Bar Council identifies immigration as area of concern as it warns sustainability of civil legal aid system is at risk

Review of Civil Legal Aid - Call for Evidence

The Bar Council's Response

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Immigration and Asylum

43. Scope of Legal Aid

The exclusion of pre-permission JR [judicial review] costs from Civil Legal Advice makes an already unpredictable and insecure area of work much worse. The amount of time required to investigate and prepare a JR case to issue and, possibly, to a renewal hearing, is very considerable. The risk of counsel not receiving any payment for such work if permission is refused is a significant disincentive to undertaking such work on potentially meritorious but riskier cases, especially given the low rates and payment issues set out below.

Applications for leave to enter or remain based on an individual's right to private and family life under Article 8 of the ECHR were amongst those areas taken out of scope. Often these individuals have meritorious cases but have had multiple appeals due to very poor/no representation, which unnecessarily inflates costs for HMCTS (and the Home Office, and often local authorities or others who are supporting these cases). Article 8 needs to be brought back in to scope.

Exceptional Case Funding (ECF) is routinely granted for Article 8 cases and it is a waste of providers' and LAA [Legal Aid Agency] time and money to go through the Article 8 application process.

44. Inadequate remuneration

The patterns of LAA spending on fees for barristers for immigration and asylum cases has changed significantly since 2008-09. Of the approximately 1.9 million paid in that financial year, around 86% was in relation to Counsel fees. Post-LASPO, the position has changed, with around 53% being spent on Normal Counsel fees between 2014 and 2023. We still see a reduction in the total spend of 31 per cent between 2008-2009 and 2021-2022. The spend in 2022-2023 was higher, but it is unclear whether this is a temporary blip in the trend.

Low hourly rates for controlled work (FTT (First-tier Tribunal) appeals and any pre-action advisory work) have not been increased for very many years and are now completely unrealistic.

The application of fixed fees and the way that many solicitors approach payment of these to counsel is a real problem. For instance, the hearing fee for a standard asylum appeal is £302. This is only supposed to cover the work done on the actual day of the hearing but because the standard CLR (Controlled Legal Representation) fixed fee for preparation of an asylum appeal is so low solicitors cannot afford to share this with counsel so if the case does not escape the fixed fee, which may be outside counsel's control, counsel will be paid a paltry fee for what are difficult and complex cases.

The data reflects this experience. Gross fee income for barristers undertaking legally- aided immigration and asylum work is lower than those undertaking other areas of civil legal aid: [23]

45. Impact on the Bar

Immigration and asylum work also experiences the same issues over the seniority of the practitioners undertaking the work as housing: the data suggests that newly qualified barristers spend some time doing this work then leave in search of better-paid work once they have some experience.

It would be a mistake for the MOJ to think that barristers can cross-subsidise; doing some better paid work in private areas of practice and combining it with legal aid. That poses serious issues with supply (there are not many immigration or asylum appeals) and is unrealistic for what are extremely specialist areas which barristers cannot simply dip in and out of.

Furthermore, the type of work that is done on legal aid is exceptionally stressful, often urgent, consistently requires substantial out of hours work, and is likely to involve high levels of vicarious trauma. Asking junior barristers who likely have a wide range of other areas of law that they could move to, to undertake this kind of work at low/no pay is inimical to ensuring that there are adequate levels of representation. The experience of our Bar experts is that even enthusiastic juniors have been put off by the combination of how pressurised this work is combined with how badly paid it is.

We therefore have significant concerns over the availability of counsel, and particularly experienced counsel, to work on these cases in the future.

46. Unhelpful, complex and unnecessary administration

Delay in payment is a serious issue.

Timescales for payment for controlled work are very poor because of the fact that providers cannot bill for the majority of the case until the end of the matter, and even in cases that do escape the fixed fee, the process of preparing and submitting escape claims for assessment means that there is often even more delay in paying counsel who have no control over the timing of submission of the escape claim, or how quickly after receipt solicitors will pay counsel's fees.

Other than applying to the LAA for POAs on certificated cases, barristers have no control over the timing of payment as everything has to be done through providers. So even if counsel provides all the information needed for billing promptly, if the solicitor does not then prepare and submit the bill counsel will not be paid.

Our experience is that the requirement for legal aid bills to go to detailed assessment even where an inter partes costs order has been made, means that a high proportion of cases take well over a year to pay.

There should be a mechanism to circumvent this reliance on solicitors where they are slow in paying. When the fees are already inadequate, the absence of such a mechanism erodes goodwill still further.

This could readily be addressed by requiring payments on account to be made as a matter of course, potentially with a standard sum being paid out within 14 days of a costs order, then a percentage of the bill of costs being paid within 14 days of its service.

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[23] Bar Council's Data Analysis Report, Chart 4.