Evidence submitted by Immigration Law
Practitioners' Association (ILPA) (LAR 133)
"Good practice takes time and trouble,
but is never wasted. It shows in the standing and reputation of
practitioners, in the respect in which opponents and tribunals
hold them, and above all in the satisfaction of doing a job well.
In the end, by avoiding disasters, it also saves money."
Lord Justice Sedley, Foreword, Best Practice Guide to Asylum &
Human Rights Appeals, Mark Henderson, ILPA 2003.
INTRODUCTION
About ILPA
1. ILPA is a professional association with
some 1,200 members, including barristers, solicitors and advocates
practising in all aspects of immigration, asylum and nationality
law. Academics, non-government organisations and others working
in this field are also members. ILPA exists to promote and improve
the giving of high quality advice through teaching, provision
of resources and information. ILPA is represented on numerous
government and appellate authority stakeholder and advisory groups,
and has provided oral and written evidence to the Constitutional
Affairs Committee in the past.
2. Our response is limited to the proposals
for contracting immigration and asylum work. We have answered
those questions of most direct relevance to this area.
OVERVIEW
3. We recognise that the writing is on the
wall and that graduated fees and block contracts are coming. Our
assessment of the proposals, however, is that they are not fit
for the purpose of maintaining a sustainable base of high quality,
publicly- funded immigration and asylum practitioners.
4. We do not consider that the proposals
are costs-neutral in respect of advice and representation. The
proposed fees, which have not been calculated by reference to
the historical cost of delivering work to the LSC's existing quality
standards, would significantly reduce remuneration to those suppliers
who are not prepared to cherry-pick the simplest cases to the
detriment of potential clients with complex cases.
5. ILPA has consulted its members on the
financial aspects of the proposals. Responses thus far from members
with "devolved powers" (ie those who have been recognised
by the LSC to work to the desired standard) indicate that the
average time spent on asylum cases, up to initial Home Office
decision, is between 11 and 20 hours per case. The proposal is
to pay £550, said to equate to 8 hours, but which will include
interpreting and translating costs as well as travelling and waiting
time. Hourly rates in immigration and asylum have in any event
seen no cost of living increase since April 2001.
6. The proposed remuneration levels for
asylum are predicated on a case passing seamlessly through the
New Asylum Model process. This is not even fully rolled out yet.
We are very sceptical. The proposals take no account of the so-called
"legacy cases" and "fresh claim cases" that
make up a significant part of members' caseloads.
7. We conclude from our consultations with
members[88]
that there is a real risk that suppliers will decide drastically
to reduce their publicly-funded casework, or to leave the field
entirely, because they see no prospect either of making the work
pay or of reconciling the proposed levels of remuneration with
the professional duties to client and to court that they accept
in taking on any case. Doing a case well is a key part of motivation
for continuing to work in this very difficult field.
8. If the aim is a cap on the overall spend
on legal aid, it would be useful to see estimates of how much
of that spend is the result of Home Office conduct of cases, not
to mention the pace of legal change in this field. One proposal
is to apply the "polluter pays" principle to costs wasted
by Home Office dereliction in the conduct of appeals.
8. It is proposed that the LSC's budget
be tapped to fund "advice" sessions at the Asylum Screening
Unit. According to the LSC's tender for New Asylum Model contracts
in Solihull[89]
these will provide "pre-application information", but
"the advice provided will be generic". The Home Office
should pay for this information service.
Recommendations:
— The AIT be given power to order payment
into the legal aid fund when the Home Office causes delays and
adjournments by turning up without files, failing to comply with
directions or is otherwise the cause of wasted costs.
— The legal aid budget should not be
used to fund generic Home Office information but be reserved for
individual advice and representation.
Whether the timetable for implementation suggested
in Lord Carter's Report is realistic?
