Examination of Witnesses (Questions 240
- 259)
TUESDAY 17 JANUARY 2006
MR KEITH
BEST, MR
COLIN YEO,
MR CHRIS
RANDALL AND
MR MATTHEW
DAVIES
Q240 Steve McCabe: I am certainly
aware of that.
Mr Randall: I can speak as somebody
who has spent 17 years in a legal aid firm and for the last two
years I have only done privately based work. There is one very
simple calculation about money: if you speak to legal consultants
about how law firms are run, they estimate lawyers will do 1,000
chargeable hours a year and they estimate you should pay a lawyer
about one-third of what that lawyer brings in, but, if you multiply
£55 an hour by 1,000, you get £55,000 and, if you divide
it by three, you get £20,000, but you try and recruit a solicitor
to do legal work at that rate, so there is a basic financial issue.
Certainly the annual fear that your entire practice could be wiped
out by an unlucky or an unfortunate audit by the Legal Services
Commission, when I was considering whether I was going to buy
into my practice to continue it or not, certainly that weighed
heavily on my mind.
Q241 Steve McCabe: I am not a lawyer,
so I am not quite sure what constitutes an unlucky audit. I think
the other thing you said in your written evidence is that you
implied that you did not think there were enough solicitors providing
good-quality legal advice. Is that the case? I think you mentioned
a figure, if you take level one and level two people, of around
1,500 or something. I just wondered what figure you think it should
be and where the gap is at the moment.
Mr Davies: I think the LSC had
estimated that they wanted, at some point I read, at least 2,500
people to deliver it nationwide and they have not got that. There
was a recent accreditation round and that figure may be slightly
higher, but I already know that, of these 1,500 people, some of
them are no longer doing the work and I know that for a fact.
Accreditation was a good thing in one way because it made all
us practitioners have to sit through quite rigorous and difficult
exams and those that were truly incompetent working in the sector
would have failed those exams, so it has possibly weeded out the
incompetent. It has also driven out some people who had been doing
the work for a long time and just thought this was the last straw,
having to sit exams and stuff. Now, as a firm, recruiting someone,
whenever we decide to recruit someone, we know we are going to
have to put them through a training regime and they have to sit
exams which we will have to pay for and, until they reach a certain
level in their accreditation, they are not much use to us in terms
of what they can do.
Mr Randall: I think you also need
to look at the position nationally. I think in London there are
probably sufficient, but there are areas out of London, particularly
in the north of England and the north-west, where you start to
have to travel really quite a long way to find a firm, a supplier
that does legally aided immigration work. The Legal Services Commission
will give you more information about that and certainly you need
to look at it on a national basis rather than a localised basis.
London is not so much a problem.
Q242 Steve McCabe: But different
parts of the country—
Mr Randall: Yes, they call them
"advice deserts".
Q243 Steve McCabe: I think I have
heard that expression. Something that sadly I have come across
and I think possibly all of my colleagues are familiar with is
the situation where someone who is seeking advice may well be
charged for the solicitor to write a letter to me to ask me to
intervene with the Minister. I always tell that person that I
am quite happy to do that if they just come and see me and they
do not need to be charged for it and I have frequently actually
suggested to some solicitors that they might want to donate that
fee to charity in return because I am not sure that constitutes
fairness. Are you familiar with that experience? Have you come
across that in other practices which might verge on malpractice?
I just wondered what your own organisation and the Law Society
were doing to root out people who behaved like that who almost
certainly give immigration advisory lawyers a bad name.
Mr Randall: These are people who
would already be regulated, presumably, solicitors by the Law
Society or other representatives by the OAC?
Q244 Steve McCabe: Yes.
Mr Randall: The issue of approaching
MPs is more and more important with immigration advisers, because
you receive answers to your letters in a way that we do not.
Q245 Steve McCabe: But do you think
it is fair to charge a client for writing a letter to ask an MP
to do what he or she would do anyway?
Mr Randall: I would give the clients
the choice and say, "You may wish to go and see your MP and
make this request." Certainly I need to know what the MP
is saying, because I need to make sure that the MP is putting
the points which need to be put, and quite often I would write
to an MP and say, "These are the issues, these are the letters
that I have written. Would you like this client to come and see
you to discuss this at your meeting?"
Q246 Steve McCabe: How much would
you charge for doing that normally?
Mr Randall: I would charge what
my hourly rate was for doing that letter. It depends how long
it took me.
Q247 Chairman: I have had cases of
solicitors charging £50.00 to an asylum seeker, who cannot
get legal aid because they are waiting an appeal, just because
the asylum seeker wants my office to ring up IND to find out where
their case has got to. Surely you should condemn any solicitor
who charges for writing such a letter when all they need to say
to the person in front of them is, "Give this MP a ring",
and they will find out the answer?
