Best Practice for Asylum Legal Services

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Hi, and welcome to this latest immigration law conversation. I'm joined once again today by Amie Higgins. Amie, thank you so much for joining me for, I think, our round two.

Today, we're going to talk about a thematic review that the SRA has done in relation to legal services for asylum seekers. Don't shut off if you're OISC regulated—there is some really important advice for anybody doing protection claims that come out of this thematic review. Amie's done a brilliant free resource as well, an advice sheet, and I'm going to share the link to that in the description of this video. If you want to take this further, and if you own a firm or are a consultant, I'd encourage you to go through this in detail. We'll talk to Amie about how she can help you with that later.

But Amie, before we start, tell us a bit about you and what you do.

For anyone that doesn't know me, I'm an immigration and public law solicitor. When I'm not practicing, I work as a compliance consultant with DG Legal. I specialize in all things legal aid-related, particularly immigration legal aid. I help with peer reviews, tenders, contract compliance issues, and assist firms individually with any training needs they have or drafting precedent templates, file notes, documents, letters—that kind of thing. I'm just generally on hand to make sure that from a compliance perspective with either OISC, SRA, or BSB firms, you are doing what you should be doing and are compliant with all their requirements.

Now, that's really helpful, Amie. Before we go today, we'll talk about how people can reach out to you if they need help with those things because in today's regulatory environment, that is so important. But let's start with the sort of big question: What did the SRA do in this recent review that came out at the end of July into asylum legal services?

This was the SRA's second thematic review into immigration and asylum. The first one was back in 2022, and it had some fairly damning findings. They were quite concerned with various issues they found when they reviewed files in a number of firms they had visited. There were issues over how cash payments were being recorded, issues over supervision on the files, supervision of staff, and the quality of the legal advice being given. As a consequence of that, they issued a very detailed set of findings in 2022 and said, "Look, there's no excuse for solicitors and anybody who works within a solicitor's firm for not being aware of this advice that we're giving—the effective supervision guidance and all those also this guidance in relation to specifically immigration practitioners." They warned everybody, "Look, we're going to come back, we're going to do this again, so read the guidance, read the warnings, and we will be back. We'll be doing a further review in due course." They didn't really say when that would happen, but lo and behold, it took place at the end of 2023 and the beginning of 2024, and they've now published these findings in July.

They visited 25 firms, which I believe were selected at random, and they reviewed a total of 64 files. As part of those interviews they had with those firms, they spoke to the head of department—the head of immigration and the overall supervisor of the immigration and asylum work. They also spoke to the case workers who were conducting work on the files and any other supervisors as well, just to get a feel of how things actually worked in practice and how the files were run.

I think they were quick to proceed with the second thematic review because of the issues we probably all heard about in 2023, where the SRA issued a very stern warning notice after the newspaper sting with undercover reporters visiting a number of immigration firms. They had posed as asylum seekers and suggested to the solicitors, and the solicitors had suggested to them, the possibility of fabricating evidence and fabricating information about a false asylum claim. The SRA took that really seriously, intervened with a number of firms, took disciplinary action, closed them down, and issued this very serious warning notice in, I think it was November 2023.

So they were quick to press on with the second thematic review, I think, really just to make sure that things maybe show signs of improvement since the last one. I definitely think that the findings they've released this time around are much less negative, much less critical than they were in the first one, so that's definitely a good thing. But there are still things that I think people definitely need to know about so that they can have a review of their practices and procedures just to make sure that they are compliant with what the SRA is expecting of them.

No, that's really helpful. You've kind of answered probably my next question as well. You've done the what and the why, and it's good to see that there was a sort of more positive tone to this review, definitely finding that firms largely had robust practices in place. But yeah, can you give us the key findings? What were the key findings of the SRA that practitioners need to be aware of?

So, they basically split their review into four key themes, if you like. They looked at engaging with clients and their evidence, effective supervision, ongoing competence, and reporting concerns to the SRA. Within those four key themes, they looked at a variety of different topics.

Firstly, they were looking very closely at how individual solicitors and practitioners engage with clients and their evidence. They looked at how evidence is taken from clients and at what stage of the claim it's taken, as well as the discussions that are had between the solicitor and the client about how that evidence was obtained. I think the key point in relation to engaging with evidence was that they wanted to ensure that people are cross-referencing evidence, that they are looking at the evidence provided by clients and making sure that it's not inconsistent with evidence that's been provided earlier, and that the evidence that's been produced in support of the claim is robust.

They did make comments about some concerns that they had in relation to the verification or authentication of evidence. They felt that there was probably quite a low percentage of people that they spoke to who actually bothered to get an authentication report done from an expert. I think they said it was just over a third of fee earners who would seek to get an authentication report for any documents that were produced in support of a client's claim, and that 64% relied on their own judgment in relation to the experience they had in dealing with similar claims to assess whether something was genuine or not. Obviously, that's a little bit of a concern to some extent because there's a risk that they might make assumptions about the authenticity of that evidence, and the SRA was very keen to point out that everything needs to be properly scrutinized, regardless of whether a fee earner has experience in seeing that type of document or evidence before.

