A wide-ranging review of all areas of legal aid is currently taking place. As part of this review, the Department for Constitutional Affairs (DCA) has announced proposals to change how publicly-funded immigration and asylum legal advice is provided. The Legal Services Commission (LSC) is running a consultation on these proposals, which ends on 12 October.
Legal practitioners are very concerned that the proposals will reduce the availability of quality legal advice and representation to asylum seekers and migrants. This is mainly because, in the majority of cases, the fixed fee for legal work on asylum or immigration cases is too low to allow for a good quality job to be done.
The Immigration Law Practitioners Association (ILPA) is still in the process of consulting its members but so far responses show that those in private practice and not for profit providers such as Law Centres are seriously worried about the ability of their organisation to survive under the scheme as proposed.
Summary of key points in the proposals:
- From April 2007, the majority of asylum claims and all immigration cases will be paid for using a new ‘graduated fee scheme’. This means that advice and representation up to the first appeal will be paid a fixed amount.
- For asylum applicants, this means that the preparation of their claim, advice on the next steps after the Home Office decision, deciding if any appeal has merit and appealing if funding for an appeal is refused, must all be done for £550 – the equivalent of eight hours of casework, or less if an interpreter or any translations are needed as there is no extra money for this.
- For asylum applicants who want to appeal a refusal by the Home Office, a fee of £300 (equivalent to four hours work) will be paid to cover all work on the appeal and any interpreting or translating required. If the appeal goes on to a substantive hearing, a further £450 will be paid (equivalent to six hours work), which again must include all interpreters and translation costs.
- ILPA has stated that hourly rates have had no cost of living increase since April 2001. It is already difficult to make this work pay its way while preserving standards. ILPA points out that information provided by firms and organisations currently working to the standard desired by the LSC, indicate averages for asylum cases up to initial Home Office decision of between 11 and 20 hours per case. The proposal is to pay £550, said to equate to 8 hours but to include interpreting and translating costs. So legal representatives are to be paid for perhaps 5 or 6 hours case work for cases that actually take two or three times that long.
- The case will not be counted as exceptional unless it exceeds the norm by a multiplier of four. So any case that takes less than 32 hours will be paid for as if it had taken only eight (minus interpreting). Where is the shortfall for quality organisations to come from?
- The lack of separate payment for interpreters and translation of documents unfairly discriminates against people who do not speak English or whose case requires a lot of documents to be translated. It makes it more likely that people will be asked to interpret inappropriately, e.g. children interpreting for their parents. Exclusion of travelling time from all cases is unworkable and unfair and risks making it significantly more difficult for some groups of vulnerable clients to secure representation than at present, for example the disabled and prisoners.
- A number of services will be paid for separately by setting up exclusive contracts or panels – information, advice and representation at the Asylum Screening Unit, advice and representation for detainees, and advice and representation for unaccompanied asylum-seeking children. The proposals do not set out how age-disputed children will be dealt with, but it seems likely they will be referred to adult providers who may not have the expertise to challenge the age-assessment. People in these groups will not be able to get legal aid for advice or representation from anyone who does not have an exclusive contract, other than in a few exceptional circumstances. The referral will be made on a no-choice basis.
- Bail for Immigration Detainees (BID) is worried that the exclusive contracts will make it harder for detainees to access good quality representation. This is based on BID’s experience of the current fast track which operates an exclusive contract but leaves many without legal representation at their appeals.
- The proposals are being rushed through and are not properly thought out. Organisations that fear that they will not be able to survive under the new regime will need to make decisions well in advance of next April, if only so that they can give adequate notice of redundancies. There is less than six months between the close of the consultation period and the proposed start of the new regime. This is not enough time either for the LSC and DCA properly to digest responses and modify the proposals, or for suppliers to plan and act responsibly.
What you can do:
- Respond to the consultation: If you want to respond to the consultation it would be useful to a) set out the current situation and difficulties in your area and b) to highlight how asylum seekers and migrants are affected if they don’t have good quality legal advice and representation (by writing to Emma McGovern, Contract Design Team, Legal Services Commission, Head Office, 85 Grays Inn Road, London WC1X 8TX).
- Write to your Member of Parliament about the changes: Ask them to raise the issue with the Minister at the Department for Constitutional Affairs and express concern about the potential impact on asylum seekers and migrants. Give them examples of problems in your area.
- You could also write to the Minister at the Department for Constitutional Affairs to raise concerns about the changes. (Vera Baird QC MP, Department for Constitutional Affairs, Selborne House, 54 Victoria Street, London, SW1E 6QW).