New report details how dwindling legal aid capacity is vastly outweighed by increased demand
An important new report published yesterday by the Public Law Project (PLP) and Haringey Migrant Support Centre (HMSC) is the latest to detail the crisis in the availability of immigration and asylum legal aid across England and Wales.
The 59-page report, Access to immigration legal aid in 2023: An ocean of unmet need, is available here.
PLP and HMSC said: "This report summarises the experiences of organisations attempting to help people access immigration legal aid advice and the experiences of over-stretched legal aid providers who are unable to meet the demand in their areas, as well as those who have given up on legal aid as a sustainable area of legal practice."
Accompanying the report is a 25-page explainer with background information about navigating the immigration legal aid framework, which you can download here.
It states: "This explainer will outline what immigration legal aid services are available for, and the role government plays in providing them. It explains the contractual relationship that the Legal Aid Agency has with providers, and the complicated way delivery of services is paid for. It sets out the administrative burdens that providers must navigate to help their clients, as well as the financial risks that they bear as a result."
In the main report, PLP and HMSC say starkly that the immigration legal advice sector has effectively collapsed, leaving people adrift in an ocean of unmet need.
The report provides a snapshot of the legal aid situation in England and Wales between March and June 2023. It finds that dwindling capacity is vastly outweighed by increased demand resulting from Home Office decisions. Legal aid fees are not enough to sustainably fund a legal aid practice, meaning that migrants and asylum seekers in dire situations are unable to get the support they need.
PLP and HMSC identified the following four key findings:
- Providers rely on mixed funding. Legal aid fees do not meet the cost of providing legal aid services, so providers must find other ways to fund them. Usually, firms do so by drawing on private or charitable income and relying upon the goodwill of staff.
- Support organisations' referrals are going unanswered: PLP's national Legal Aid Capacity Data Collection Survey found that only 1 in 16 referral attempts to legal aid providers were successful. Even in London and the South East, where there are the most providers, an increasing and significant proportion of individuals are unable to access advice and assistance.
- Providers' capacity is saturated. Immigration legal aid providers report far more enquiries than they can take on, and may triage according to their view of those most in need and are under pressure to work quickly. A mapping exercise by Refugee Action and smaller, follow up mapping exercises by Manuel Bravo Project and others indicate vast gaps in capacity.
- Individuals struggle to access exceptional case funding (ECF). Where providers do take on ECF work, they do so at an even greater loss than they would in-scope work. As a result, many providers have stopped accepting ECF work altogether. This is particularly concerning given that ECF work, by definition, concerns clients' fundamental rights.
Separate sections of the report consider the situation in London and the South East, the North West, the South West, and the North East, Yorkshire and the Humber.
While all areas lack sufficient capacity, the situation is particularly acute in the South West and the North East. PLP notes that the South West region, for example, has immigration and asylum legal aid capacity for under 300 people per year, but 4,827 asylum seekers had been dispersed to accommodation in the region as of June 2023. Six legal aid providers in the South West have recently either stopped trading or stopped providing legal aid.
The immigration legal aid sector is largely kept going by a small number of dedicated actors who face stagnant pay and work long, additional, unremunerated hours. Providers across England and Wales struggle to recruit and develop new staff, and struggle to retain their existing staff. Highlighting one example, the report notes that the most experienced senior caseworker at one provider in the South West resigned and left the sector altogether, citing burnout and despondency at the state of the publicly funded immigration advice sector.
In concluding, the report warns there is a risk that high quality legal aid funded immigration services will cease to exist outside of the limited capacity of the charity sector or firms who open a small number of matter starts at a loss or as a form of pro-bono activity.
PLP's lead lawyer Daniel Rourke said: "Across England and Wales, legal aid is failing. In many parts of the country, there are no immigration and asylum legal aid lawyers left. The largest private firms providing legal aid in this area of law do so at a loss. They are subsidising the taxpayer and cannot increase their capacity."
As a result of the dire problems identified by its research, PLP says it has now taken the first step in bringing legal proceedings against the Lord Chancellor. In a pre-action letter for judicial review, PLP argues that the Lord Chancellor is in breach of his constitutional duty to make legal aid available for immigration and asylum issues, leaving many people denied access to justice.
Daniel Rourke added: "PLP has not taken this step lightly. We recognise that the current Lord Chancellor is a former legal aid lawyer and has expressed a commitment to access to justice. We will continue to engage with the ongoing Review of Civil Legal Aid, but it will not conclude until 2024 at the earliest and no urgent steps have been taken to stop provision collapsing further in the meantime. Neither the Legal Aid Agency nor Ministry of Justice collect data on the scale of unmet need for legal aid. Our research shows the unmet need is vast. We are compelled to bring our research to the Lord Chancellor's attention and demand that he takes urgent action. We will reluctantly prepare legal proceedings if he continues to breach his statutory and constitutional duties."
In response to the report, a spokesperson for the Government told the Guardian that it had invested £44m in immigration legal aid in the last year.
"As a result of our action, the number of providers has increased in recent months, from 153 in March to 173 in September. We are also consulting on a 15% pay increase for work done under the new Illegal Migration Act. The Legal Aid Agency regularly monitors capacity in the legal aid market, taking immediate action if gaps appear, and the Ministry of Justice is reviewing the system to ensure it is sustainable well into the future," the Government spokesperson added.