Written evidence from The Refugee Council

 

 

About the Refugee Council

The Refugee Council is one of the largest organisations devoted to supporting refugees and people seeking asylum in the UK. We provide a range of services for children and adults and work with them to ensure their needs and concerns are addressed by decision-makers.

We support people claiming asylum in the UK, both adults as well as unaccompanied children seeking asylum. Our dedicated service for unaccompanied children, the Children’s Advice Project, helps with a range of issues, including helping to instruct legal representatives and accompanying them to asylum process-related appointments. We work with people seeking asylum throughout their application and determination processes although most of our work is restricted to OISC Level 1 and we refer asylum advice and representation to specialist practitioners. Nevertheless, we assist our clients with information and collecting evidence, explain the asylum process to them and liaise with the Home Office on behalf of our clients when it is appropriate and we are best placed to do it. We have access to a range of information in relation to clients’ immigration cases and we help them to engage with legal practitioners. Moreover, we have a dedicated destitution service where we support people who are Appeal Rights Exhausted (ARE) and we work with legal representatives in order to facilitate referrals for legal work on Further Submissions or other legal pathways allowing people to regularize their stay in the UK.

In instances where an initial decision on our client’s claim for asylum is refused, we may support our clients to challenge such decisions through appeals. We often work with clients’ legal advisers, attend court hearings or provide witness evidence in support of their cases. In areas of public law, we refer to legal representatives, where necessary, to seek legal redress through the Judicial Review process.

Our service delivery work is complemented by our policy and engagement efforts on issues which affect our clients. To this end, we are one of the leading refugee organisations mobilising the NGO sector and engaging with the Home Office, through their stakeholder forums and bilateral discussions, on issues relating to decision-making, access to and availability of quality legal advice, barriers to legal aid provision and review of policy and practice in the asylum system.

We hope that our evidence to this review, rooted in our extensive experience in this area, will provide the Committee with information on the experiences of people seeking asylum and refugees and the need for the current legal aid provisions to be simplified and extended to other areas, including refugee family reunion.

 

How LASPO has impacted access to justice and for views on the post-implementation review and the criminal legal aid review.

The changes introduced by the Government through the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) had a significant impact on people claiming asylum and refugees. Although asylum cases remained in scope for legal aid, wider changes generated a considerable ripple effect on our clients’ ability to seek advice and progress their cases. For example, many law firms had to either close down or significantly reduce the capacity they had previously allocated for work on asylum cases.[1] Those changes to the legal landscape are particularly relevant when we discuss the asylum population, because the majority of them are on asylum support (a Home Office provided subsistence and housing provision), meaning they are dispersed on a ‘no-choice’ basis across the UK, including to places where there are no legal aid firms within proximity of their residence.[2] This situation has been described as ‘advice deserts’ and effectively restricts people’s access to justice.[3]

Whilst access to legal advice is theoretically available to people seeking asylum for the first instance decision, the limited number of specialist legal representatives in the right locations, as described above, has an impact on the case further down the line; there are many cases which, if sufficient good quality legal advice had been available in the early stages of the claim, appeals and fresh claims would not be necessary. Furthermore, in the absence of sufficient provision of good quality legal representatives with legal aid contracts people desperately search for any advice and may be exploited by practitioners who charge fees for work that has an adverse effect on their claim. Through our destitution service, we have worked with numerous clients who didn’t have access to quality legal advice, had their credibility contested because of insufficient advice and poor legal assistance. It was only when we stepped in and referred them to a good quality representative, that they were granted protection status. We are concerned that people who should be protected by the asylum system have to spend years and in some cases decades seeking justice and that despite the availability of legal aid, it is still very difficult for them to seek asylum in the UK.

Because of the complexity of the asylum process, it is accepted that people seeking asylum need legal advice throughout the asylum process.[4] The Home Office has introduced a Preliminary Information Questionnaire (PIQ) as a part of the asylum process for adult applicants. It is very important that legal advice is available to people when completing their PIQ, as a properly formulated written statement can contribute to an improvement in decision making at the first instance. It is currently highly unlikely that an adult seeking asylum would have been assisted to identify and consult a legal representative before the deadline for return of the PIQ. It is unacceptable to misalign the asylum system and the provision of legal advice in this manner and the Refugee Council believes that the scrutiny of this Committee would help to identify areas where this could be improved.