9. The proposed timetable for implementation
of the changes in immigration and asylum does not derive from
Lord Carter's Report. Immigration and asylum were expressly excluded
from his review because of "the detailed recent review"
which brought about the 2004 changes (Carter Report 1.16). He
did not exclude immigration and asylum from "the procurement
strategy to 2010", but envisaged "a move towards"
a graduated fee scheme (Carter Report, Chapter 10) He did not
propose the sudden imposition of a new scheme, with everything
done and dusted by April 2007, in which the fees have not been
calculated on the basis of what it costs to advise and represent
clients in accordance with the LSC's own contract standards.
10. As described, those doing publicly-funded
immigration and asylum work have grave concerns about their ability
to survive under proposed regime. Even those would welcome the
reduction in bureaucracy that a graduated regime could bring have
concerns about the amounts of the proposed fees. Organisations
will need to make decisions as to whether to continue in the field
well in advance of April 2007, the proposed date for implementation,
if only to give adequate notice of redundancies, if they opt out.
This problem will not be resolved by treating year one of the
scheme [as proposed] as the pilot—too many suppliers will
be irretrievably lost by then.
11. If the overall aim of these proposals
is to encourage larger organisations offering a multiplicity of
services, then that is simply not achievable by next April.
12. The LSC has stated, in response to an
ILPA Freedom of Information request about its calculations, that
it has not based the proposed fees for immigration and asylum
on historical data because this is not reliably available. All
cases, however, have been reported to the LSC in the same way
within 3 months of closure (or reaching a specified stage) since
April 2004, so data is being accumulated by them.
13. Our recommendations are made, not in
the spirit of postponement at all costs of unwelcome developments,
but in recognition that fixed fees are coming and with the desire
to achieve a scheme that not only is capable of working, but also
is capable of being perceived by suppliers now as workable and
worth giving a chance, rather than one that they shun now, for
fear of being driven out of business later.
Recommendations:
— Full implementation is deferred until
at least April 2008 and is preceded by EITHER a tailored fixed
fee scheme (as was done in all other areas of civil law) OR a
pilot period in which the level at which a case may be removed
from the scheme as "exceptional" is reduced to twice
the fixed fee. Either way, this period should be used to accrue
relevant data on costs in immigration and asylum cases, and on
the experience in practice of fixed fees in this area of law.
— The LSC conduct a detailed "case
mapping exercise" based on a review of work done by quality
providers (ie those with "excellent" Peer Review ratings
or otherwise rated by their peers as the best providers in publications
such as Chambers and enlist the assistance of a number of Level
1 and Not For Profit organisations (allowing adequate time for
the exercise) in deriving realistic figures for fees.
What benefits might be generated for defendants
and others by adopting these proposals? Also what impacts/disadvantages
might result from implementation?
14. The only potential benefits we perceive
are not for clients but suppliers. These are:
— A potential reduction in bureaucracy
because suppliers will not be involved in lengthy negotiations
with the LSC about financial extension applications.
This could, however, be off-set by the need to
hold a multiplicity of block contracts and by the failure of the
scheme to take into account that, for example, clients pass from
being detained to non-detained at different stages in a case and
have needs for advice on the effects of immigration status on
support and welfare.
— A potential reduction of risk because
suppliers will not be subject to an annual audit of sample files,
at which, if they have spent over 10% more than the LSC thinks
reasonable on the files audited, an equivalent percentage of LSC
payments can be clawed back across all files.
But this benefit will be obliterated if the level
of "exceptionality" at which a case is lifted out of
the fixed-fee scheme, is set at four times the fixed fee as is
proposed. There would always be uncertainty while working on a
complex case as to whether the exceptionality level would be reached,
or whether, if not, the bulk of the work would go unremunerated.
For example, at the first stage of asylum Legal Help, if costs
are £2,200.01, they could be claimed in full; if they are
£2,200 they could not, and only the basic £350 could
be claimed—a £1,650 loss on one case. This promises
far too high a level of uncertainty for providers.
15. The main disadvantages we perceive for
clients are:
— High quality providers will leave
the field. Clients will find it more difficult to get high quality
advice. Insufficient work will be able to be done on cases to
ensure that clients can put their case and win—with consequences
include return to persecution or torture, and separation of families.