Mr Randall: Certainly. As I said,
I would give the client the choice of making that investigation,
as you are suggesting, themselves.
Q248 Chairman: If somebody wrote
the letter without telling the client that they could go to the
MP themselves and get this service, would you condemn that?
Mr Randall: I am sorry, could
you say that again, please?
Q249 Chairman: If a solicitor wrote
the letter and charged the client without ever saying to the client,
"You do not need me to write this letter for which I will
charge you. All you need to do is ring up Mr McCabe's office or
Mr Denham's office", would you condemn them for doing that?
Mr Randall: Yes, but they have
not acted on instructions in that case. What I would say is that
it is important that when the MP makes the investigation they
ask the right questions. It is quite often the case that the case
as put by the client to the MP in surgery does not carry all the
points which need to be put, or does not carry the right emphasis,
or does not provide the right evidence, and then you have actually
wasted even more people's time because the letter comes back from
the minister but it does not address the issues. It is hard enough
to get the minister to look at matters once, but to get him to
look at it twice is even worse; so it is an important stage in
a case and it does repay investment of time and energy.
Q250 Steve McCabe: Let me be absolutely
clear, because I do not want to be unfair to you. I personally
think it is a very difficult practice to justify. Are you saying
that, on balance, you think it is appropriate for solicitors to
charge for that kind of service and it happens as routine? You
do not have a problem with that. Is that what you are saying?
Mr Randall: Certainly not in a
publicly-funded case. Clearly not. If you are acting on instructions,
if you have raised the matter with your client and said, "You
can go. I think it is in your interests for me to do this much
work so that the right questions are asked and so that your case
progresses in the quick way that you want it to", or in a
quicker way, we hope, then I think that is fair.
Mr Davies: Can I come in on that?
I think it depends on where you are in your case. If you have
got a longstanding on-going case which you are advising the client
about, then you have certain weapons in your armoury—I say
"weapons in your armoury"; I should not have to say
this—in terms of finding out from the Home Office what is
happening on your client's case. Why have we not heard anything
from the Home Office for over a year and a half? If I ring the
Home Office I will get through, after maybe five or ten minutes,
to the Inquiry Bureau, I will ask them, "What has happened
on this case", and all they will tell me is, "It is
under consideration." "Can I be put through to the case-worker
dealing with it?" "No, you cannot; that is not our practice."
That is all we can be told. So in our armoury to try and get things
resolved, and we have a duty to our client, after a year of hearing
nothing from the Home Office, we have a duty to take steps, and
the weapons we have: we can write to the Home Office—we
will not get a response—we can call them—we will not
be told anything—we can write to the Subject Access Bureau,
who, under the Data Protection Act, will give us a full copy of
our client's file, and that will come back in two months, and
that is helpful.
Q251 Chairman: Mr Davies, the point
Mr McCabe is raising and I have raised is not when you are talking
about a complex case on which the MP may well like some legal
advice, but simple progress chasing where all that somebody wants
to know is where their case has got to, and lawyers are sometimes
charging people simply for the lawyer to write to the MP to make
what is a straightforward phone call to the IND to find out where
the case has got to. In those circumstances, I am trying to establish
where you think charging is justified when all that needs to be
said is, "Talk to your MP and they will be able to find out
for you"?
Mr Davies: You may advise your
client, that in this particular case the thing that you should
do is raise it with your MP, because you will get a reply of some
sort. Whether you should charge for it, I agree with Chris that
it is often better for the solicitor to write the letter. I have
said to clients, "Contact your MP", and often the MP
will write to me and say, "Could you let me know what is
happening with this case before I contact the Home Office?"—that
is quite common—but if it is in your work and it is part
of progressing your client's case and you are writing a letter
on their behalf, I do not see why you should not charge them.
If you walk into someone's office and they say, "I can sort
your case out if you give me £50", and what they mean
by that is they will write you a one-line letter, that practice
is wrong, definitely, but if it is a solicitor trying to progress
a case and they think one way to progress it is to write one letter
setting out the whole history for the MP to make it easy, I do
not see why they should not charge for that.
Mr Randall: No, provided they
have informed the client that they can do it directly themselves
if they wish.
Q252 Mr Winnick: Last week Migration
Watch UK gave evidence, and I think probably the person who gave
evidence would argue that we gave them a hard time; so in order
to have equality of witnesses before us some of our questions
may appear somewhat harsh, but I hope not. Either side of the
two organisations, the Home Office argues that the recent rise
in application refusals, from some 10% in 2001-02 to 19% in 2004-05,
reflects (and I quote the Home Office), "increasing abuse
within rising numbers of applications, including from people posing
as genuine visitors who then claim asylum after entering the UK,
from organised crime and people smugglers and other migrants who
are otherwise unable to qualify for entry". Do you feel that
is an unfair assessment by the Home Office?
