Evidence submitted by The Department for
Constitutional Affairs (DCA)
CORRESPONDENCE FROM
BARONESS ASHTON
OF UPHOLLAND,
PARLIAMENTARY UNDER-SECRETARY
OF STATE
Thank you for your letter of 17 November, addressed
to David Lammy, about our proposals for the legal aid arrangements
for onward appeals against decisions made by the Asylum and Immigration
Tribunal (AlT) detailed in the consultation paper published on
8 November. I am responding as I have Ministerial responsibility
for asylum policy.
As you know, the framework setting up the way
in which legal aid will be granted was established under section
26 of the Asylum and Immigration (Treatment of Claimants, etc)
(AITC) Act 2004 and the policy debated and approved by Parliament.
The proposals in the consultation paper have been developed through
consultative meetings with the legal professions and the Judiciary—who
have also had prior notice of the consultation period. We value
the contribution of those who will be engaged in the new asylum
and immigration appeals system. Their expertise is vital in developing
the detail of how these legal aid measures will work in practice
to ensure that the new system or oversight of AlT appeal decisions
is a success. Because of this prior consultation, we are able
to consult for the shorter period of six weeks.
Under the new legal aid arrangements, funding
will be awarded retrospectively for the review and reconsideration
stages. This will help ensure that lawyers take greater responsibility
for assessing an appeal's prospects of success before agreeing
to provide representation, and will discourage weak applications.
In turn, this will reduce the potential volume of publicly funded
cases going on to the higher courts and the AlT. At the same time,
the new system will ensure that a final appeal decision is reached
quickly and efficiently, reducing the number of unmeritorious
cases reaching the higher courts.
The consultation paper puts forward two possible
models for the prospects of success test. The models suggest cases
will warrant funding if the case had "significant prospects
of success' or were "very likely to succeed or had very strong
prospects of success
Lord Filkin expressed this requirement on the
floor of the House during the passage of the Bill as cases that
have significant merit. This was supported by the House of Lords
and there was agreement that a stricter test was necessary to
prevent delay and abuse in the appeal system.
You are particularly concerned that solicitors
who had briefed counsel on an appeal may be unable to pay counsel
if the advice was on balance in favour of an appeal, but the appeal
was ultimately unsuccessful. We are addressing that in a slightly
different way. The consultation paper sets out the possibility
of risk sharing for both solicitors and barristers and seeks views
on how that can best be achieved. We believe that barristers,
of all concerned, are best equipped to assess risk. However we
acknowledge that disbursements for experts and interpreters should
be payable in all cases, as it would be unreasonable to expect
them to take on a share of the risk, as they are not in a position
to assess the prospects of success.
You are concerned that legitimate appeals will
be restricted by these proposals. The purpose of the new proposals
is to target legal aid resources on the more meritorious cases
and reduce the number of weak cases reaching the higher courts.
The consultation paper asks specifically for views on how the
prospects of success test might be framed. We note that you would
favour a test based on real or reasonable prospects of success,
which I take to be a lower hurdle than the two tests we have proposed.
We will, of course, look carefully at the results of the consultation
exercise and reach a final decision in the light of your views
and those of other respondents. Decisions on whether legal aid
for the review and reconsideration should be awarded will be made
by the Tribunal judge after the reconsideration hearing has concluded.
The award will be based on the prospects of success of the case
at the time when the application was made for the review of the
AlT appeal decision.
I must stress that this is not a "no win,
no fee" arrangement; unsuccessful cases after reconsideration
will still be awarded legal aid if the Tribunal judge decides
the application for the review of the AlT appeal decision had
been properly made. This will ensure appellants are not restricted
from bringing legitimate challenges while protecting against abuse
of the asylum system.
The consultation exercise closes on 17 December
2004. No final decisions have been made, and we will consider
the responses to our proposals very carefully before deciding
the way forward.
I hope my response has helped to clarify our
intentions. I am copying my letter to Sir Duncan Ouseley and Sir
Andrew Collins, as before
Baroness Ashton
8 December 2004
THE ASYLUM
AND IMMIGRATION
TRIBUNAL—THE
LEGAL AID
ARRANGEMENTS FOR
ONWARD APPEALS
1. FOREWORD
The Asylum and Immigration Tribunal is scheduled
for implementation in April 2005. The new legal aid arrangements
for the review and reconsideration of decisions of the AIT will
be implemented in line with this timetable.
The written consultation on the regulatory framework
underpinning the proposals began on 8 November and finished on
17 December. The LSC's consultation on contract changes with suppliers
began on 13 December and is scheduled to finish on 4 February.
