Written evidence from the Joint Council for the Welfare of Immigrants (“JCWI”)

 

Introduction

1.      The Joint Council for the Welfare of Immigrants (“JCWI”) was established in 1967. Our mission is to promote justice, fairness and equality in immigration and asylum law and policy. We do this through:

 

-          policy work and campaigning;

-          legal advice and strategic casework;

-          media work and information dissemination;

-          providing legal training to practitioners and others; and

-          publication of reference materials.

 

2.      Our legal advice is predominantly funded by Legal Aid (“LA”). We hold a contract in immigration and asylum law and provide advice through the Legal Aid Agency’s (“LAA”) Detention Duty Advice Scheme (“DDA”) at Yarl’s Wod IRC. The quality of our legal work has been recognised as excellent by the LAA on peer review. We provide free advice to undocumented migrants through our thrice weekly Irregular Migrant Helpline and we provide outreach to service users of the British Red Cross and Hackney Migrants Centre. We also assist Unison members with their specific immigration enquires.

 

3.      Our submission will only address civil LA, in the context of immigration and asylum work.

 

Summary

 

4.      JCWI particularly wish to highlight:

 

 

 

 

 

 

Terms of Reference

 

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

B.     The role of the Legal Aid Agency;

C.     Recruitment and retention problems among legal aid professionals;

D.    The impact of the court reform programme and the increasing use of technology on legal aid services and clients;

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

F.      What the challenges are for legal aid over the next decade, what reforms are needed and what can be learnt from elsewhere.

 

JCWI’s Submission

 

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

 

LA deserts

 

5.      LASPO has negatively impacted access to justice for many. This is evidenced by the emergence of LA deserts in areas of the country where there is no provider presence. This stems from providers being forced to give back contracts; as a result of the cuts they have been unable to make this line of work profitable.

 

Lack of capacity

 

6.      In other areas, although there is LA provision, providers are unable to meet the demand for their services. JCWI routinely see this in practice, particularly with lower value work funded by Exceptional Case Funding (ECF) (addressed in more detail below). On average we turn away at least 20 potential clients per week.

 

The importance of early access

 

7.      The absence of specialist advice, particularly at the application stage, results in some cases unnecessarily progressing through the system, to appeal and judicial review, where it is clear that if early access to advice had been available, the matter could have been resolved at the application stage. An example of this from our caseload is Ted.

 

Case Study 1

 

8.      Ted has spent 38 years in the United Kingdom. He arrived as a 17-year old. He held Indefinite Leave to Remain. He struggled with addiction and committed a number of criminal offences. The Home Office refused his human rights claim, he appealed but ultimately did not succeed. He has complex health needs and will eventually need a lung transplant. After his appeal was dismissed, he made a fresh claim without the benefit of legal assistance (at this time he was street homeless). This was refused and he was detained and served with removal directions. Only at this time was he able to secure legal advice, crucial evidence was provided, and his removal deferred as a result of an injunction.

 

9.      If Ted had been able to receive advice earlier about the evidence required to support his fresh claim, ie. at the application stage, this matter would not have needed to proceed to judicial review, incurring higher legal costs and requiring the use of judicial resources.

 

ECF

 

10.  The need to apply for ECF acts as a deterrent to providers as it is seen as time consuming, at risk work and the ultimate remuneration is low (see below). We see many examples through our free telephone advice lines where those in need of assistance for an out of scope matter – largely applications under the immigration rules/Article 8 ECHR are turned away by numerous LA providers.

 

Clustering

 

 

11.  We have also seen examples where providers fail to deal with an entire claim as part is out of scope, in some cases not even advising on the availability of ECF. We have also seen this in practice in the detention context.

 

Cash-flow concerns

 

 

12.  We routinely apply for ECF for clients. Unlike a private law firm, we do have other revenue streams which enables us to take a higher percentage of this lower value work and to work at risk while a decision is made by the LAA on the grant of ECF.

