Supplementary evidence submitted by the
Department for Constitutional Affairs
1. FOREWORD
The Government previously submitted evidence
to the Committee on 19 January 2005 setting out the background
to the proposals for new legal aid arrangements for review and
reconsideration of decisions of the Asylum and Immigration Tribunal.
The Tribunal is scheduled for implementation in April 2005.
It was noted in that submission that further
evidence on the detail of the scheme could not be provided because
consideration was still being given to the consultation responses
received on the regulations that will underpin the new arrangements.
The Government felt that because of the issues at stake it was
important to give careful consideration to the various points
raised in the responses before the policy was finalised. The Government
is grateful for the Committee's patience.
2. WHY ARE
THE PROPOSALS
NECESSARY
The new arrangements are being introduced to
combat abuse of the appeals process by disingenuous economic migrants
and opportunistic legal advisors and to reduce the number of weak
applications reaching the Tribunal and the higher courts. This
is imperative if the aims of the single tier are going to be achieved,
which are to increase speed and efficiency within the appeals
process and target public money and resources at genuine claimants.
The previous evidence submitted to the Committee
demonstrates that the Legal Services Commission (LSC) has already
introduced a comprehensive package of reforms to drive up the
quality of legal representation and reduce exploitation of the
system. These initiatives include:
— introducing a financial threshold
for the initial decision making stage;
— removing attendance at Home Office
interviews from the scope of legal aid, save in exceptional circumstances;
— taking the application of the merits
test for asylum appeals in house; and
— introducing compulsory accreditation.
What the evidence also shows however, is that
high volumes of legally aided, unmeritorious cases are still being
pursued beyond the first tier of appeal. Between 2003 and 2004
approximately 30,000 decisions were made in asylum cases on permission
applications to the Immigration and Appeal Tribunal (IAT). Of
these decisions, only 33% resulted in permission being granted.
[34]The
remaining 67% of applications were dismissed. [35]
At the permission stage the IAT is not deciding
whether a case will win or lose but whether it is arguable and
ought to be looked at again, ie whether the case has merit. Therefore,
67% of the cases, for which permission to the IAT was sought,
were considered by the AIT to be unmeritorious. Whilst, as has
been previously acknowledged, not every unsuccessful permission
application is necessarily an abusive one, a success rate as low
as this is indicative of the fact that the system is being exploited.
It also demonstrates that although a great deal has already been
achieved further reforms are necessary to reduce the potential
volume of weak cases under the new appeals structure.
3. THE FINALISED
SCHEME
The new arrangements have been designed to encourage
representatives to focus more carefully on the merits of a case
before agreeing to provide representation. By making funding retrospective
the scheme introduces an element of risk, which is that if a representatives
who choose to provide representation in a weak case, may not be
paid for their work. The DCA considers this a proportionate response
to tackling the problem of high volumes of weak applications.
Public money and resources are finite and should not be used to
fund and process unmeritorious cases. The proposals are not intended
to restrict access to justice however, or oust the jurisdiction
of the higher courts.
The Government is committed to securing access
to the courts and recognises the importance that higher court
oversight plays in delivering justice in individual cases and
in promoting developments in the law and improving the quality
of judicial decision making. The Government therefore also recognises
that any initiatives aimed at reducing the potential volume of
weak cases moving through the appeals process must not be introduced
at the expense of access to the courts.
A balance needs to be struck and this is why
very careful consideration has been given to how the scheme is
structured. A summary of the finalised scheme is attached at Annex
A.
THE PROSPECTS
OF SUCCESS
TEST
One of the key factors in striking this balance
is defining the test that the Tribunal judge will apply at the
end of the reconsideration process when deciding whether funding
should be awarded. In very rare circumstances funding will be
awarded at the review stage, in the majority of cases however,
it will only be awarded following reconsideration. This test is
therefore crucial because it will dictate the level of risk that
the representative will assume when deciding whether to provide
representation.
The DCA consulted on two options. Option 1 proposed
framing the test in terms of "very strong prospects of success"
and option 2 proposed framing the test in terms of "significant
prospects of success". Of the two options consulted on, the
second was considered to be preferable.
Taking into account the consultation responses
received the Government proposes that the test that the Tribunal
judge will apply will be framed in terms of the second option
and whether the case had significant prospects of success at the
time the application was made.
It will be for the judiciary to interpret what
"significant prospects" means in practice. The intention
however, is that if a case is successful at the review stage and
the representative has acted in good faith in bringing the case,
funding should be awarded. It is important however, that success
at the review stage will not in itself be sufficient to secure
funding, which is why the test is being framed in these terms.
Every case must be dealt with on an individual basis.
