Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by Still Human Still Here (LA 65)

1. Still Human Still Here is a coalition of more than 40 organisations that are concerned with the destitution of refused asylum seekers in the UK. [1] Since 2008, we have reviewed asylum policy and practice to identify the causes of destitution and possible solutions which would both reduce the human and financial costs of the current asylum system.

1.1 In February 2010, Still Human published a detailed report which highlighted the lack of adequate competent legal advice and representation as one of the reasons why an individual with a well founded fear of persecution can go through the asylum system without being properly identified as such:

"The asylum determination system still gets a quarter of its initial decisions wrong. The success rate at appeal for asylum seekers from certain countries is even higher. For example, in 2008, more than 40 per cent of Eritreans and Somalis appealing against the refusal of asylum won their cases. While many asylum seekers will eventually be granted some form of status, after a lengthy and costly appeals process, others, particularly those without good legal representation, will get to the end of the process without having their protection needs recognised and end up destitute." [2]

1.2 Even in 2009, research indicated that, in some areas of the UK, "as many as four out of five cases are wrongly refused legal aid [by misapplication of the merits test for representation on an appeal] and one third of those have a valid claim for some form of protection" [3] .

1.3 This problem has been exacerbated over the last 12 months by the closure of Refugee and Migrant Justice [4] and the Immigration Advisory Service. [5] This is reflected in the fact that 28% of appeals were allowed in the first quarter of 2011 and success rates for particular nationalities were even higher (e.g. 56% of Somalis, 46% of Zimbabweans and 45% of Eritreans had their appeals allowed in the first quarter of 2011).

1.4 While Still Human Still Here welcomes the Government’s decision to retain asylum within the scope for Legal Aid, we wish to draw the Committee’s attention to several concerns that nonetheless arise in the area of asylum by reason of the measures in the Legal Aid, Sentencing and Punishment of Offenders Bill and other developments arising out of the Legal Aid Green Paper: Proposals for the Reform of Legal Aid in England and Wales.

1.5 We believe these measures threaten to exacerbate existing weaknesses in the decision making process and the problem of destitution by further reducing the availability of competent and effective legal advice and representation for asylum-seekers.

2. Impact upon legal representation

2.1 In July 2011, Carolyn Downs, chief executive of the Legal Services Commission, highlighted her concerns to the Committee in respect of the sustainability of Legal Aid provision in the not for profit sector and the immigration and asylum area. [6]

"The area where we have had some concerns is about the large reductions in scope and the ability of certain parts of the legal services markets to adapt to that, particularly the not for profit sector, which the Government absolutely accept in their impact assessments, and in the immigration and asylum field."

2.2 That assessment is in sharp contrast to the position taken by the Secretary of State for Justice last year at the time of Refugee and Migrant Justice’s closure:

"...The fixed fee system introduced three years ago by the last Government is already being successfully used by the vast majority of not-for-profit organisations in this area of law. As other organisations have successfully made the transition, it is only reasonable to expect Refugee and Migrant Justice to do the same... Every other organisation, including the other not-for-profit organisations, has coped with this... [Refugee and Migrant Justice] did not make the adjustments for 2007 that everyone else succeeded in making... [Refugee and Migrant Justice] had a 7% market share. It was, of course, part of the old advisory service, which was split up some time ago. The other half of the old advisory service [the Immigration Advisory Service] is to get a much bigger market share – over 20%." [7]

2.3 The Government’s confidence in June 2010 has been contradicted by subsequent events. The Immigration Advisory Service has not coped, despite its receipt of over 20% of the immigration and asylum Legal Aid market in November 2010. Moreover, it is not only these two substantial not for profit organisations that have not been able to cope. For example, earlier this year, Fisher Meredith, a very respected firm of solicitors, largely closed its immigration department and in doing so withdrew completely from immigration and asylum Legal Aid. These difficulties have already led to periods during which areas of England and Wales have been left without any (immigration and) asylum Legal Aid provision [8] and these problems are again being revisited with the closure of the Immigration Advisory Service.

2.4 However, the problem facing asylum-seekers is not simply whether a Legal Aid adviser is available, it is whether the quality of work provided by any such adviser is sufficient to properly identify and present the asylum claim. For those who are torture survivors, rape survivors, victims of trafficking, suffering from mental or physical or learning difficulties, children, non-English speakers, in detention, and/or unfamiliar with and afraid of authorities and legal systems, this problem is especially acute since these individuals will often face substantial difficulties in disclosing the detail of their history and asylum claim.

2.5 The sustainability of the asylum Legal Aid market is, therefore, at risk in two distinct ways: (1) that there are insufficient advisers available; and (2) that, although an adviser is available, the quality of work delivered and the time spent to establish trust and confidence is simply inadequate.

2.6 In addition to the matters raised above, other factors compounding these risks include:

· Asylum Legal Aid advisers currently carry substantial Legal Aid debt owed to them by the Legal Services Commission. This is because the Commission does not pay for work in progress. Rather payment is made at particular stages when work can be closed (e.g. when a claim or appeal is finally concluded). [9] This places significant financial strain on the adviser, particularly those properly pursuing complex cases which may not be closed for long periods of time.

· Asylum Legal Aid advisers were required in November 2010 to undertake a range of both asylum and immigration Legal Aid work. [10] Now they are told that an area of work (immigration) for which they were required to provide, including by maintaining or taking on staff, is to be removed. [11] However, when the fixed fee regime was introduced in asylum and immigration in October 2007, the Legal Services Commission had said that financial viability would result because Legal Aid advisers should undertake a mix of complex and more straightforward cases. [12] By removing immigration from Legal Aid, the Bill both undermines the model of work required to be adopted in November 2010 and undermines the possibility of advisers being able to balance less time-consuming cases against the losses made on the fixed fees paid for complex and time-consuming cases.

· There has been no increase to immigration and asylum Legal Aid rates since 2001.

2.7 In these circumstances, the Legal Aid provisions in this Bill as they affect those advisers currently providing Legal Aid in asylum cases, coupled with the proposed Community Legal Service (Funding) (Amendment No 2) Order 2011 [13] which is intended to impose a 10% cut on all civil Legal Aid fees, constitutes a grave threat to an already inadequate and fragile area of Legal Aid provision. This can only exacerbate the existing problem whereby so many asylum-seekers pass through the asylum system, including any appeal, without their claims ever being properly identified and presented and are then left destitute and in limbo because they cannot safely return to their countries of origin, as was the case for thousands of Zimbabweans in the UK between 2002 and 2011.

2.8 In addition, members of the Public Bill Committee have raised concerns that provisions in the Bill relating to scope may drive some people to present their claims as falling within alternative categories so as to access Legal Aid. Kate Green MP noted:

"The classic area is the boundary between immigration and asylum, and we can expect some cases currently covered by legal aid as immigration cases to be transferred to asylum." [14]

2.9 This risks the prospect of some non-asylum migrants being left without legal advice and assistance and consequently making unnecessary asylum applications which will have a negative impact on the cost and speed of the asylum system.

3. Conclusion

3.1 In May 2011, Damian Green MP, Minister for Immigration, made clear his ambition for "an asylum system which is more compassionate and produces the right decision, at the first time of asking". [15] We welcome this ambition. However, it depends on the quality of work put in by both the UK Border Agency caseowner and the asylum-seeker’s legal representative. For the reasons we have set out here, Still Human Still Here is gravely concerned that this Bill and related Legal Aid developments will seriously undermine the prospect that this ambition is realised, as some people in need of international protection will continue to pass through the determination procedure without being properly recognised and ultimately find themselves destitute and in limbo at the end of the process.

September 2011