 

Low renumeration

 

 

13.  Other providers face more of a cash-flow struggle. Legal Aid is ordinarily paid in arrears at the end of a matter and some cases can take years to conclude. Payments on account are available for licensed work and it is possible to stage bill hourly rate, controlled files. In the immigration context, the majority of cases will be fixed fee and so there is no option for a stage bill or interim payment for work in progress (only for disbursements).

 

14.  Fixed fee files are low value. Under Legal Help this is £413 for an asylum claim and £234 for an immigration matter (different fees apply to work conducted under CLR). These cases are complex and can involve 100s of hours of work by the provider. Nevertheless, the provider will only be paid the fixed fee, unless it becomes an escape fee (i.e. it escapes the fixed fee and is paid at hourly rates where 3 times the amount of the fixed fee has been incurred). Even when the escape fee is applied, the hourly rate is still relatively low.

 

15.  Escape fees are subject to assessment by the LAA. Before this can take place, there is a form which needs to be completed and the entire file must be sent to the LAA. This is a significant administrative burden for providers. When submitting a claim for an escape fee it is possible for the LAA to nil assess a file, meaning that the fixed fee already paid would be recouped from the provider. There is a right of appeal against a nil or reduced costs assessment. This is a time-consuming process and adds to the time lag between work undertaken and ultimate recovery by the provider. This administrative process sadly means that this type of work is simply not financially viable for many providers.

 

Not cost effective

 

16.  The review found that early intervention is paramount. This point is made above, but in an immigration context as confirmed by case study 1 this is not always possible. Instead the cost to the public purse is increased, as before a provider has been located who is able to secure ECF, many clients will have already submitted an application without the benefit of legal advice resulting in a refusal and the need for an appeal or judicial review (higher value LA work). In some circumstances, the client may even have been detained. Given the evidence of poor-quality decision making at first instance by the Home Office in this area, sadly refusals are likely if not inevitable. Even providers who advise through the Detained Duty Advice (“DDA”) surgeries are resistant to applying for ECF, some may even be removed and are denied the opportunity to ventilate their immigration claims.

 

17.  Even at the appeal stage, there are a large number of unrepresented litigants, although it seems that the Ministry of Justice no longer monitor the number so there is no data for the exact number. These data were being recorded up to December 2012 (FOI/92822 11 September 2014) but requests for data post-2012 were unsuccessful (FOI/96549 2 April 2015.[1] Further requests, made in Parliament in October and November 2016 confirmed that the Ministry of Justice no longer held information about the numbers of Tribunal users without legal representation.[2] Indeed the answers to these Parliamentary questions, suggest that not only had the Ministry of Justice stopped recording data post-2012 but it had also either destroyed or lost the records it held pre-2012, because it was now unable to provide data with respect to 2012 which it had previously provided in respect of the FOI made on 11 September 2014, and was unable to say when it had stopped recording such data. LASPO of course came into force in April 2013. It is extremely unfortunate that just before LASPO removed legal aid from many Tribunal users, the Ministry of Justice stopped collecting data about the numbers of litigants in person in the Tribunal.

 

Case Study 2

 

18.  Eric is 26 and has lived in the UK since he was just 6 years old when he was trafficked here. He has mental health concerns and suicidal ideation. As a teenager he committed a criminal offence which triggered deportation action. While serving his criminal sentence, with the assistance of his mum, he attempted to find a legal representative to help plead his case against deportation. He paid several private representatives who made some representations to the Home Office on his behalf, crucially failing to raise the strongest grounds in his case (grounds which are in fact in scope for LA purposes). One private representative even wrongly advised him that he should apply for Indefinite Leave to Remain. He was simply unaware that LA was available.

 

19.  Unsurprisingly Eric’s claim was refused. He had a right of appeal to the First-tier Tribunal (IAC) (FtTIAC”). Unable to afford further private fees Eric represented himself. Eric’s case can be described as legally and factually complex. It was simply not possible for Eric to effectively represent himself, whilst advocating for the best interests of his children who were impacted by the decision, while held in prison.

 

20.  Unusually for this area of law, Eric’s appeal was heard in his absence and without the support of any witnesses. He had only been able to submit limited documentary evidence. His appeal was dismissed on all grounds.

