Blog post by Jo Wilding*
Recent weeks and months have seen a lot of discussion about people arriving in the UK to claim asylum, the increasing backlog of cases awaiting decisions, and the appalling conditions in what should be a 24-hour processing centre for new arrivals in Kent. Much less is said about the crisis in access to legal advice for people caught up in the system, but for many in the sector, the situation has become untenable.
In 2020-21, I calculated that there was a deficit of at least 6,000 between the number of new asylum applications and the number of new immigration and asylum legal aid matters opened. There were 37,562 asylum applications by main applicants (excluding dependants). Around 4,000 of those people were accommodated in Scotland, which has a separate legal aid system. That compared with 27,317 new legal aid matters opened in the year.
The deficit figure of 6,000 is an underestimate, because a) one person might have more than one legal aid ‘matter’ over the course of a year and b) not every matter start relates to an asylum application or appeal. Some are, for example, settlement applications at the end of a period of refugee leave. Of course, some people will also choose (and have the financial means) to access private legal representation. Nevertheless, there was a deficit of at least 6,000, and numerous anecdotal reports of difficulties accessing legal representation all over England and Wales support that conclusion.
The position in 2021-22 is much worse. A Freedom of Information response received in October 2022 from the Ministry of Justice shows that 262 offices in England and Wales reported a collective total of 32,714 matter starts in the year from 1 September 2021 to 31 August 2022, representing some increase on the previous year. But government statistics indicate that there were 63,089 asylum applications by main applicants (relating to 75,181 people) in the UK in the year to June 2022. Assuming around 4-6,000 of those people were accommodated in Scotland (asylum support statistics are temporarily unavailable) that leaves a deficit of at least 25,000 between provision and need. In other words, in England and Wales, that would mean almost half of the main applicants (excluding dependants) who claimed asylum in the year to June 2022 did not have a legal aid representative.
Even this, however, under-represents the depth of the crisis.
One of the largest immigration legal aid firms in England and Wales, has now informed clients it will not take on any new appeals work, even for those it currently represents, who are waiting for a decision on their asylum applications. The letter states that this is because they have no more ‘capacity’ for Controlled Legal Representation work. That work is funded on a fixed fee. The fixed fee was temporarily replaced with an hourly rate when Tribunal Procedure Rules added new requirements to the existing work, but a new fixed fee has been implemented, representing no increase in the rate of pay compared with the old fee.
Similar letters have been sent by a Yorkshire-based firm of solicitors. One letter stated that the firm could not represent the client on appeal because of the client’s failure to provide an updated letter confirming that they were receiving asylum support. Such letters are not in fact provided to recipients of support. But the Freedom of Information response shows that this firm’s South and West Yorkshire offices did not in fact report any new asylum matter starts in the contract year to 31 August 2022, indicating that Controlled Legal Representation may be routinely denied to those who need to appeal an asylum refusal, using the lack of updated asylum support letters as an excuse.
In practice, this means unrepresentation on a massive scale. A legal officer in a Yorkshire migrant support organisation explained that another Yorkshire firm has closed both of its offices in Bradford and Wakefield: this was one of the new firms which first obtained a legal aid contract in September 2018 from the last tender round. The lead solicitor from the firm informed the support organisation that they had not been able to find alternative representation for all of their former clients. Another two-office firm in Yorkshire has stopped taking on new legal aid matters and is ‘winding down’ its work under the legal aid contract; a third has informed the support organisation that it is giving up its legal aid contract. These closures and withdrawals account for nine out of 26 offices across South and West Yorkshire, while another two offices in those areas did not open any new legal aid cases in the year.
A similar pattern emerges in Wales, where the largest provider opened almost 41% of all of the new legal aid matters in South East Wales, while another withdrew almost entirely from its two offices in Wales, and two others either opened no new cases or informed local authorities that they were no longer doing legal aid work. Some areas fare even worse: reports indicate that people who have been moved out of the overcrowded processing centre in Manston, Kent, were transferred to hotels in Norwich. Yet there is no legal advice in the entire county of Norfolk, nor in Suffolk or Essex. The closest legal aid provision is in Luton, over a hundred miles away, and taking almost four hours (one way) by train.
So clients are losing representation, either because of firms withdrawing from legal aid altogether or because their representatives will not do appeals work, and having to find new representation in a ‘market’ which already can accommodate only half of the demand from new applicants.
The provision which remains is increasingly concentrated in a small number of very large providers whose business model can apparently survive the long delays in Home Office decision-making: In the year ending June 2022, there were only 14,706 initial decisions made on asylum applications. Of those, 76% of people were granted asylum at first instance (without an appeal). This slow decision-making, combined with the high grant rate, reduces demand for appeals but it means lawyers are unable to close cases and bill for work done – significantly advantaging those who do the least work on each case.
The solutions – at least in part – are relatively straightforward. The top ten nationalities for new asylum applications include Syria, Afghanistan, Sudan and Eritrea. Each of these has a grant rate higher than 90% while Iran, currently the top nationality for asylum applications, has a grant rate of 85%, yet they all still go through the full asylum process. That includes a 20-week wait to register a claim, a full asylum interview and then a wait for a decision, a process which now averages well over a year. During this period, people are not allowed to work, so are forced to depend on accommodation and subsistence payments from the Home Office.
Fast-tracking grant decisions for those people from countries with a grant rate over 90% would significantly reduce the demands on Home Office decision-making resources, asylum accommodation and legal advisers, preserving these for the more complex cases. Where a fast-track grant is not appropriate, applicants could be routed back into the mainstream asylum process for a full interview, decision and right of appeal on the normal timescale (to the extent that a normal timescale currently exists).
Beyond that, with almost half of asylum applicants unable to access legal aid representation, and firms unable to take the financial losses of doing appeals work, it is clearly urgent that rates of pay are increased and bureaucratic demands reduced, to enable the remaining providers to remain in the sector and return to appeals work.
The Home Office and Legal Aid Agency should be under no illusion. This is the collapse of the sector that has been predicted since the LASPO Act (Legal Aid, Sentencing and Punishment of Offenders Act 2012) and it is leaving thousands of people without legal representation.
She has also published a book entitled The Legal Aid Market: Challenges for Publicly Funded Immigration and Asylum Legal Representation, and an important report on ‘Droughts and Deserts: A report on the legal aid market‘.
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