Mr Randall: May I check, first
of all, that that is an increase of 10 to 19% in entry clearance
refusals or in all refusals?
Q253 Mr Winnick: Yes. It is from
the Home Office.
Mr Randall: I am just trying to
gauge whether the figures relate to applications made to posts
abroad or whether it is in-country applications.
Q254 Mr Winnick: It does not say,
but I think it would be in posts abroad.
Mr Randall: It sounds like an
entry clearance application, so I will let my colleague start
and maybe come in.
Q255 Mr Winnick: Unfair?
Mr Best: It may well be; it may
well not be. Where is the evidence of abuse? That is the question
I would put back to the Home Office. Unless this kind of evidence
appears in the explanatory statements of entry clearance officers
or the notes of the reasons for refusal of applications, then
it seems to me it is largely anecdotal. That may be an unfair
statement, but I think one needs to drill down more into what
gives rise to the Home Office being able to make such a statement.
Q256 Mr Winnick: That is a somewhat
evasive reply, Mr Best. Would you deny that there is increasing
abuse amongst the sort of categories which are quoted by the Home
Office, people claiming to be genuine travellers, who have no
intention of leaving the United Kingdom, but there are organised
gangs who are trying to get people smuggled into the United Kingdom,
if possible through legal smuggling rather than other ways, and
aspiring migrants who would not otherwise be able to get to Britain,
who may have the best of motives in wanting to improve their lot
but have no claim to come to Britain. Would you deny there are
such groups?
Mr Best: First of all, we cannot
assist the Committee with any hard evidence—I stress that—so
what I am about to say is largely anecdotal. It would be foolish
to pretend that there is not abuse and it may well be that, with
an increase in the volume of applications, the volume of abuse
is increasing as well. I think one has to look at that broad statement,
however, and look at the different categories that it may encompass.
First of all, people who are asylum seekers. We know there is
one post, for example, where the ambassador himself, I understand,
has said that it is the practice to refuse Nigerian applications
because, if they are young, they are likely to come to the UK
and claim asylum. If that is the case, it is an improper use of
immigration control.
Q257 Mr Winnick: The High Commission?
Mr Best: It is an embassy. It
is not in Nigeria. It is another adjoining country. It would be
wholly improper, if that were the case, that entry clearance officers
were refusing young Nigerians to come to the UK in that country
simply because they were likely to turn out as asylum claimants.
Secondly, of course, there are those who wish to claim asylum
but, as you know, you cannot apply at a post overseas to come
to this country to claim asylum—there is no immigration
category—and it is recognised in Article 31 of the 1951
Convention that people will have to use forged documents or will
have to use false passports or, indeed, will have to apply to
come as visitors when in fact their intention is to claim asylum,
because that is the only way they can escape from the country
which is persecuting them and get to another country, such as
the UK, and claim protection. Then there is the group who are
subject to the traffickers and the smugglers. Increasingly it
is our anecdotal evidence that asylum seekers are having to turn
to the hands of smugglers simply because the controls are so great
to prevent anybody coming to the UK that that is the only way
they can get away from their country of origin and come to the
UK in order to claim protection.
Q258 Mr Winnick: Let us leave aside
asylum seekers and let us concentrate on those who are in no way
asylum seekers and would not be considered to be genuine asylum
seekers. There are smugglers involved as well, criminal gangs,
are there not, who want to try and get people into this country
who would not claim to be the subject of any kind of abuse in
their host country but simply want to live in the United Kingdom?
Mr Best: I think you would find
that mostly for those who are coming into the country illicitly
through that mechanism, they are doing so more through the facilitation
of traffickers rather than smugglers. The smugglers tend to concentrate
on those who need to get into the country and then will fend for
themselves. The traffickers will probably have an enterprise which
involves finding people work whilst they are here and then, in
effect, using them as indentured labour: because, of course, what
those people will have been told in clubbing together with their
family to give them money to pay the traffickers is that when
they come to the UK they will have a well-paid job, they will
be able to send money back home, remittances to their family,
et cetera in fact the reality is quite different: they are able
to retain only a pittance, and if they fail to make the payments
back to the traffickers, not only are they at risk but also their
families back home are at risk, and, of course, as they are illegal
workers in this country, they cannot turn to the authorities here
for any kind of salvation. It is the most awful form of exploitation
and should be stopped in whatever way possible.
Q259 Mr Winnick: So there are criminal
gangs?
Mr Best: Yes.
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