 

21.  Eric managed to apply for permission to appeal, this was granted, an error of law found and the decision set aside. In so doing, the Upper Tribunal (IAC) (“UTIAC”) found that they could not be satisfied that Eric had received a fair hearing. The judge at first instance had failed to carry out the appropriate balancing exercise and so his assessment was flawed. There will now be a rehearing in the UT(IAC). Eric has managed to obtain several adjournments in order to secure legal representation under LA.

 

22.  This is a clear example of the absence of early access to good quality legal advice unnecessarily complicating and prolonging a case, resulting in an unfair hearing for a vulnerable appellant and creating an increased demand for services in respect of higher value work. There can be no net saving to the public purse in such a scenario. Given the high percentage of decisions which are overturned on appeal[3], this is a missed opportunity for cases to be resolved at an earlier stage. Under the 2018 contract onward appeals are now covered by licensed work rather than controlled work. This means that OISC regulated providers are unable to assist at this stage, creating a further depletion in capacity.

 

23.  The 2017 Bach report[4] found that one of the most damaging aspects of the cuts to scope has been the withdrawal of legal aid for early legal help across a number of areas. It was also found to be one of the least cost-effective cuts. This is something we see in practice where the costs are shifted from one government department to another – eg. an undocumented family who are supported under section 17 of the Children’s Act 1989 owing to their lack of immigration status and no recourse to public funds for a longer period as they are unable to obtain legal assistance to resolve their immigration status.

 

Onward statutory appeals and blanket refusals of ECF

 

 

24.  We have found that there are some types of cases where ECF is routinely refused, this is normally at the application for permission to appeal to the Court of Appeal stage in statutory appeals. Prior to LASPO it would have been possible for providers to use delegated functions. In our view, often having acted throughout the life of a case: application, appeal before the First-tier Tribunal and Upper Tribunal, providers are best placed to assess the ongoing prospects of success. Specific legal expertise is required to have conduct of a case of this kind. When combined with the high level of court and private fees, this is bar to many applications. There is a real concern that such cases which may be difficult but are nevertheless meritorious will simply not be pursued. This again leads to the real risk of a removal of an applicant and has a knock-on impact for the development of case law in this area.

 

LA a bar for competence and good practice

 

25.  Although the level of regulation in carrying out legally aided work is high (as addressed below), through the accreditation scheme good practice and the requisite level of competence is maintained. Where there is the inability to access a LA provider, there is the possibility that a below standard level of service will be provided. This is something JCWI routinely hears through our free advice lines. We frequently receive reports that some of the most vulnerable are charged extortionate fees, are not advised that LA may be available and fall into debt after borrowing funds (or on occasion for those without recourse to public funds or any other means of support are forced to engage in sex work) to pay private fees.

 

26.  Within immigration and asylum there is a predatory aspect of some non-LA providers. This often arises in respect of last-minute challenges to removal, without legal substance, or where thousands of pounds are charged for an application which amounts to nothing more than cut and paste law without application to the particular clients case[5]. There are of course sanctions available[6]. Nevertheless, it is clear that in light of LASPO many falling through the cracks of LA provision whether it be through living in a LA desert, an over capacity issue, or an inability to find a provider who will apply for ECF and work under the low value of an immigration fixed fee, find themselves in this desperate and vulnerable situation.

 

B.     The role of the Legal Aid Agency

 

Audit, Regulation and Accreditation

 

27.  The LAA is the executive agency which provides civil and criminal LA and advice in England and Wales to help people deal with their legal problems. All LA providers have a contract manager (CM) who acts as the point of contact between the firm and the LAA to ensure that advice is provided in line with the LA contract. A CM conducts a yearly onsite visit to check compliance against contractual requirements and to ensure that evidence is retained on file. Where breaches of contract are found sanctions can be applied. In addition to the annual review by the CM, there are frequent core testing reviews, peer reviews, and in the context of immigration law – Immigration Upper Tribunal Reviews (for cases before the Upper Tribunal, paid at hourly rates in which reasonable costs can be incurred). In order to hold a LA contract, providers must have a specialist quality mark (SQM or Lexcel).

