already be struggling financially, but
also because conscientious practitioners may be unwilling to take
on cases knowing that they will not be able to afford to see them
through in the event of an unfavourable initial AIT determination.
10. The less conscientious will have no
such scruples, and in some cases presumably will also not scruple
to use the proposed scheme as an alibi for refusing legal aid
and exploiting appellants to raise funds they cannot afford to
fund their onward appeals privately—precisely the kind of
conduct that ILPA deplores and understood the government also
wished to stamp out. That will be better done by keeping the funding
of these appeals within the current regime, especially in the
light of the current and future developments in the LSC's regulatory
powers and practices.
DEMORALISING THE
PROFESSION
11. The Government should not underestimate
the demoralising effect on conscientious immigration practitioners
of the implication that they uniquely among lawyers are incapable
of fulfilling their duties to their clients, the court and the
legal aid fund without being subjected to a special regime predicated
on the premise that they need to be bullied by the threat of non-payment
into recognising the need to "rigorously assess the merits
of a case before deciding to pursue it", as the DCA consultation
paper put it.
THE VIEW
OF THE
APPELLATE AUTHORITY
12. We understand from the Chief Adjudicator,
who addressed our AGM in November, that the Appellate Authority
has made clear to the Government the high value that it places
on competent representation before it. No doubt, if these proposals
go through with the consequent reduction in available competent
representatives that we predict, the AIT will do what it can to
mitigate the damage for unrepresented appellants, but that can
only be at the expense of longer hearings and more court time—a
false economy indeed.
THE PROPOSED
ALTERNATIVE THRESHOLDS
AND THE
WISHES OF
PARLIAMENT
13. In our response to the DCA we provided
answers to various specific questions raised in that consultation.
I do not repeat them all, but refer the Committee to the attached
full version of our DCA submission. I do, however, here summarise
our main comments on the proposed alternative tests for funding,
as follows:
14. The wish of parliament to preserve immigration
appellants' right of access to the higher courts is not well served
by these proposed arrangements at all, although of the two options
proposed the first, whether a case had significant prospects of
success, is clearly the lesser evil. But neither this test, nor
retrospective funding in any guise, is necessary to achieve the
aim of penalising practitioners who knowingly withhold material
information, as has been implied by the DCA. There are already
adequate mechanisms in place capable of ensuring that such malpractice
is not remunerated (see paragraph 4 above).
15. Neither option is consistent with the
statement of David Lammy to the House of Commons that:
. . . even if an applicant has been
unsuccessful in making their claim, their case may have established
important case law that defines a particular group or community
and will have a bearing on immigration and asylum cases. In such
circumstances it would be right for lawyers to receive funds.
This statement was made on 12 July during debate
on the House of Lords' amendments to what is now the 2004 Act
so it was on this basis that parliament voted to accept the broad
thrust of the government's proposals replacing its previous attempt
to oust the higher courts' jurisdiction. It would thus be contrary
to the wishes of parliament for any criteria to be applied that
could result in lawyers being deprived of funding in test cases,
whether ultimately successful or not.
PRACTICAL DIFFICULTIES
16. The adverse impact already indicated
on appellants, practitioners, their businesses, their clients,
the ability of the Legal Services Commission to provide competent
suppliers in adequate numbers to meet demand from potential clients
and the impact on the AIT of rising numbers of unrepresented appellants
will all arise to some degree under either option, as will the
difficulty for the judge of performing the highly artificial and
philosophically challenging exercise of travelling back in time
after the event to assess what the prospects of success had been
before the review began. There may be an additional difficulty
in option 2 in that, if it is to succeed in its aim of denying
funding even in some cases that had succeeded at review stage,
it must involve one judge impliedly criticising another, but penalising
only the hapless practitioner.
DANGERS OF
FETTERING JUDICIAL
DISCRETION
17. The discretion of Administrative Court
judges to award funding should not be fettered in any case where
the court is satisfied that it is reasonably likely the AIT made
an error of law, even if an order for reconsideration is not made
because the judge is not satisfied on the 2nd limb of what is
now the draft regulation 6.b test (significant or very strong
prospect that the appeal would be allowed upon reconsideration).