The DCA is currently in the process of analysing
the responses received to the consultation on the regulations.
The DCA is very aware that the scheme has caused concern amongst
stakeholders. To ensure that the aim of discouraging weak applications
can be achieved without compromising the principle of access to
justice, it is important that time is taken to carefully consider
the responses received and how the necessary balance can best
be achieved.
When decisions have been taken on the detail
of the scheme further evidence will be submitted to the Committee.
In the interim, the following information is intended to provide
the background and context to the proposals.
2. SUMMARY
The Asylum and Immigration (Treatment of Claimants,
etc) Act 2004 (AI(TC)) was enacted on 22 July 2004. Section 26
of the Act creates a new single tier Asylum and Immigration Tribunal
(AIT), for all asylum and immigration appeals. It also inserts
new sections 103A through to 103E into the Nationality and Immigration
Act 2002 (NIA), which provide for a new system of higher court
oversight of decisions of the AIT and a regulation making power
for new legal aid arrangements. (See Annex A for a process
chart setting out the new system of higher court oversight.)
— Section 103A provides for a party
to the appeal to apply for a review of the AIT's decision. Depending
on where the original appeal was heard the application is made
to the High Court of England and Wales, the High Court of Northern
Ireland or the Outer House of the Court of Session. If the appropriate
court thinks the AIT may have made an error of law it can order
the appeal to be reconsidered by the Tribunal.
For a transitional period, while the new process
beds down, a Senior Immigration Judge (SIJ) of the AIT will consider
review applications in the first instance—this process is
being referred to as the filter. If an application is rejected
the applicant can opt for the High Court to look at the application.
— Section 103D provides the Secretary
of State with a regulation making power for new legal aid arrangements
for the review and reconsideration stages under section 103A.
Under the new arrangements legal aid will be awarded retrospectively,
in the majority of cases by the Tribunal judge following reconsideration,
and in a limited number of cases by the High Court judge following
determination of the review application.
3. BACKGROUND
Section 26 of the AI(TC) was introduced in response
to continued concern that the asylum system is being exploited
by disingenuous economic migrants and opportunistic legal advisors.
The asylum and immigration jurisdiction is unique
in that there is an incentive to delay proceedings. Under the
current process appeals are handled within a multi-tiered structure.
It has the potential to be time-consuming and open to systematic
abuse both within the Immigration Appeal Tribunal's jurisdiction
(IAT) and through access to the higher courts. Under the current
process it can take 65 weeks from receipt of the asylum application
by the Immigration and Nationality Directorate (IND), through
to promulgation of the IAT's determination following a substantive
appeal hearing.
UNMERITORIOUS APPEALS
During the passage of the AI(TC) the Government
was asked to provide evidence of how the system is being exploited.
A key part of this evidence is the fact that a large number of
cases are pursued beyond the first tier of appeal, but very few
of these, are ultimately successful. The statistics for 2003 showed
that fewer than one in ten of the cases that seek permission to
appeal to the IAT succeed in reversing the decision on their case.
On 6 July 2004 Lord Filkin wrote to House of Lords colleagues
setting out the reasoning behind this statistic. A copy of the
letter was placed in the House of Lords library. See Annex
B.
More recent statistics have been compiled for
the period September 2003 through to October 2004, and they demonstrate
that this figure of one in 10 has not significantly changed. See
Annex C.
Whilst it is not suggested that every unsuccessful
cases is an abusive one, the fact that the failure rate is so
high strongly suggests that applications are routinely being made
despite the fact that the case has no prospect of succeeding.
HOME OFFICE
APPEALS
One potential defect in the methodology used
to compile the statistics in Annex B is that, at the time,
it was not possible to identify whether an application for permission
to appeal to the IAT had been made by the appellant or the Secretary
of State. This has lead to suggestions that the Home Office is
equally guilty of making weak and unfounded applications. Anecdotal
evidence has always suggested otherwise, and the statistical data
now available provides confirmation. Very few applications for
permission to appeal to the IAT are made on behalf of the Secretary
of State, but of those that are made the success rate is high.
Around 90% of applications are made by appellants.
The success rate of this 90% is low however. Only 28% of applications
are allowed. By comparison, the success rate for the applications
made on behalf of the Secretary of State is 80%. (The statistics
are set out in full in Annex D.)
Statistics are not available for the outcome
of substantive IAT appeals by party. However, if the figures were
available it can be assumed that the overall success rate for
those cases in which the appeal is brought by the appellant would
by worse than one in 10.