— Insufficient work will be able to
be done on the multiplicity of problems people face related to
their immigration status, for example detention and destitution.
They will be deprived of their liberty for longer, and will be
hungry and without accommodation for longer.
— The specialist immigration bar will
be destroyed so clients will be deprived of that source of legal
advice on novel and complex points of law in both asylum and non-asylum
cases.
16. We perceive disadvantages for the administration
of justice, at both Tribunal and higher court levels, from reducing
the base of quality representatives, whether at solicitor and
caseworker level or at the Bar. There will be longer hearings
at the AIT because more appellants are unrepresented, and yet
more applications to the higher courts. There will be a risk to
the future development of the law, because the chances of test
cases being overlooked will be increased by the pressure on providers
who remain in the system.
What impact the proposals will have on different
communities (such as Black and ethnic minority and rural communities)?
17. We deal here with both communities and
particular groups.
18. The proposed fixed fee for asylum (although
not immigration cases) includes interpreting and translating fees.
This is unworkable and discriminatory. We understand that the
basis of this proposal is that interpreting is likely to be needed
in almost all asylum cases. We understand that an attempt has
been made to estimate the number of hours of interpreting likely
to be required in an average asylum case, and the fixed fee has
been calculated accordingly. If this is so, it reduces the number
of putative casework hours to a level that is wholly unacceptable
and well below that required by good, let alone best, practice.
It has a disproportionate effect on clients in detention or hospital,
or otherwise unable to travel, because interpreters' travelling
time must also come out of the fixed fee. It offers no rationale
for making the fixed fee inclusive of translation costs, which
vary hugely depending on the amount of documentation a client
provides. We fear that the proposals will encourage unacceptable
practices including:
— Organisations favouring English speaking
clients, or clients who speak languages offered in-house, with
the result that clients speaking other languages will find it
even harder to find representation than they do now.
— Minimal use of interpreters, for
example skimping on time spent reading back statements, or using
the interpreter only for statement taking and not for advice giving
or instructions updating as the case progresses.
— Reliance on friends or family members
to interpret. Among the effects of this bad practice: it militates
against disclosure of rape or other humiliation, and against admission
of previous fabrication or other unheroic conduct. At worst it
can lead to the use of children as interpreters.
19. Exclusion of travelling time from all
cases would make it significantly more difficult for some groups
of vulnerable clients to secure representation than at present
eg the disabled and prisoners, bearing in mind that it is only
services for those held in the main immigration removal centres,
not prisons, which are to be provided outside the fixed fee regime.
20. There are proposals for unaccompanied
children's cases to be outside the fixed fee regime and contracted
to specialist providers. It is not, however, clear whether this
group will include those whose age is disputed. Such cases are
complex, requiring the supplier to ensure that the client has
the benefits of all safeguards accorded to a child, while the
Home Office treatment of the child as an adult (ieas liable to
detention, with the claim processed as that of an adult) must
be contested as well as age proved.
21. The contention that immigration cases
are cheaper than asylum cases may be true for applications within
the rules. But much of the caseload for publicly-funded immigration
work involves complex applications outside the rules for vulnerable
people who will be disproportionately affected. This will also
disproportionately affect the settled ethnic minority communities,
who are most likely to have family members requiring complex immigration
and entry clearance applications.
22. Clients with complex welfare needs will
have severe difficulties because it is proposed that the fixed
fee covers 30 minutes of welfare advice, and that other welfare
work will have to be done under a welfare or housing contract.
Not all immigration providers have these. Where work can be referred
to a welfare or housing specialist they will often need to work
closely with the immigration practitioner, each contributing their
specialist expertise.
Recommendations:
— See above re calculation of fixed
fee levels.
— Interpretation and translation be
remunerated separately for asylum cases.
— Travel and waiting time sit outside
the fixed fee. Statistics should be kept on these, which could
then be used to make the case for the AIT to reform its listing
practices so that travel time can in some circumstances be divided
between cases listed on the same day but so that they do not clash.
