Parliamentary commission publishes report following comprehensive inquiry into the condition of legal aid

The Westminster Commission on Legal Aid (the Commission) has today published its report on the sustainability and recovery of the legal aid sector.

The Commission is a cross-party initiative that was formed last year by the All-Party Parliamentary Group on Legal Aid to carry out an independent review of the viability of the legal aid profession as it emerges from the Covid-19 pandemic.

The report is 177 pages long and there's plenty to digest. You can download it here. The report's section on immigration and asylum can be read below.

Karen Buck MP and James Daly MP note that the report is the result of possibly the most comprehensive and in-depth look into the condition of legal aid yet undertaken.

The Commission commented: "As an Inquiry, we wanted to use this opportunity to look at the changes made to legal aid over the past decade and assess: whether the legal aid system is fit for purpose now, as our communities seek to rebuild themselves after the pandemic, and in the years to come; whether the system is 'sufficient' to meet the needs of the individuals whom it purports to serve; and whether the system as a whole is 'sustainable'."

The report documents the significant changes made to legal aid in the eight years since the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO).

On immigration and asylum, the Commission notes that there has been a negative portrayal of immigration lawyers by both the press and government ministers, with lawyers "vilified" for 'last-minute' applications to prevent removals and deportations.

Problems with the financial viability of legal aid work means that organisations are choosing to take on less immigration legal aid work and replace it with private work. This is making it increasingly difficult for many people to access a lawyer to assist in their immigration and asylum matter.

Very briefly, the Commission concludes overall: "What we found over the course of the past year is that the legal aid system as it stands is not sufficient. Nor is it sustainable. We explore each of these themes further throughout the course of the report. If we are to truly level up as a nation, we must ensure that no one is left behind. We believe that legal aid has a significant part to play."

Recommendations include that an independent fee review panel should be set up so as to bring the legal aid system in line with other publicly funded services.

The report's section on immigration and asylum is excerpted below:

________________________

The Westminster Commission on Legal Aid

INQUIRY INTO THE
SUSTAINABILITY AND
RECOVERY OF THE
LEGAL AID SECTOR

October 2021

The All-Party Parliamentary
Group on Legal Aid

[…]

Immigration and asylum

Pre-pandemic

40. LASPO did not remove asylum cases from the scope of legal aid, but removed most non-asylum cases. There are, however, a number of exceptions, such as challenges to immigration detention (legal aid for bail, temporary admission or release) and certain domestic violence and trafficking cases, which remain within scope. More than other areas of social welfare law, there has been a negative portrayal of immigration lawyers by both the press and the government. Lawyers have been vilified in the tabloid press and by some senior ministers for 'last-minute' applications for injunctions and judicial reviews to prevent removal/deportation and there appears to be much work to be done to rehabilitate the public perception of immigration lawyers.

41. As with other areas of social welfare law, witnesses explained that legal aid at an early stage in immigration cases benefits all those working within the immigration and asylum sector – applicants, the Home Office and the court or tribunal. A well-prepared case at an early stage can play a vital role in assisting the Home Office to make the right decision first time and to do so in a timely manner. We heard, in both evidence sessions and the research that we undertook, that it is in all parties' interests for the MoJ to put resource into the sector in order to build capacity and to make sure that there are still firms prepared to undertake work at legal aid rates. The Lord Chancellor has a range of powers under section 2 of LASPO with which to do so. [277] Early access to legal advice was a point raised by the Public Accounts Committee as recently as July 2020, and accepted by the Home Office as a relevant factor in preventing late asylum claims in its recent report on immigration enforcement. [278] The Home Office accepted that better quality legal advice at an earlier stage may influence its ability to successfully remove people from the UK. [279]

42. How does the picture look at an organisational level? There are currently 257 offices with contracts in immigration and asylum across England and Wales. [280] Some of these are multiple offices of a single firm, while others are single-office practices. Jawaid Luqmani of Luqmani Thomson and Partners told us that the reduction in fees (and current fixed fee) and the removal of most non-asylum cases from the scope of legal aid has made it extremely difficult to firms to remain financially viable. [281] As with other practice areas, the consequence of this is that organisations are choosing to take on less legal aid work, and to replace it with private work. Witnesses also reported the increased shifting of the work into the public law realm rather than immigration.

43. This, in turn, makes it increasingly difficult for many people to access a lawyer to assist in their immigration and asylum matter, and the South West, Wales and the East of England in particular have suffered as a result of the legal aid cuts. We were told by Dr Jo Wilding that demand outstrips provision even for cases within the scope of immigration legal aid in every region of England and Wales. In her report, A Huge Gulf: Demand and Supply for Immigration Legal Advice in London, [282] she estimates that there is capacity for just over 10,000 immigration and asylum legal aid 'matters', and a maximum of 4,500 pieces of specialist immigration casework outside of the scope of legal aid per year in London.

