New report describes catastrophic impact of a legal advice system on the brink
A comprehensive new report released on Tuesday by the Anti Trafficking and Labour Exploitation Unit (ATLEU) lays out the impact that a crumbling legal aid system has on survivors of trafficking and modern slavery.
The 55-page report, 'It has destroyed me': A legal advice system on the brink, can be accessed here (via Google drive).
Urmila Bhoola, former United Nations Special Rapporteur on contemporary forms of slavery, calls it an important report that highlights the catastrophic impact that the current legal aid funding crisis has on survivors.
ATLEU explains in the report: "Access to legal advice is crucial for survivors of trafficking and modern slavery but the legal aid funding system is failing them. Survivors are not able to access timely and quality, legally aided advice and representation when they need it, with devastating consequences. It is causing destitution, homelessness, anxiety, mental health problems, and missed case deadlines. It is leaving people unable to apply for asylum, in detention and at risk of removal, and is driving some survivors back into exploitation or trafficking. Significant capacity within the anti-trafficking support sector is spent on searching for legal representation, detracting from their ability to support the core needs of survivors."
The report's findings are based on 86 responses to a survey of frontline support and advocacy organisations conducted by ATLEU in July and August of this year. Respondents included those providing services across all regions of the UK, with a significant number providing services based in London and the South East.
Following the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), survivors of trafficking and modern slavery are significantly less able to access legal advice. While legal aid remains available, ATLEU finds the availability is far from adequate and the situation is worsening.
The report states: "Survivors of trafficking and modern slavery are currently unable to get legally aided advice and representation when they need it, despite it being so crucial for rights, recovery, and long-term positive outcomes. There is a huge discrepancy between the demand for legal advice on trafficking and modern slavery cases, and available supply. Survivors of trafficking and modern slavery experience what has been termed 'legal aid deserts and droughts'. Legal aid deserts; areas in which there are no legal aid providers, and legal aid droughts; areas in which there appears to be a supply of legal aid providers with no capacity to take on new cases."
90% of respondents to ATLEU's survey said that in the last 12 months they had struggled to find a legal aid immigration lawyer for a potential or confirmed victim of modern slavery. 76% reported significant delays of up to three months or longer in finding an immigration legal aid lawyer for a potential or confirmed victim of trafficking or modern slavery. 43% reported serious delays of up to six months or longer.
One support worker told ATLEU: "There has been a stark decline in the ability to find legal aid funded solicitors for my clients. It was hard in 2021 but in 2022 it does seem impossible. I am relying on free clinics and other support organisations which hand out legal advice. Solicitors that have already been instructed seem swamped with cases and the system seems to be creaking under the additional pressure."
Another support worker commented: "Our issue is trying to find quality legal representation that has a specialism and understanding of trafficking, alongside immigration. We come across quite a few solicitors where their lack of understanding has meant that some key issues have not been addressed/badly handled. The most common response to our request for solicitors is that they do not have capacity."
The report notes that concerns about the quality of legal advice are frequently raised with ATLEU by support providers. Concerns include lawyers showing reluctance to challenge negative trafficking decisions, not running important trafficking arguments as part of the asylum claim, not helping the survivor with advice about applications for discretionary leave to remain or supporting evidence and representations to secure it, not spending the time to explain a victim's case properly, not incurring costs or taking the time necessary to present the right supporting evidence, and in some instances closing cases prematurely.
Jennifer Blair of No5 Chambers and Migrants Organise told ATLEU: "The quality of legal aid representation can be extremely poor, often with nothing really being submitted before the [conclusive grounds] decision. The issue is that there is not enough legal aid representation and even among those accredited to provide it there are a great many without sufficient competence and skill to do so, which can actually be worse than the client having no representation at all."
Blair added that there has been a recent spate of people leaving the legal aid sector, creating a squeeze where more and more clients are being referred to an increasingly small group of competent legal representatives.
The lack of representatives is leading some support workers to try to help with a task that should be undertaken by an accredited adviser or lawyer, with 68% of respondents to ATLEU's survey saying that they had done this. As ATLEU notes, this can have negative outcomes for survivors if mistakes are made, despite the best of intentions.
ATLEU also highlights in its report that there is considerable confusion about what is and is not in scope under legal aid, with many legal providers refusing to open cases on an incorrect basis. "There is a lack of clear accessible guidance on what the Legal Aid Agency (LAA) considers to be in or out of scope and a lack of clarity in the application of the rules," ATLEU said.
As the report notes, the lack of high-quality legal aid has devastating consequences for survivors. 55% of respondents to ATLEU's survey said that the lack of access to timely and quality specialist legal advice and representation had left survivors they supported destitute or unable to access appropriate accommodation or support. 97% of respondents said lack of advice caused survivors stress, anxiety or contributed to poor mental health. Survivors experienced feelings of hopelessness, desperation, and even suicidal thoughts. One support worker said they had seen cases of clients' mental health being irreparably damaged by a lack of access to legal advice.
29% of respondents to ATLEU's survey said the inability to access legal advice had left survivors in a situation of exploitation.
As well as identifying the problems with the legal aid system, the report makes a number of recommendations with the aim of ensuring survivors of trafficking and modern slavery are able to access free, specialist, quality legal advice and representation when they need it, without delay.
The recommendations include: making legal aid automatically available to victims and potential victims without means testing; paying immigration legal advisors for trafficking and modern slavery cases on an hourly basis and raising rates; and introducing a legal aid contract for trafficking and modern slavery compensation claims to encourage more providers to engage in this work.
Victoria Marks, ATLEU's director, said: "The government needs to recognise that the current situation is untenable. The existing legal aid regime is unnecessarily complex and bureaucratic and places a heavy burden on both legal aid providers and the state. The evidence shows that this often leads to poor or no legal support for survivors. As a result, survivors are left to languish in a system that actively impedes their recovery instead of supporting it."