In cases of unaccompanied children seeking asylum, we attempt to find specialist representatives but this can be difficult in some areas of the country, where there is little or no provision of legally aided immigration advice. Many wait several months before their first encounter with their legal representative. In addition, unfortunately children sometimes need to seek specialist advice in relation to accessing children’s social services, including to challenge an age assessment through Judicial Review. It is important that children are able to seek specialist advice close to where they live. 

One of the legal issues of significant importance to our refugee clients relates to refugee family reunion. From April 2013, refugee family reunion applications were removed from the scope of legal aid by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Currently, civil legal aid can only be awarded if a case is deemed to be exceptional.[5] In removing legal aid for refugee family reunion work the Government said that such applications were straightforward and constituted immigration rather than asylum matter.[6] To the contrary, based on our own experience of assisting refugee families with the reunion process as well as an extensive body of research from recent years,[7] clearly show that there are many bureaucratic and practical barriers those families face and that it is extremely difficult for them to navigate the process without quality legal assistance. The Families Together coalition,[8] of which the Refugee Council is a member, calls on the UK Government to, bring this work back in scope for legal aid. Without this crucial change, refugees are enduring prolonged separation from their family and are exposed to numerous harms which this can cause; including isolation, emotional distress and lack of confidence, as well as practical barriers to integration[9] because they are expected to face a difficult task of navigating a complex legal process and immigration rules on their own. Indeed the Government’s own rules stipulate that in order to do refugee family reunion work an OISC Adviser needs to be regulated at level 2, indicating that the process is far from straightforward. Furthermore, the OISC registration categorises refugee family reunion applications under ‘Asylum and Protection’, rather than ‘Immigration’. The Refugee Council continues to assert that this is the correct classification and recommends that such a category of work needs to be classified as such for legal aid purposes.

We also like to draw the Committee’s attention to the restrictiveness of legal aid in relation to work on asylum support. Even before LASPO, legal aid was only available for advice and not for representation before the First-Tier Tribunal (Asylum Support Chamber, AST). The Home Office’s refusal or termination of support usually attracts a right of appeal to the AST, however, no statutory support is provided for appeal work (submitting the Notice of Appeal and responding to the Tribunal’s Directions), including for representation on a day of the hearing. In consequence, people seeking asylum are expected to self-represent before the judge and respond to cross-examination from the Home Office Presenting Officer (HOPO).[10] Unlike in the asylum appeal, the decision is handed down at the end of the hearing. Subsequently, a person automatically loses housing and subsistence provisions if the AST judge decides to uphold the original refusal or discontinuation. There is no right to appeal, the only remedy to challenge the AST’s decision is through a Judicial Review. The lack of statutory support for asylum support appeal work is deeply concerning, especially when contrasted with the provision of legal aid for housing and homelessness appeals.[11] Following LASPO[12]work on asylum cases can only include advice under the housing category and appeal work remains out of scope. Significantly, current legal aid rules don’t allow for assistance with section 95 subsistence only asylum support applications.[13] Because of the extremely low subsistence levels of asylum support (benchmarked at 10 per cent of the poorest households in the UK,[14] according to the ONS figures), people on asylum support are unable to afford legal advice and are left to rely on charitable support to help them with the asylum support appeal work.

Although spending on legal aid had been significantly reduced,[15] it increased costs elsewhere in the legal system and causes unnecessary harm and misery, something which can’t be quantified in monetary terms.

 

The role of the Legal Aid Agency.

The Legal Aid Agency is an administrator of civil and criminal legal aid, however, when awarding contracts to legal providers, it does not assess the quality of work based on peer reviews and other relevant information.[16] This leads to a situation where poor-quality providers stay on a market and clients are not protected from receiving deficient advice and legal support. The direction to standardise work on asylum cases, results in some legal providers ‘cutting corners’ to save costs, a practice which can have a detrimental impact on especially more complex and nuanced asylum claims, which require careful consideration of information and evidence. Some practitioners might feel discouraged from probing into their client’s cases, commissioning expert evidence or even spending more time interviewing clients who might have additional needs. We also hear, when supporting legal practitioners with work on our client’s cases, that obtaining legal aid funding is a challenge on its own and that it is not unusual for practitioners to start work on cases before they can secure funding. Some are forced to take this risk of not being paid for work in order to meet tight deadlines and support clients with their asylum claims.[17] Some legal advisers are reluctant to represent clients with complex asylum cases which require obtaining expert evidence or ones where clients already had several further submissions and negative credibility finding because they know that even if a client has a strong asylum claim, they will not be adequately paid by the legal aid agency for the time they have to spent to reverse the damage done to the case in the past.[18] 

The impact of Covid-19 on legal aid services and clients.