 

28.  To provide immigration advice under LA a provider must be accredited and under-go reaccreditation (administered by the Law Society) every three years.

 

29.  Providers are mindful of the prospect of sanctions to their contract for even minor, one-off breaches. Even where sanctions are not imposed, providers are asked to self-review a sample of files. The LAA can ask for files covering the last six years. This amount of regulation creates a high level of bureaucracy and takes away considerable time to conduct casework.

 

30.  There is concern that the focus is on minor contractual breaches[7] rather than the quality of legal advice by providers. This is evidenced by the DDA surgeries conducted under the 2018 contract. JCWI welcomed the increase in providers to avoid a monopoly by large firms. However, it is clear that a large number of detainees are not properly advised, are told that there is no merit to their claim without proper investigation and are not adequately advised about the availability of ECF for out of scope cases.

 

Computer systems

 

31.  When contacting the LAA about an ongoing case, such as an extension of the disbursement limit or the status of an online CCMS application this in itself is not a straightforward exercise. The online funding application process is cumbersome and time-consuming. The system is prone to outages and errors. There are frequently delays in determinations of applications which impact on the progression of cases requiring adjournments or extensions of time.[8]

 

Case Study 3

32.  Bob was refused permission to apply for judicial review on the papers. An application to amend the costs and scope of the public funding certificate was made on 4 September 2020, documents uploaded through CCMS on 15 September. Due to a forthcoming hearing date, the decision was chased on 21 and 24 September. This hearing was adjourned (for unrelated reasons to funding). In line with published timeframes a decision on the amendment should have been reached within five working days[9]. When this deadline was far exceeded a complaint was lodged through CCMS. In reply it was asserted that “more complex cases such as this are considered by the Exceptional and Complex Cases Team who aim to process these applications within 25 working days.We were further advised that the matter would only warrant expedition if urgent steps must be taken within 48 hours. Within 48 hours of a deadline in the case (to file a skeleton argument in advance of the re-listed permission hearing) expedition was requested. This request was initially refused, and we were advised to call back and request expedition the working day prior to the hearing. Only when pushed was the matter escalated to a supervisor and expedition agreed. Funding was granted on 13 October 2020, over 5 weeks after the application was submitted and when there had been considerable activity required on the case within this period (the listing of 2 hearings, an adjournment on the basis of Bob’s lack of capacity and the need to appoint a litigation friend).

 

33.  This example demonstrates the considerable amount of time spent by a provider pursuing administrative matters with the LAA, whether it be chasing decisions, uploading documents or providing justification for funding[10]. This time is diverted from actual casework and is not remunerated.

 

C.    Recruitment and retention problems among legal aid professionals

 

34.  JCWI have experienced issues in both the recruitment and retention of staff. This tends to be in respect of experienced practitioners rather than at the junior end. This suggests that there is still a commitment to LA by those at the start of their careers but given the long hours, the comparable low pay, and the added layers of bureaucracy and administrative work, many are unable or unwilling to spend entire careers in this area.

 

D.    The impact of the court reform programme and the increasing use of technology on legal aid services and clients

 

Court Reform

 

35.  The court reform programme in the First-tier Tribunal (IAC) was accelerated as a result of the pandemic. The mandatory use of the Core Case Data (“CCD”) was rolled out before the completion of the pilot. The LAA were so slow to respond to the impact of this on practitioners, in particular the requirement to provide an Appellant’s Skeleton Argument (ASA) at an earlier stage in proceedings, which meant that in certain circumstances the time spent preparing the ASA and the appeal may not be properly remunerated (eg. if the decision was withdrawn by the Home Office as a result of the ASA, in line with the aims of the reform, but meaning that the fixed fee for advocacy would not be recovered). Without consulting providers and in the face of considerable opposition by providers and the immigration bar, a new fixed fee (stage 2c) was introduced. This provided an additional £400 for the extra work required to comply with the new procedure. In practice this left a figure of £60 to be allocated to the work drafting the ASA (often work carried out by counsel and taking several hours, if not longer in a complex case, to properly prepare)[11].