The Government is aware of concern amongst consultees
that the proposals will force representatives out of the market
because of financial uncertainty. Creating uncertainty is not
the purpose of the scheme. Taking on a case will involve risk
only if its prospects of success are poor. Representatives that
act conscientiously and pursue cases with merit can expect to
be paid.
Concern has also been expressed that an unsuccessful
outcome will result in funding being refused automatically because
the Tribunal judge is likely to decide a case's prospects of success
based on the ultimate outcome of the case. Representatives should
be reassured that this will not be the case. The Tribunal judge's
decision will be made based on the case's prospects of success
at the time the application was made and the information available
to the representative at the outset. Successful cases will always
be funded but if a case is unsuccessful the funding decision will
not be directly linked to the outcome of the case on reconsideration.
FUNDING AT
THE REVIEW
STAGE
At the review stage the powers of the Tribunal
and the High Court to award funding will be limited, and in the
majority of cases if an application is unsuccessful funding will
be refused. This is appropriate because usually if an application
is unsuccessful that will be because the Tribunal or the High
Court has concluded that the application lacks merit and does
not require further reconsideration. It is not unreasonable to
ask representatives to make an accurate assessment of whether
an application has merit and will be successful. The question
that has to be considered is not whether the case will win or
lose but simply whether there are arguable grounds to answer.
As outlined in the evidence previously submitted
to the Committee the Government recognises that there will be
circumstances when an application is unsuccessful but funding
should nevertheless be awarded. The Tribunal and High Court will
therefore have discretion to award funding if the application
would have had significant prospects of success but a change in
circumstances or a change in the law since the application was
made has resulted in its dismissal.
Consideration was given to whether or not there
should be a wider discretion for funding to be awarded at the
review stage but this was not thought to be necessary. There will
be circumstances where initially strong applications fail for
unforeseen circumstances. This issue is addressed by giving the
Tribunal and the High Court discretion to award funding in exceptional
circumstances. There will also be cases where the prospects of
success are difficult to assess. This issue is addressed by including
a risk premium or uplift in the rates payable to suppliers. In
all other cases if an application is unsuccessful that is indicative
of the fact that the application lacked merit and it is therefore
appropriate that funding should be refused.
THE RISK
PREMIUM
Work for the review and reconsideration stages
of the process will be paid for as part of Controlled Legal Representation
(CLR). Under the current system work done at the adjudicator and
IAT stages is paid for as part of CLR and High Court work is claimed
as Licensed work. In line with the introduction of a single tier
of appeal it is considered appropriate to administer funding for
the new process through one scheme.
As part of its consultation on the contract
changes for the new arrangements the LSC consulted on a risk premium
of 25% of CLR rates in addition to the basic rate. This was considered
to reflect the level of risk that suppliers would face in reality,
balanced against the need to control costs. Consultees expressed
concern that this uplift would not adequately reflect the risks
involved however. As a consequence the proposed risk premium was
reassessed and has been increased to 35%.
The LSC is confident that a risk premium of
35% will be appropriate in the majority of cases. However, the
contract allows for flexibility and if a case raises an exceptionally
complex or novel point of law or a matter of significant wider
public interest the supplier can apply to the LSC for CLR to be
paid at a higher rate. Therefore in cases that meet this criteria
the supplier will be able to apply for an uplift over and above
35%.
REVIEW OF
FUNDING DECISIONS
The regulations include provision for decisions
on funding following reconsideration to be challenged on application
to the Tribunal. In response to the consultation responses received
this right can be exercised by either the supplier or by counsel.
An oral hearing can be requested, which can be granted at the
Tribunal's discretion.
Consultees have expressed concern about the
Tribunal's impartiality to review its own decisions. The regulations
therefore prescribe that reviews must be conducted by a different
senior Tribunal judge to the judge that made the original funding
decision. The costs of making a successful review application
will be paid as part of the overall costs payable under section
103D.
4. CONCLUSION
The new arrangements have not been designed
to restrict access to the courts but to discourage weak applications.
This is a legitimate aim. It will facilitate speed and efficiency
within the appeals process so that cases reach finality earlier
and it will also ensure that genuine claimants are the focus of
public money and resources rather than disingenuous economic migrants.
It will only be representatives that agree to
provide representation in weak cases who risk not being paid for
their work. Representatives that act in good faith and properly
assess the merits of a case before agreeing to provide representation
can expect to be paid.
Department for Constitutional Affairs
21 February 2005
34 These statistics are taken from the Immigration
Appellate Authority information database for the period October
2003 to September 2004 Back
35
A percentage of dismissals are overturned on statutory review
but this is a very small percentage of the overall number of applications-less
than 1%. This statistics is taken from the figures produced by
the Administrative Court Back
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