They really talked a lot about the conversations that are had with the client and the advisor and at what stage evidence is discussed. They were very keen to point out that solicitors have a role in terms of advising clients on the type of evidence that would be useful for their claims rather than kind of waiting for a client to just produce what they have. Having a documented discussion with a client about what would be useful is definitely recommended because we can't assume that clients know what might be useful to support their type of claim.

One of the things that they said that I found particularly interesting, and I think is one of the key points for firms and practitioners to take away, is they talked about this widespread use of WhatsApp to communicate with clients. I think we can all accept that this definitely happens in this day and age. It's an easy way of communicating with clients rather than, you know, sending letters or even emails because some people don't have access to them or not immediate access.

It was perfectly acceptable that WhatsApp is used as a method of communication, but they were concerned for two reasons. Firstly, if there were just messages in relation to generic administrative communication, like arranging an appointment or asking for a document to be provided, then that's one thing. But if there is any evidence of legal advice being provided via WhatsApp, then there's an absolute need for that evidence to be on the file. Partly because it is a record of the complete matter and partly because the supervisor needs to have access to that information in order to have proper and effective supervision of that file.

We haven't really ever seen the SRA talk about WhatsApp as a method of communication before. This is really the first time that they've said anything about it. Although there wasn't any evidence of legal advice being provided via WhatsApp in the sample of files that they looked at, they did say, "We recognize that this is something that is happening across the board, and firms really need to think about how that's working in practice and whether or not firms have got some sort of policy—a written usage policy for fee earners about what they can and can't do on WhatsApp—and how those communications are then stored on the file so that the supervisor has access to it and that there is a full and complete record of all communications with the client."

So, definitely a key point to take away is thinking about whether or not you're using WhatsApp, to what extent you're using it, and whether or not there is some sort of policy that you can put in place to ensure consistency across the firm in relation to that.

Other things they mentioned in relation to engaging with clients focused on the need to make sure that clients are able to communicate effectively in a language that they fully understand. They emphasized the importance of using independent and qualified interpreters wherever possible. They recognized that some clients might want to use a friend to interpret, or there may be a caseworker within the firm who speaks the same language. Obviously, this keeps costs down, and there's no reason not to do that as long as the client fully consents and is happy for a friend, family member, or caseworker to interpret on their behalf. However, they suggested that for key points, such as the completion of a statement or an appeal statement, it might be better to use an independent interpreter to ensure there is no question of compromising your independence and that the client has had a qualified, experienced, independent interpreter read everything back to them.

The next area they looked at was supervision and effective supervision. In the previous thematic review, supervision was a key theme, and they made many comments on how this needed to be improved. The findings suggest that it has improved, but they were still concerned that only 62% of the files they reviewed had any evidence whatsoever of supervision on them. They reiterated what they said in the previous review: it's good practice to evidence that supervision has taken place on all files.

Now, that's easier said than done sometimes. I appreciate, as a practitioner myself, when you're busy and rushing, you might have a conversation with a colleague about a particular case or ask for advice from a supervisor. You have the conversation, receive the advice, but then you've got to remember to put that note on the file to evidence that it actually took place. There's often evidence that a formal file review has taken place because you'd have a copy of that form on the file itself, but those ad hoc conversations or the emails you send to a supervisor or colleague saying, "Can I just check this?" or "This particular client has advised me of this, what should I do?"—it's really important to try and remember, even if it's just a handwritten scribbled note on the file, to put something on there. It really shows that supervision is happening on the files, and I do believe with the vast majority of practitioners, supervision is there, it is happening, but it's very difficult to establish that this is the case if there is nothing on the files.

Another key part of supervision they talked about was who is the supervisor, how do you decide how much to supervise, and what methods of supervision are most appropriate. They basically said that having some form of formalized policies or procedures about that can really help set expectations around how an asylum matter ought to be supervised.

This includes things like how matters are allocated, depending on a fee earner's experience, skills, and competence when allocating files. You should also consider whether there are expectations about how quickly files should be progressed. Should one person carry out day-to-day tasks and be the main point of contact for the client, with the supervisor taking overall responsibility and checking all the work being done? Do you have a procedure for signing off documents drafted by fee earners who are under the supervision of a more experienced solicitor? How are vulnerable clients dealt with? Is there a requirement that caseworkers or solicitors have significant experience or training in working with vulnerable clients before they are given the responsibility of running their cases?

Finally, they stressed the importance of making sure that everyone within the organization has read and is familiar with the SRA's warning notices and guidance. This is a good opportunity to refer to those within any policies you have to ensure that everyone has indeed read them.