— Provision be made for clients detained
in places other than immigration removal centres, eg in prisons.
— Existing representatives be allowed
to retain conduct of cases when their clients are detained and
remunerated at an hourly rate for the work done.
— The exemption for unaccompanied children
cover all age-disputed cases.
— The attempt to come up with a one-size-fits-all
fixed fee for asylum and immigration, predicated on standard procedures,
be abandoned, either through a lower threshold for exceptionality,
or through different fee levels for those passing through standard
and non-standard procedures.
— Immigration practitioners to be able
to provide welfare work on immigration and asylum cases, paid
at the welfare fixed fee.
What impact any or all of the recommendations
will have on legal aid providers?
23. See above. If we consider just London
suppliers and the London Bar, travelling time to the AIT at Hatton
Cross can be more than two hours each way. Waiting time is unpredictable.
A 2-3 hour hearing can thus easily occupy 7-8 hours on the day
of the hearing alone, disregarding the advocate's preparation
time. A fee of £350 (£250 in immigration cases) is proposed.
Taking the higher, asylum, figure, on current rates four hours
travel would be remunerated at £121.20, putatively leaving
£228.80 (or £128.80) of the fixed fee to cover conference,
preparation and advocacy. It is not at all unusual for at least
five hours to be required for conference and preparation, including
preparation of the skeleton argument (required by Tribunal directions
in asylum cases and good practice in all). So a three-hour asylum
appeal would be remunerated at about £28.60 an hour for the
substantive work (less if there is waiting time at court). This
is even lower than
hourly rate currently allowed for travelling
and waiting time, and will not be balanced by large numbers of
"simple" cases requiring shorter preparation and advocacy.
Very simple and hopeless cases do not pass the merits test for
public funding in the first place.
24. Those tied into block contracts will
be vulnerable to pressure from the LSC to accept changes to their
contracts. Concern has already been expressed, for example by
Bail for Immigration Detainees in their report Working against
the clock: inadequacy and injustice in the fast track system July
2006 that block contracting for fast-track detained work has resulted
in firms protecting their costs by improperly declining to represent
at an appeal where the prospects of success are borderline, or
failing to give other assistance (for example representation at
bail hearings) to clients whom they have declined to represent
at appeal.
How the proposals will affect firms of differing
size, structure and practitioner mix?
25. We realise that the aim is to encourage
larger organisations offering a multiplicity of services. As stated,
such changes take time to achieve. Organisations cannot change
composition overnight. There are specialist firms with a reputation
for tackling the most complex cases, and barristers specialising
in particular areas. The notion seems to be that firms take on
people to do "simple" cases to offset costs. It is wholly
unclear how a barrister, or even a chambers, is supposed to offset.
Even if a chambers takes on a junior barrister to do the simplest
of appeals, how does this assist the colleague who is consistently
underpaid for doing complex cases at the fixed rate?
26. Home Office policies change. Availability
of accommodation is a key determinant of the location of asylum-seekers
accommodated at public expense. Larger firms may be better placed
to offset costs, but may be less able to adapt when, for example,
the Home Office moves people away from their area.
27. Provision for block contracting will
tie a limited number of firms into particular areas of work. In
immigration and asylum demand for high quality services exceeds
supply. This the LSC acknowledges for certain areas outside London
and disputes for London—we invite London-based MPs to consider
their own caseload and draw their own conclusions.
28. Short timescales and lack of local knowledge
mean that many clients are not in a position to make informed
choices. So the result is not the market envisaged by Carter but
rather cartels controlled by the LSC, which, on current evidence,
is more likely to use its position to urge providers to cut costs,
than to maintain quality.
Whether the measures proposed will promote the
provision of high quality advice and support the effective and
efficient operation of the justice system?
29. We believe that they will not, for all
the reasons stated above.
October 2006
88 See also the survey by the Law Society, the results
of which are posted on its website. Back
89
http://www.legalservices.gov.uk/docs/cls-main/Early-Advice-Proposition.pdf Back
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