 

36.  The Civil Legal Aid (Remuneration) (Amendment) (Coronavirus) Regulations 2020 which implemented this new fixed fee were met with several challenges by way of judicial review, based partly on the ground of a failure to consult with providers, campaigning by the Young Legal Aid Lawyers Group and opposition in Parliament.[12] As a result they were revoked and The Civil Legal Aid (Remuneration) (Amendment) (No.2) (Coronavirus) Regulations 2020 came into force on 7 October 2020. They make provision for the considerable work to be carried out to comply with the new procedure to be remunerated at hourly rates. This was the position advocated by ILPA and others when the rollout of the new procedure was first announced. Where claims were already submitted prior to the revocation of the first set of regulations providers can choose between remuneration at the old fixed fee or hourly rates.

 

37.  Providers have had to deal with the transition to home working, the new online court procedure which is now mandatory and these considerable changes to LA within a short period of time. The process could have been made much more seamless if the LAA had consulted with providers and listened to the very real concerns raised at a much earlier stage (indeed they were voiced prior to the pandemic when the CCD was still in the pilot stage).

 

Technology

38.  The use of technology is double edged as it makes the filing of documents and bundles easier in some respects and saves over-heads on paper and postage. However, providers are required to have a good IT infrastructure. It is clear that smaller providers and those in the NFP sector may not have large scale access to such reliable technology. More support and government funding should be provided in this respect as there will ultimately be longer term savings across the board, with fewer adjournments due to missing bundles and documents.

 

39.  There is also a potential negative impact on clients due to a lack of access to reliable technology, this is addressed in more detail below.

 

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

 

Online court procedure

 

40.  The biggest impact of the pandemic on legal aid services in immigration is the acceleration of the online procedure in the FtT(IAC) resulting in the need for a new level of funding. In light of the transitional provisions there will be complications in the billing of these files for some months to come, particularly where the fixed fee has been selected and these matters become escape fees and the fact that there now exists a new hybrid of a fixed fee and hourly rate claim.

Impact on providers

 

41.  Some providers were forced to close, others furloughed staff. It is understood that the impact was particularly felt by housing and criminal providers. In the immigration sector the demand for work increased, but as detailed above not all providers were readily able to continue providing services in the early stages of lockdown. The full financial implications of this will not yet have been felt. However, it is likely that a number of providers will not be able to continue trading as a result.

 

42.  In immigration, the pandemic has impacted the type of work conducted, with fewer hearings having taken place this year due to blanket adjournments issued at the start of the pandemic. There have also been fewer decisions generated by the Home Office resulting in fewer appeals being lodged. As such there has been a reduction in this higher value work. The same is true of bail applications as particularly during the height of lockdown fewer people were detained as their removal was not imminent. The knock-on effect therefore filters through to removal cases and judicial review applications. It is therefore foreseeable that there will be a considerable reduction in revenue for most, if not all providers, for the financial year 2020-2021.

 

Impact on clients

 

43.  The impact on our clients has been considerable. Many are vulnerable, and at high risk of contracting Covid-19. They have had to shield or self-isolate. They have had access to key services reduced (eg. counselling and other support). As such they have found it more difficult to engage with the legal process, particularly when it has not been possible to offer face to face appointments. There has been a concomitant impact on their ability to provide proof of means and to complete long and complex legal aid forms.

 

F.     What the challenges are for legal aid over the next decade, what reforms are needed and what can be learnt from elsewhere

 

Challenges

 

44.  In an immigration context the future challenges for legal aid are:

 

  1. The ever-increasing complexity of the law with sweeping changes to be made to the asylum process, EU nationals to be considered under domestic provisions and the introduction of a points-based system;

 

  1. The need to ensure that detainees (including those held in the prison estate) are given access to good quality providers;

 

  1. The re-accreditation process to be rigorous to ensure good practice is maintained, but that it also meets providers needs, is routinely updated and is not too onerous.