44. On the demand side, she estimates that at least 238,000 people who are undocumented in London would be eligible to make an application to regularise their immigration status; [283] 23,000 individuals need to extend their leave to remain; and an unknown number of EU citizens who did not apply for settled status before the deadline on 30 June 2021 will need specialist advice. [284]

45. The report also identifies infrastructure challenges for the immigration advice sector, including a lack of trained advisers and a recruitment crisis.

46. This recruitment crisis was referred to during the evidence sessions. Some organisations have opted for more of a pyramid structure, with caseworkers and paralegals doing the majority of the legal aid work. This renders the work more financially viable, but given its complexity, more than one witness raised concerns about it being managed by juniors. Mr Luqmani also flagged issues around career progression as the fees payable for immigration and asylum cases under legal aid were insufficient to justify the promotion of junior staff into more senior roles. [285]

47. We were told that many people arriving in the UK are unable to access a lawyer at an early stage as there is so little capacity in the sector, and indeed there is research being undertaken in this area by the Immigration Law Practitioners' Association and other academics – we refer to Dr Wilding's report, Droughts and Deserts: A report on the immigration legal aid market,' published in June 2019 and her book, The Legal Aid Market, published in September 2021. The result of this lack of capacity is that the first time many people are able to access legal advice is when they are detained pending removal. This situation does not assist the Home Office, the courts, the lawyers or those who are facing removal that is potentially unlawful.

48. Witnesses also cited concerns with the ECF process and its effects on the number of applications made. One observation made during the course of the civil evidence session was in relation to advice within this particular practice area in terms of value for money and accountability. Checks and balances are already in place with regard to immigration work because in order for any lawyer to receive legal aid funding in the immigration sector, they must meet a certain objective standard – the Law Society immigration and accreditation scheme. [286] If practitioners do not meet this standard, they are unable to charge any of their work to the public purse, thereby providing a safeguard against the spurious claims that were feared when LASPO was passed.

49. As with other practice areas, practitioners recommended that, given the high volume of grants and widely acknowledged complexity of immigration law, this area should be brought back into scope. It is perhaps worth noting that this area remains in scope in Scotland and Northern Ireland, so there is not the same difficulty in accessing support in those countries (although there are still geographical gaps or legal aid deserts and other concerns about fee rates).

Pandemic

50. As with other practice areas, the impact of COVID-19 was felt acutely by those in immigration law. Witnesses explained that the ability to bill cases immediately came to an end because, as with many areas of civil legal aid, a matter can only be billed at its conclusion. With the lockdowns came a wide-scale slowdown, if not a cessation, of decision-making within the Home Office and a large number of cases were suspended or delayed. As a result, witnesses reported that it simply was not possible for matters to be completed and the pinch was felt across the practice area.

51. As a consequence of this slowdown, the LAA introduced some new stages to billing processes to enable work to be billed prior to the conclusion of the case. The new ways of working brought about by the pandemic also presented unique challenges with this particular client group, who may not have had access to technology and for whom English is often a second language

52. During the course of the pandemic, new standard fees were put into place for immigration and asylum appeals, and we asked about the impact of these. Prior to this change in fees, we were told that the fee structure in this area was based on fixed fees, with an 'escape fee' mechanism for billing the full value of the case if the total time spent was three times the number of hours covered by the fixed fee. We were told that while some cases did 'escape' and result in practitioners being paid for the work that they had undertaken, the vast majority did not, despite many additional, unpaid hours of work being completed.

53. Changes were introduced over the past year in response to a decision of President of the First-tier Tribunal (Immigration and Asylum Chamber) to require all appeals to be submitted through the online appeal process, unless not reasonably practicable. [287] This meant that lawyers were required to advance their cases at a far earlier stage, which necessitated skeleton arguments and other papers being filed at an earlier point in the process. The more effective that their work was, the more likely it was that the case would settle and they would end up with a lower fee than if it had gone to trial. Now the whole fee is paid at an appeal stage and using an hourly rate rather than the standard fee.

[…]

[287] Clements, M. (2020) Immigration and Asylum Chamber - Presidential Practice statement No 2 of 2020: Arrangements during the COVID-19 Pandemic. Available at: https://www.judiciary.uk/wp-content/ uploads/2020/06/PRESIDENTIAL-PRACTICE-STATEMENT-No-2-2020-FINAL-11-June-2020-1.pdf (accessed 13 September 2020).