The health of the AIT, no less than that of any other Tribunal,
will benefit from regular High Court scrutiny of the legality
of its decisions. Lawyers should not be discouraged from bringing
legal challenges for fear that their honest judgement as to the
materiality of an error may ultimately differ from the conclusion
of the judge, where it is accepted by the judge that there was
indeed an error of law. This is not to say that the materiality
of an error is not to be taken into account in assessment of a
case for public funding at the outset, just as it is now, but
simply to say that honest lawyers should not be financially penalised
when they have been proved right on the law. After all, a finding
that does not avail the appellant in a particular case may well
be instrumental in preventing the AIT from repeating the error
and causing material injustice in other cases. It is as distasteful
to contemplate the prospect of lawyers being punished for achieving
this as it is to contemplate the discretion of the Administrative
Court in this area being undermined.
THE PROPOSED
"RISK PREMIUM"
18. Practitioners in this as much as any
other area of law need to be able, so far as the vagaries of practice
allow, to plan financially for their businesses. Indeed the LSC
requires its suppliers to have three-year business plans, annual
budgets and quarterly variance analyses. Rational planning is
simply not possible on the basis of "can I afford to take
on this marginal case and risk not getting paid on the off-chance
that a stronger case might come along next week on which I am
likely to be paid". We need to know that if we make honest
competent assessments we will be paid a fair rate for all our
work, not premium bonanzas for occasional wins. It is not necessary
to introduce the notion of a "risk premium" to justify
paying reasonable rates for review work. We see no reason why
those rates should be less than prescribed rates for certificated
work, with similar provision for enhancement where justified,
even if administered as an aspect of CLR (see also paragraph 23
below).
THE PUBLIC
INTEREST AND
THE NEEDS
OF APPELLANTS
19. Appellants deserve to have their cases
assessed by competent practitioners who can access funding in
each appropriate case, not dependant on the happenstance of how
many other relatively strong or marginal cases they have that
might pay off with a risk premium. Under the special contracts
for Civil High Cost Cases enhanced rates are paid if the prospects
of success are borderline but the case is being taken on because
of its overwhelming importance to the client, or in the public
interest, and it could not be expected that practitioners would
take it on at commercial risk. By contrast here we have the prospect
of being offered inducements to take on only those cases which
are near sure fire winners.
20. The concept of costs risk in public
law cases, especially where the stakes for the individual are
as high as they invariably are in immigration and asylum cases,
is not to be equated with the risk in financial damages cases.
This is a distinction recognised in the differential rates paid
under the Civil High Cost Case contracts, and one that should
not be lost.
MERITS, FINANCIAL
ELIGIBILITY AND
REMUNERATION—COMPARISON
WITH CLR
21. The damage likely to be done by the
retrospective funding proposals will be exacerbated if the merits
test differs from that currently applied in Controlled Legal Representation
(CLR) in immigration appeals. The CLR test was elaborated with
effect from 1 April 2004 and is now well understood. ILPA has
some concerns that a minority of practitioners may be protecting
their own position by wrongly refusing CLR in marginal cases for
fear of the costs consequences on audit if the LSC later takes
a different view, but appellants in such cases at least have the
protection of an appeal to the LSC. Under the present proposals
there will be no such protection in a case where the practitioner
is not prepared to take the risk of an onward appeal based on
an untried merits test.
22. The effect of the draft financial regulations
is to extend the CLR financial eligibility test to Legal Representation
before the High Court, instead of the more flexible criteria now
applicable in legal aid certificate cases. This is regrettable
because it will exclude from eligibility those appellants on the
financial margins who would have qualified for a certificate subject
to a financial contribution under the present arrangements.
23. CLR remuneration rates are lower than
the prescribed rates in certificated work, and do not have the
same flexibility for enhancement. Parliament intended the new
review procedure to replace of existing arrangements for access
to the higher courts, so it should be remunerated in essentially
the same way, and bills assessed in the same way. Whether this
is done under the aegis of special arrangements under CLR or otherwise
is probably immaterial. What matters is that once granted, so
long as the merits continue to justify it, the supplier should
be confident of being paid at a reasonable rate, commensurate
with other higher court work, and that the interests both of suppliers
and of the legal aid fund are protected by a fair process of bill
assessment by the LSC.
24. In conclusion, ILPA opposes the current
proposals because they are unnecessary to prevent abuse, but will
result in injustice and risk stultifying the law.
Rick Scannell
Chair of ILPA
Immigration Law Practitioners' Association (ILPA)
4 January 2005
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