Proposed changes to public fundingin immigration and asylum cases

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Proposed changes to public funding in immigration and asylum cases

In June 2003, the Government's Department of Constitutional Affairs
(formerly the Lord Chancellor's Department) issued a consultation paper
setting out plans to introduce maximum time limits for publicly funded
immigration and asylum cases. The maximum time limits proposed are five
hours to prepare and lodge a claim for political asylum, four hours to
prepare an appeal against refusal of political asylum, and three hours
to prepare any other immigration application. These time limits are meant
to be absolute with no exceptions for complex and difficult cases.
Disbursements available for interpreters and expert reports, including
medical reports, are also to be severely limited, and attendance by
legal representatives at Home Office interviews is to be curtailed.

Regrettably, our firm has decided that, if these changes were
implemented, we could not continue to carry out publicly funded immigration and
asylum work because, in our experience, it would be impossible to provide an
appropriate quality of service to clients. Essentially, it seems to us,
the Government is trying to create a system where asylum seekers and other
individuals with immigration problems will not be afforded even the bare

minimum of proper representation and we feel that we must refuse to
participate in what we believe to be a system intended to provide "fig
leaf justice" - i.e., a system where the participation of lawyers would give
the appearance that justice is being administered when, in fact, those
lawyers are prevented from providing an adequate level of representation to
which any client should be entitled. Such concerns are all that much greater
for clients - such as asylum seekers - where poor representation and a
negative result will mean that the individual concerned is sent back to a country

where he or she faces persecution, including the possibility of
detention, torture or even death. In several respects, there appears to be an
inherent dishonesty - or at best an amazing naïveté - in the way that the
Department of Constitutional Affairs, in its consultation paper, seeks to justify
the proposed changes:-

It suggests, first of all, that it is considering implementing these
changes because of its concern with the quality of representation
provided to asylum seekers and others with immigration problems under the legal
aid system. This is an absurd assertion given that the Legal Services
Commission itself - the government body responsible for implementing the

legal aid system - has previously indicated in its internal guidelines -
and in a best practice guide prepared and distributed under its
financial auspices - that the amount of time which should be devoted by a
responsible lawyer to an individual client was likely to be very substantially in
excess of the time limits which are now being proposed.

While, unfortunately, there continue to be some legal advisers who
indeed provide an inadequate service, those advisers will not be driven out of
the system by the proposed time limits. They will simply continue to carry
out their work to an inadequate standard in whatever times are prescribed,
claim their money and continue to flourish. Quality representatives, on
the other hand, will in conscience feel unable to continue to function
within the proposed guidelines.

Contrary to what the Government may suggest, effective representation,
while time consuming, greatly increases the success rate in individual
cases. To cite our own firm's track record in this regard, our ultimate
success rate with respect to immigration cases going to appeal tends to
fluctuate between 80% and 90%. This is more than four times the success
rate achieved generally with respect to immigration cases in the appeals
system. The withdrawal of high quality representation from individual
cases will necessarily mean that worthy cases which should be successful will
not be, because of inadequate preparation.

The Government suggests that another main motivation of the proposed
changes arises from budgetary issues, citing the substantially increased
expenditure of the legal aid budget on immigration and asylum cases from
the financial year 2000-2001 to present. The figures used to
substantiate this position are, first of all, faulty. No explanation is provided with
respect to the change in reporting procedures over the intervening years
which, necessarily, means that much of the work carried out in the
earlier reporting periods could not be claimed by suppliers until subsequent
years, thereby giving an artificial appearance of a growth in expenditure. In
any event, during the relevant period, the Home Office itself has greatly
expedited the consideration of asylum cases as well as tackling a
backlog of many years of unresolved cases so that, necessarily, more work has
had to be done. This needs to be contrasted, however, with the Government's
suggestion that the number of asylum seekers in the coming year is
likely to be reduced by 50% which, presumably, should result in a substantial
downturn in the amount of work to be done on such cases.