LEGAL AID
The huge increase in legal aid expenditure also
raises concerns that the system is being exploited. Between 1997-98
and 2003-04 legal aid spending increased from £33.4 million
to £201 million. It is accepted that this dramatic increase
in costs has been brought about by a number of factors including:
— The introduction of legal aid for
representation at appeal—which became available from January
2000 (prior to this it was restricted to advice and assistance);
— Past increases of the number of persons
seeking asylum and subsequent appeals; more recently numbers have
fallen; and
— Backlogs of initial decisions and
appeals being cleared by the Home Office and the IAA.
These factors alone do not account for the huge
increase in expenditure however. Regular audits and peer review
by the Legal Services Commission highlighted over-claiming and
issues regarding the quality of advice given. This is where the
LSC have identified unecessary or duplicate work completed by
suppliers when their bills have been audited.
There was also evidence that there was duplication
of work occurring. In 2002, there were 85,865 asylum claims yet
the LSC issued over 156,000 new matter starts in immigration.
Whilst this figure also represented non-asylum matters, and cases
where clients had changed representative for legitimate reasons,
the position was not entirely explained. [27]There
is anecdotal evidence that clients were shopping around for advice
and suppliers continued to pursue unmeritorious cases under public
funding.
4. REFORMS
In response to the concerns about increasing
expenditure and concerns about quality a series of reforms were
introduced in April 2004.
EXPENDITURE
The measures introduced to bring asylum legal
aid under effective control and to cut out unnecessary expenditure
include:
— Introducing a financial threshold
of five hours for the initial decision-making process, which can
only be exceeded with prior authority of the LSC.
— Ensuring that no legal aid work is
undertaken in asylum appeal cases without prior approval from
the LSC.
— Introducing exclusive contracts for
clients subject to Home Office fast track processes to reduce
unnecessary changes of solicitor.
— Applying financial funding limits
to individuals irrespective of how many times they changed suppliers
and introduced the Unique Client Number to help track clients
and reduce unnecessary duplication of work.
— Removing from the scope of legal
aid attendance at the Home Office interview apart from in exceptional
circumstances.
— The LSC took over responsibility
from the Home Office for the funding of the Immigration Advisory
Service and Refugee Legal Centre which means that £15 million
of public funds is now focused on clients that meet the LSC eligibility
criteria.
The revised system means that firms have to
approach LSC at two points before continuing with an asylum case,
when they reach the five-hour threshold under Legal Help and for
grant of Controlled Legal Representation (CLR), for representation
at IAA. Figures for the first six months of this year show that
one-third of applications for Legal Help extensions are being
refused or reduced. In that same period 29% of applications for
CLR were refused with only 10% of those decisions to refuse funding
subsequently being overturned on appeal. Based on the firms reported
outcome of cases, there has also been an increase in successful
outcomes for clients since the beginning of the financial year.
This indicates that funding is being targeted more effectively
on meritorious cases.
(A table setting out the LSC's projected savings
over the coming years is attached at Annex E.)
QUALITY
Two principal measures were taken to address
concerns about the quality of supply that had been identified
through the LSC's cost assessment and peer review audit processes:
— The introduction of accreditation
for all lawyers and caseworkers doing legally aided asylum work.
— Competitive bid rounds for immigration
before awarding contracts for 2004-05.
Accreditation will be mandatory for everyone
providing legal aid immigration and asylum advice from April 2005
and was introduced earlier when exclusive contracts were awarded
for the Harmondsworth fast track. Extensive work has been carried
out with the Law Society and Office of the Immigration Commissioner
to ensure that the standards have been pitched at an appropriate
level and the assessment process is rigorous but fair.
Before awarding contracts for this financial
year a number of Regional Offices carried out competitive bid
rounds to award contracts only to those suppliers who could meet
the required standards on cost and quality. As a result of these
bid rounds more than 100 suppliers were not awarded contracts.
5. NEW LEGAL
AID ARRANGEMENTS
Despite the success that has already been achieved
in terms of improving the appeal process there is a limited amount
that can be achieved through reforms to the current multi-tiered
system. The introduction of a single tier of appeal coupled with
a new system of higher court oversight will reduce the opportunities
for the process to be exploited.
Processing times will be faster and cases will
reach finality sooner. Not only is this in the interests of the
taxpayer, but also the genuine asylum seeker.
By comparison with the current 65 week period
that it can take for an application to be processed from receipt
by IND through to promulgation of the IAT's decision, corresponding
time scales under the new process will be reduced by at least
half.
In order for these time scales to be achieved
however, it is essential that the AIT and the High Court are not
overloaded by weak applications at the review stage of the process.
