Cuts and capacity problems in legal aid sector has serious repercussions for trafficked persons’ access to justice
A very interesting new report by Dr Samantha Currie, Associate Professor of Law at Monash University in Australia, examines the role of lawyers in the UK who advise and represent people who have experienced trafficking.
You can download the 26-page report here.
The report draws on 20 interviews with solicitors and barristers in London, Liverpool, Manchester, and Sheffield who have specialist expertise in the area of trafficking and modern slavery.
It focuses, in particular, on the role played by immigration legal aid lawyers who advise and represent clients so that they can be formally identified as a 'victim of modern slavery' under the National Referral Mechanism (NRM) and can secure immigration status in the UK.
Dr Currie identifies and explores the following three key findings in the report, which represent three vectors of Government policy that are shaping legal practice in the anti-trafficking space:
- The perilous state of the immigration legal aid market.
- The regressive trajectory of immigration and asylum law and policy, which directly impacts on people who have experienced trafficking or modern slavery.
- An increase in anti-lawyer rhetoric.
The combination of the three creates a challenging and highly pressurised environment for practitioners, as well as raising pressing concerns about the potential for victims of trafficking to access justice.
Practitioners face an environment characterised by legal aid cuts, insufficient time for complex trafficking casework, low pay and problems of capacity.
Currie notes that the legal practitioners interviewed for the report were highly committed to their clients and were regularly working additional hours on an unpaid basis, placing considerable burdens on them personally.
One lawyer explained: "The stress that you feel about basically being the only person that this individual contacts. Very often you're the only person that they are talking to and the only support they've got, there's no other network, and they're in crisis. Then you can't get the funding and so you're left with this impossible choice: do I just help this person as far as I can, as is humanly possible, because what's going to befall them is so much worse and they're at such risk, or do I have to make the decision to keep on hammering the Legal Aid Agency trying to get funding in place. And they'll tell you they're coming back to you tomorrow. That's no good. Where does that person sleep tonight? So that's what kills you. It's the same with the compensation side of work. I mean, they're so obstructive. Every case is complicated so dramatically by the level of bureaucracy, the ongoing no, no, no, that culture of refusal that exists, that gets in your way of doing your job."
The report also highlights how an increase in anti-lawyer rhetoric from high-profile politicians is part of the package of regressive law and policy reform in the asylum and immigration sphere.
As the report notes, the anti-lawyer rhetoric characterises practitioners as 'activists' who, along with their clients, seek to 'abuse' the system. This has been part of how the Government has explained and justified the need for the Nationality and Borders Act (NBA) 2022 and the Illegal Migration Act (IMA) 2023.
A majority of the practitioners interviewed for the report said their legal work was wrongly being mischaracterised as 'activist'.
One lawyer said: "It [activism] is never a badge I've adopted because I think if I'm a lawyer I'm an officer of the court and I'm upholding the rights that are enshrined in English law, and sometimes I'm trying to push those, because I think that's the right approach, but a lot of the time I'm actually unpicking an almighty mess that the Home Office has got itself into and in the end that's always agreed. That's not activist. If anything, that's kind of bureaucratic. It's attention to detail and it's actually reading the papers."
In concluding, the report importantly summarises the impact of its findings as follows:
"Access to good quality legal advice and representation is hugely important for trafficked persons because of the complex range of legal issues they face, encompassing a range of different decision-making systems. Without such access, for example, they are unlikely to be able to secure immigration status, through temporary trafficking-specific leave or a claim for refugee status, or challenge negative NRM decisions.
"In the current and short-term, clients who have experienced trafficking are impacted in the first instance by the limited capacity of immigration legal aid lawyers in general, which is particularly acute in certain regions. This can lead to them, if they are able, having to travel significant distances to access legally aided advice. They are also impacted in a second instance in the sense that legal aid practitioners who do take on their cases may not have the necessary expertise and/or capacity to pursue the trafficking-specific elements of their case, even if they can represent them in the case of an immigration or asylum claim, e.g. a claim for refugee status.
"This leads to legal issues not being pursued, and therefore left unresolved and at risk of escalation. It also means that unlawful actions and decisions of the Government, particularly the Home Office, go unchallenged.
"In the medium to long-term, there remain serious repercussions for trafficked persons' access to justice and effective remedies stemming from the likelihood that the capacity problems in the legal aid sector will remain and potentially worsen. The joint effect of this and the reduction of protection for those who have experienced trafficking as a result of changes brought in by the NBA 2022 and IMA 2023 is to place the group in an increasingly vulnerable position completely removed from a victim-centred and human rights-based approach."
Dame Sara Thornton, who was the UK's Independent Anti-Slavery Commissioner from May 2019 to April 2022, said the report's findings are of great concern and profoundly undermine the UK's ability to put survivors at the heart of its response to trafficking. Thornton added that while the whole system needs more investment, the operating context could be improved considerably if the rhetoric against immigration lawyers was just dialled down.