The Covid-19 pandemic has a profound impact on all areas of our lives, it created unprecedented challenges for individuals, organisations and the Government. In terms of access to justice and preserving rights, we know that people seeking asylum and refugees are experiencing additional barriers and find it difficult to liaise with legal advisers or instruct solicitors when their cases take a negative turn. Accessibility has always been an issue for our clients who rely on charities, acting as intermediaries, to access legal support. During the pandemic, many charities have closed offices and reduced their service. If they can provide advice and support, it is usually remotely. Our advisers reported difficulties they are facing when contacting legal professionals, since many of them, like us, had to temporarily close down or reduce the staffs’ capacity to assist with enquiries and casework. We know that even with our help, clients struggle to access legal support. Many people we support are digitally excluded, on a low income, have complex physical and mental health issues and face a language barrier, meaning that despite their resilience, they are unable to overcome those difficulties and access legal support on their own.

We know that our clients as well as their advisers find it extremely challenging to pursue cases under current circumstances and they struggle to respond to a rapidly changing situation. There is a concern when decisions have not been scrutinised as much as they usually would and people cannot access legal advice as effectively as they could in the past. Legal advisers have played an important role in supporting our clients, often bringing last-minute challenges to unlawful decisions.[19]

Our recommendations for reform and future planning.

The post-implementation review of LASPO did not go far enough to address issues raised by legal and NGO professionals to strengthen legislative measures and ensure the effective provision of legal aid. Discussions on legal aid require a whole system review, including the Home Office’s decision-making, simplification of the immigration rules and ensuring pathways for access to justice, like the accessibility of quality legal advice.

Legal Aid is one of the pinnacles of the UK legal system, it ensures that all members in our society, especially those most in need, can obtain support with legal processes. Furthermore, it serves as one of the guarantors of human rights, especially in the context of Article 6 of the ECHR. Cuts to legal aid undermine the effectiveness of the UK legal system and have a regressive impact on the rule of law and human rights.[20]

We like to make the following recommendations to the Government:

  1. For the UK Government in particular Ministry of Justice and  the Home Office:

 

a)      reverse changes introduced by LASPO, in particular, bring refugee family reunion in scope for legal aid work;

b)     improve the alignment of the asylum determination process to ensure best use is made of advice and representation at an early stage including but not limited to advice pre-application, availability of legal advice for the PIQ and availability of expert and specialist information at the earliest possible stage where necessary;

c)      introduce legal aid for the appeal work and representation against refusals or discontinuations of asylum support;

d)     plan the asylum support dispersals of adults and transfer under the NTS for unaccompanied children with consideration to the accessibility of legal advice rather than expecting the market to follow the applicants.

 

  1. For the Legal Aid Agency:

 

a)      improve the quality of advice by better auditing and peer reviews in order to make it more difficult for providers with a poor advice record to access legal aid market;

b)     change the fee structure to properly reflect the time it takes to prepare cases and reduce the escape fee threshold;

c)      analyse the demand when awarding legal aid contracts to avoid the creation of ‘legal aid deserts’.

 

October 2020

 

 

 

 


[1] Information obtained through a question in the House of Commons, HC 273435 (available: https://questions-statements.parliament.uk/written-questions/detail/2019-07-04/273435# , accessed on 15/10/2020). The numerological breakdown shows that half of law centres and not for profit legal advice services in England and Wales closed down after LASPO was introduced.

[2] The Law Society, ‘Legal aid deserts analyses’, available on: https://www.lawsociety.org.uk/campaigns/legal-aid-deserts (accessed on 15/10/2020).

[3] Jo Wilding, ‘Droughts and Deserts. A report on the immigration legal aid market.’ June 2019. Available at: https://www.jowilding.org/assets/files/Droughts%20and%20Deserts%20final%20report.pdf (accessed on 15/10/2020).

[4] The Law Society, on-line information on claiming asylum. Available at: https://www.lawsociety.org.uk/en/public/for-public-visitors/common-legal-issues/claiming-asylum (accessed on 16/10/2020).

 

[5] Section 10 of LASPO, available at: https://www.legislation.gov.uk/ukpga/2012/10/section/10 (accessed on 15/10/2020).