The government also fails to note in its proposals that one of the main
reasons for increased expenditure on asylum cases is the fact that the
standard of Home Office decision making in such cases has deteriorated
substantially during the relevant period, with many worthy cases
initially being refused by the Home Office and having to go into the expensive appeal
process. It is also the case that the Home Office, when it loses an initial
appeal before an Adjudicator, is more and more seeking to appeal such
decisions to the Immigration Appeal Tribunal, also adding to the cost of
such cases. In particular, during the past year, it seems to have become
almost standard practice that, when the Home Office has failed to send a
representative to a hearing before an Adjudicator - and that Adjudicator
gives a favourable decision for the asylum seeker - the Home Office
seeks to appeal such a decision to the Immigration Appeal Tribunal, thereby
substantially increasing the amount of work which needs to be done in
individual cases, a situation which could often have been avoided if the
Home Office fulfilled its responsibility of sending a representative to
the initial hearing before an adjudicator.

The Government also suggests that, once a legal representative has used
up its time allotment with respect to an individual case, the client
concerned can pay privately for further legal representation. With respect to many
cases, of course, this is an absurd proposal given that the Government
has withdrawn the right to work altogether from asylum seekers and, in those
cases where any financial support is given, it is at a less than basic
subsistence level - i.e., 70% of income support level. Even if some
clients are indeed able to pay, the Government proposal would institutionalise a
system where there would be a two-tier system of justice, with an
entirely different standard of representation available to those who can pay as
opposed to those who cannot. This goes against all of the basic premises
of access to justice upon which the United Kingdom's admirable legal aid
system was instituted.

Whatever the motivation of the Government may be in putting forward
these proposals, it is clear that their effect will be injustice to asylum
seekers and others with immigration problems in the United Kingdom. We find
this to be reprehensible. Firms such as ours - with a decent reputation in
the field of immigration law - can, if they wish, continue to exist doing
exclusively privately funded work and, indeed, we would be far more
profitable if we took that approach. We have previously chosen, however,
to work within the legal aid system because we believe in its basic premise
that fundamental standards of justice should be available to every
client, irrespective of his or her ability to pay for representation.

We hope that we will continue to be able to do Government funded work but,
clearly, we will not be able to do so if the changes suggested are in fact
implemented, as is scheduled to occur on 1 January 2004. We have taken the
decision in principle that, if the changes are implemented in their
present form, we would cease to do Government funded work on 1 January 2004.
Until that time, we will do the best job possible in representing our legally
aided clients. At least for the time being, however, we have taken the
decision that we will take on no further such clients. To do so would,
in our view, be irresponsible given that those same clients would have to find
alternative representatives within the next few months if the proposals
are implemented.

The proposed changes have not yet been implemented. The consultation
paper issued by the Department of Constitutional Affairs in June 2003 invites
comments from members of the public as well as those directly affected,
by 27 August 2003. If you feel strongly about these issues, it would be
helpful if you yourself contacted the Department of Constitutional
Affairs with your views as to the Government's proposals. Any communications
should
be sent to:-

Mr Muhammud Islam
Department of Constitutional Affairs (Lord Chancellor's Department)
Public Legal Services Division 3
3rd Floor, Selborne House
54-60 Victoria Street
London
SW1E 6QW
Tel 020 7210 8762 fax 020 7210 8780 e-mail  muhammud.islam@dca.gsi.gov.uk

It would be helpful if you copied any such communications to the Legal
Services Commission itself. The person to contact there is:-

Ms Laura Diblasi
Legal Services Commission
85 Gray's Inn Road
London
WC1X 8TX
Tel 020 7759 0000 fax 020 7759 0547 e-mail
 laura.diblasi@legalservices.gov.uk

Finally, you might consider contacting your Member of Parliament as
well.
To find out who this is, you can visit the House of Commons Constituency

Locata at:  http://www.locata.co.uk/commons/

This page enables you to find your MP's contact details using either
your postcode, your MP's name or the name of your constituency. For telephone
enquiries, call the House of Commons Information Office on: 020 7219
4272.

Wesley Gryk Solicitors
August 2003