Public Law Project says measures are a 'sticking plaster' that miss scale of legal aid problems
As reported in the Law Gazette yesterday, the Government last week responded to a June 2023 consultation on legal aid fees for immigration work and confirmed that hourly fees for work arising from the Illegal Migration Act (IMA) are to rise by 15 percent.
Image credit: UK GovernmentLord Bellamy KC, Parliamentary Under-Secretary of State for Justice, stated in the consultation response: "The Government has determined that a 15 percent increase in fees in relation to work under the Illegal Migration Act is a meaningful step forward, representing an increase in remuneration and fair recognition of the expectations the Illegal Migration Act puts on practitioners."
The Ministry of Justice summed up the measures that will be introduced as follows:
- for IMA Work, hourly rates will be 15% higher than existing hourly rates – this will apply to all activities captured by hourly rates, including for Controlled and Licensed Work [1];
- the Government will conduct a first post-implementation review of IMA fees within two years of implementation;
- the Government will pursue the development of proposals to help address the financial burden of accrediting caseworkers at senior caseworker level to conduct immigration and asylum legal aid work. The Government will communicate further with immigration legal aid providers on specific proposals later this year;
- the Government will pay travel time for providers when they travel to Immigration Removal Centres for Detained Duty Advice Scheme (DDAS) surgeries; and;
- the Government will allow advice to be provided remotely for DDAS surgeries, at the discretion of providers and subject to their professional judgement and their obligations towards vulnerable persons.
Further consider will be given to a variety of other areas, such as interpreters fees and disbursements, and changes will be made where required.
According to the Government's consultation response, the vast majority (95%) of the respondents to the consultation were negative about the 15% increase, with most saying it was either insufficient or inappropriate.
The Government said, however, that it remained of the view that a 15% fee increase was an adequate uplift to incentivise legal aid providers to take on IMA work, and it would help build sufficient capacity among providers to enable individuals facing removal to have access to legal aid.
The Public Law Project said last week that the Government's new measures were a 'sticking plaster' that miss the scale and nature of the problems with access to justice in immigration. PLP has recently reported that there is a crisis in the immigration and asylum legal aid sector, with no lawyers left in many parts of the country.
Noting that legal aid rates have not increased since 1996, PLP's Emma Vincent Miller commented: "On the one hand, no one in the legal aid sector is against the idea of a rise in immigration legal aid fees. An increase is desperately needed at a time where legal aid providers are at breaking point and vulnerable people are routinely unable to access advice. And yet, increasing rates for Illegal Migration Act work alone represents the worst of sticking-plaster policymaking. This creates perverse incentives for providers to undertake Illegal Migration Act work to the detriment of other work, such as assisting clients with initial asylum claims in the backlog."
PLP said the consultation response showed the Ministry of Justice had failed to listen to legal aid firms who say the rates, including the proposed IMA rates, are unsustainable.
Lubna Shuja, the president of the Law Society, was quoted by the Law Gazette as saying that the measures outlined in the response were a step in the right direction but there was no substitute for funding the work consistently at sustainable rates.
"There is a huge backlog of asylum cases and simply not enough lawyers to take them on. Many asylum seekers are dispersed to areas where there is no legal aid provider. Those facing removal have just eight days to secure legal advice and bring a suspensive claim. If they are detained in offshore barges or in an immigration legal aid desert, the chances of them being able to access a lawyer are low," Shuja added.
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[1] Controlled Work means the provision of any of the following forms of civil legal services: (a)legal help; (b)help with family mediation; (c)help at court; (d)family help (lower); or (e)legal representation for proceedings in the Immigration and Asylum Chamber of the First-tier Tribunal; or the Immigration and Asylum Chamber of the Upper Tribunal in relation to an appeal or review from the Immigration and Asylum Chamber of the First-tier Tribunal. Licensed Work means the provision of any of the following forms of civil legal services: (a)family help (higher); or (b)legal representation that is not Controlled Work or Special Case Work.