[6] House of Commons 31 October 2011, Jonathan Djanogly, Hansard Column 651, available at: https://publications.parliament.uk/pa/cm201011/cmhansrd/cm111031/debtext/111031-0002.htm (accessed on 15/10/2020).

[7] Refugee Council et al., ‘Together Again’, February 2017, available at: https://www.refugeecouncil.org.uk/wp-content/uploads/2019/07/ja-together-again-refugee-family-reunion-uk-280217-en.pdf , Refugee Council et al., ‘Safe but not settled‘, January 2018, available at: https://www.refugeecouncil.org.uk/wp-content/uploads/2019/03/Safe_but_not_settled.pdf , ‘British Red Cross, ‘Not so straightforward’ available at: https://www.redcross.org.uk/-/media/documents/about-us/research-publications/refugee-support/not-so-straightforward-refugee-family-reunion-report-2015.pdf (all accessed on 15/10/2020).

[8] https://familiestogether.uk/

 

[9] Refugee Council and UNHCR UK, ‘A Journey Towards Safety. A report on the experiences of Eritrean refugees’, 2018, available at: https://www.refugeecouncil.org.uk/information/resources/a-journey-towards-safety-a-report-on-the-experiences-of-eritrean-refugees/ (accessed on 15/10/2020).

[10] A.Harvey for Legal Action Group (LAG), ‘Funding for asylum cases.’ May 2015. Available at: https://www.lag.org.uk/article/202732/funding-for-asylum-cases and the Asylum Support Appeals Project (ASAP) response to ‘Transforming Legal Aid: delivering a more credible and efficient system.’, available at: https://www.asaproject.org/uploads/ASAP-response-to-Legal-Aid-consultation.pdf (both accessed 16/10/2020).

[11] R.Craddock, ‘Asylum seekers are left destitute and homeless due to a lack of legal aid’, guest blog 09/02/2017. Available at: https://www.ein.org.uk/blog/asylum-seekers-are-left-destitute-and-homeless-due-lack-legal-aid (accessed 16/10/2020).

[12] LASPO Schedule 1 Part 1 para 31: https://www.legislation.gov.uk/ukpga/2012/10/schedule/1/enacted .

[13] The provision of asylum support under section 95 IAA 1999, can take form of accommodation and subsistence or subsistence only support: https://www.legislation.gov.uk/ukpga/1999/33/part/VI/crossheading/provision-of-support .

[14] L.Mayblin et al., ‘Asylum and refugee support in the UK: civil society filling the gaps?’ April 2018. Available at: https://www.tandfonline.com/doi/full/10.1080/1369183X.2018.1466695 (accessed on 16/10/2020).

 

[15] House of Commons Library, ‘The Future of Legal Aid.’ 31 October 2018. Available at: https://commonslibrary.parliament.uk/research-briefings/cdp-2018-0230/ (accessed on 15/10/2020).

[16] LAG, ‘Manifesto for Legal Aid.’ 2017. Available at: https://lapg.co.uk/wp-content/uploads/LAPG_Manifesto_A5_FINAL.pdf (accessed on 16/10/2020).

[17] Jo Wilding, Ibid. 

[18] Guardian article, ‘Strain of legal aid cuts shows in family, housing and immigration courts.’ 26 December 2018. Available at: https://www.theguardian.com/law/2018/dec/26/strain-of-legal-aid-cuts-showing-in-family-housing-and-immigration-law (accessed 16/10/2020).

 

[19] Please refer to the Law Society’s report, ‘Law under lockdown: the impact of COVID-19 measures on access to justice and vulnerable people.’ September 2020, for more information. Available at: https://www.lawsociety.org.uk/topics/research/law-under-lockdown-the-impact-of-covid-19-measures-on-access-to-justice-and-vulnerable-people (accessed 15/10/2020).

[20] The International Bar Association (IBA) and the World Bank, ‘A Tool for Justice: ‘A Cost Benefit Analysis of Legal Aid.’ 2019. Available at: http://documents1.worldbank.org/curated/en/592901569218028553/pdf/A-Tool-for-Justice-The-Cost-Benefit-Analysis-of-Legal-Aid.pdf , OECD, Equal Access to Justice for Inclusive Growth: Putting People at the Centre, 2019. Available at: https://www.oecd-ilibrary.org/sites/597f5b7f-en/index.html?itemId=/content/publication/597f5b7f-en (both accessed on 15/10/2020).