To address this issue, in tandem with the introduction of the
single tier AIT, new legal aid arrangements for the review and
reconsideration of AIT decisions are being introduced. As the
evidence demonstrates a great deal has already been done to tighten
controls on legal aid and remove poor quality suppliers from the
system. At the latter stages of the process however, the Government's
position is that more still needs to be done to ensure weak applications
are discouraged.
PROPOSALS
Under the new arrangements legal aid will be
awarded retrospectively, usually by the Tribunal following reconsideration.
The arrangements will not apply if the review application was
made by the Home Office or if the application is being dealt with
under the Fast Track process. The decision as to whether or not
funding is awarded will be based on a test framed in terms of
"prospects of success" ie how likely the case was to
succeed at the time the application was made.
— Advice on whether or not to apply
for a review of the AIT's decision will be covered by the existing
arrangements under Controlled Legal Representation (CLR). When
the representative is approached for advice they will need to
assess whether the case meets the "prospects of success"
test and consequently whether or not it should be pursued.
— If the representative seeks counsel's
advice the cost of this advice will similarly be covered by the
existing arrangements under CLR.
— If the representative is satisfied
that the case does meet the prospects of success test and agrees
to provide representation, funding will not be awarded until the
Tribunal judge, or in limited circumstances, the High Court judge,
makes an order under section 103D.
REVIEW STAGE
— If a case is unsuccessful at the
review stage, in the majority of cases funding will not be awarded.
If counsel has been involved in the preparation of the review
application, their work will similarly not be funded.—In
limited circumstances the High Court will have discretion to award
funding.—The High Court's decision is final.
RECONSIDERATION STAGE
— If a case is successful at the review
stage, at the end of the reconsideration process the Tribunal
judge will decide whether or not funding should be awarded based
on whether a case met the "prospects of success" test
when the application was made. Again, if counsel has been involved
their work will not be funded if an order under section 103D is
not made.
— If funding is refused an application
for a review of the decision not to make a section 103D order
can be made to the Tribunal. Representatives who pursue a case
in good faith can expect to be paid. For example, if a decision
on a lead case affects the prospect of success of an individual
case, funding could still be awarded. The Tribunal judge will
be considering whether the case had sufficient merit when the
application for review was made. The same could apply if the appellant's
circumstances had changed since the review application had been
made. However, if a representative can be seen to have dripfed
information about his client's case in an attempt to paint it
in the best light, then funding would not be forthcoming.
The intention behind the proposals is to discourage
weak applications from reaching the Tribunal and the High Court,
not to discourage suppliers from pursuing genuine cases.
If an application is unsuccessful at the review
stage in the majority of cases funding will not be awarded. This
is because an unsuccessful outcome at this stage of the process
is likely to be indicative of the fact that the case is without
merit and one which should not have been pursued. The test that
the Tribunal and the High Court will apply when deciding whether
or not a case should be reconsidered will be whether there is
a real chance that the outcome of the case will be different.
Asking suppliers to make an accurate assessment of whether an
application will be successful is not unreasonable. They are not
being asked to predict whether a case will be decided differently,
but whether there is a strong enough case for reconsideration.
A good lawyer can be expected to make this assessment.
The Government recognises however that there
will be circumstances when an application is unsuccessful but
funding should nevertheless be awarded. The High Court therefore
has discretion to award funding in a limited number of circumstances.
Representations were received on this issue in response to the
consultation paper and consideration is being to the how widely
the High Court's discretion should extend.
If an application is successful at the review
stage and a reconsideration is ordered, at the end of the reconsideration
process the Tribunal judge will decide whether funding should
be awarded. This decision will be made based on the case's prospects
of success at the time the application was made. The scheme will
not be "no-win, no-fee". If a case is unsuccessful at
the reconsideration stage, provided the Tribunal judge is satisfied
that the case meets the prospects of success test funding will
be awarded. The Government is aware of the difficulties inherent
in anticipating the final outcome of a case. Representatives are
therefore being asked to make an assessment of a case's prospects
of success and not speculate as to whether it will be decided
differently.
Representations were similarly received on this
issue and consideration is also being given to how prospects of
success should be defined.
Department for Constitutional Affairs
19 January 2004
27 New matter starts are the number of legally aided
cases which solicitor firms may take on after being given authority
to do so from the LSC. The number of new matter starts should
therefore be at least comparable to the number of asylum claims
even if the appeal rate is 100%, which it is not. If the number
of new matter starts is almost double the number of claims this
is a strong indicator that unnecessary and duplicated work is
being carried out Back
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