 

 

 

45.  Challenges which are generally applicable include:

 

  1. The realisation of the true financial impact of Covid-19 on providers, with the real likelihood that there will be fewer still in existence. This is likely to increase the number of LA deserts in the United Kingdom and increase the demand for services for providers exacerbating the already problematic capacity issue;

 

Reform

46.  JCWI would recommend that the following reforms are made:

 

  1. All immigration cases be brought back into scope. The increasingly complex immigration rules, the impact of the hostile environment and the vulnerability of many in this category needing advice show that there is a clear need for LA for out of scope cases;

 

  1. In the alternative, providers be given delegated functions to self-grant ECF cases, to avoid working at risk and delays to cases and to try and address the resistance of many providers to apply for ECF. Samples of such files could then be reviewed by the LAA to ensure compliance;

 

  1. The means test be updated to accurately reflect current values, for example the rent cap for single people is £545 per month[13], when the average monthly rental in London is £1665 per month;[14]

 

  1. Fixed fee files to be increased in value to recognise that a large proportion of work undertaken by providers falls between the fixed and escape fees so is never remunerated and to make this area of law more profitable to increase LA provision and retention;

 

  1. Hourly rates to be increased as they have not risen in line with inflation in decades;

 

  1. There be greater consultation between the LAA and providers;

 

  1. There be more flexibility in the LAA’s online systems, particularly to allow for expedition of claims with the aim of avoiding delays which are detrimental to the progression of a case;

 

  1. Funding should be made available to ensure the sustainability of the LA system, to encourage new practitioners and to ensure retention of experienced providers.

October 2020

 


[1] Conveyor-Belt Justice: Precarity, Access to Justice, and Uneven Geographies of Legal Aid in UK Asylum, Burridge and Gill, 2016 https://research.thelegaleducationfoundation.org/research-learning/peer-reviewed-publications/conveyor-belt-justice-precarity-access-to-justice-and-uneven-geographies-of-legal-aid-in-uk-asylum-appeals

[2] PQ HL2645, tabled 25 Ocober 2016; PQ HC5337, tabled 16 November 2016

[3] More than half: https://www.gov.uk/government/statistics/tribunal-statistics-quarterly-january-to-march-2019

[4] The Right to Justice – the final report of the Bach Commission 2017 at page 29

[5] One client informed us that he had paid £400 to an advisor to challenge his removal. He advised the client that he had lodged a judicial review to prevent his removal. When the client contacted the court for confirmation he was advised that there was no such claim. He was subsequently unable to contact the advisor who vanished without a trace.

[6]  For example see (Hamid) v Secretary of State for the Home Department [2012] EWHC 3070 (Admin), and subsequent authorities in which the High Court and UTIAC have affirmed their power to oversee the conduct of lawyers in immigration cases and refer practitioners for disciplinary action before the regulators.

[7] By way of example JCWI received a contract notice for an over-claim of an interpreter’s invoice, amounting to £13.16. It could be shown that the over-claim was a result of human error, the invoice had simply been misread. Nevertheless, despite representations as to why the contract notice should be rescinded, this was only done after we were required to conduct a self-review of 13 further files which confirmed that it was a one-off error.

[8] The Court of Appeal found in R (Kigen and Cheruiyot) v Secretary of State for the Home Department [2015] EWCA Civ 1286 that awaiting a decision on funding from the LAA is not a satisfactory explanation for any delay to proceedings. Such delays as well as creating a further layer of administrative work for practitioners can also seriously prejudice a clients’ case.

[9] https://www.gov.uk/guidance/civil-processing-dates

[10] Something which of itself is onerous – LAA caseworkers frequently require considerable justification to instruct experts to prepare reports in support of a claim when in immigration and asylum such medico-legal, country specific or social work reports are key to a successful claim.

[11] ILPA provided a detailed note on the problems associated with the stage 2c fixed fee, which came into force on 8 June 2020: https://ilpa.org.uk/ilpa-statement-re-new-legal-aid-immigration-and-asylum-fixed-fee/

[12] http://www.younglegalaidlawyers.org/APrayerForLegalAid

[13] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/793459/Guide_to_determining_controlled_work_.pdf Para 6.4 at page 16

[14] https://www.simplybusiness.co.uk/knowledge/articles/2019/09/average-rent-in-london-guide-for-buy-to-let-landlords/