The next topic was in relation to continuing competence, previously known as CPD. They basically said, "Look, we recognize that, on the whole, people are doing what they should be doing in terms of continuing competence, and most people can produce a record to show this is a list of all the training that I've done in the last year," which was great. There was also evidence showing that supervision was taking place through file reviews, and advice was being given to individual solicitors on how they could improve or noting any training needs through file review issues, followed by booking relevant training courses, which was great.

They also acknowledged that generally, on-the-job learning tends to be the most effective way to address any development needs that individuals may have because, in this area, things change unbelievably quickly. However, they were a bit concerned that, although solicitors could produce a list of training that had taken place, the requirements within continuing competence involve individual solicitors reflecting on their practice, looking at the work they do, the work they are likely to be doing in the coming year, and thinking about what they need to do or what would really help them do their job better.

They focused heavily on the fact that a lot of clients in this area are highly vulnerable or traumatized. Working with vulnerable clients is a niche skill in and of itself, but there weren't many examples of solicitors receiving training specifically in dealing with vulnerable clients. Not many firms had recognized the need for their staff to have training in dealing with that kind of vulnerable client and the issues that might arise. So, something to consider in terms of the next year with your continuing competences is really thinking about the type of clients you work with and how you might undertake different types of training to enable you to do a better job for them.

The final key theme, which also appeared in the previous thematic review, was about reporting concerns to the SRA. Again, they wanted to stress that it is an absolutely fundamental obligation that you must promptly report any matters that could amount to a serious breach of the SRA's standards and regulations. They were concerned that not many people had read the warning notices and guidance, although some had and were aware of the key messages, either because they'd read it in the press or heard someone like me discussing it in one of our webinars. However, they hadn't necessarily gone away and read the full extent of the guidance, which raised concerns about whether people really knew how serious this obligation was to report any issues they identify.

Obviously, it's always going to be a matter of judgment whether something should be reported to the SRA. It might be that you receive a file transfer from another provider, and upon reviewing the file, you notice they failed to do something important for the client or acted in a way that compromised the client's case or damaged the prospects of success for one reason or another. In cases like this, the SRA really expects you to report it. They were very clear in the findings from this review that where a firm or a solicitor does not report a serious breach when they should have, the SRA may well take enforcement action against that firm or solicitor.

This is really serious. The duty to report serious misconduct is clear and is not subject to any form of client consent or the duty of confidentiality. They emphasized that reporting misconduct is absolutely in the public interest and is crucial for the SRA to access that information so they can fulfill their regulatory role.

So, although I've provided a summary—I'm calling it a summary, but it's actually a huge document with a lot of information in there—it is broken down into those four key themes with subheadings. I recommend everyone has a really good read of that.

That's really helpful, Amie. It just shows how much there is to think about as individual practitioners, especially those who are running and managing firms providing asylum services. What I thought was helpful about your note is that, at the end, you provided a sort of checklist of actions for firms to take. I'd encourage you to look at Amie's notes. There was so much that came out; I was jotting down notes as I went through the review.

The whole thing about reflective CPD—I'm still used to that language—thinking about why you need training in something, reflecting on that, and making sure you're noting those kinds of things. I often get emails and messages asking, "Adam, when did I come on that course with you?" because people want the dates of their training. But actually, thinking about specific cases showing a need for training, like handling cases involving unaccompanied minors or those with mental health difficulties, is important.

Then there's the WhatsApp issue. It jumped out at me during the review. They cited someone who uses the desktop version of WhatsApp so it saves to their firm's cloud, and those WhatsApp conversations can be on the file. You may not do that, but as Amie said, having a policy on how your firm uses WhatsApp is crucial. If you think of how prominent WhatsApp conversations have been in inquiries like the COVID inquiry, it's clear that professional services are increasingly using WhatsApp. This will likely be regulated more as we go forward. Practitioners need to be aware of that.

Finally, coming back to what you said about getting documents authenticated—there is tension in the report because it notes that many people choose the private route rather than legal aid, and getting a document expert can cost close to £2,000. This raises interesting points about cost implications for clients.

Are there any other practical steps you want to leave people with or things they need to review or think about that come out of the review? I appreciate you've given us a lot already.

No, that's all right. I would say to everybody, at least read my summary. Even if it's quite dense, I've tried to break it down so you can see within each of those key themes what the SRA's expectations are. The relevant bits of the Code of Conduct or other pieces of regulatory information set out what the SRA expects from you. At the end of each section, there are suggested questions you need to ask yourself, almost like a checklist.

At the end of my summary note—my 18 pages—I've put together a checklist. If you do nothing else, read the checklist. It provides a summary of what the SRA is saying you should have in place. You can review your procedures, have a look at it, and document that you've actually done a review in light of the thematic review findings. This shows you've read it, or at least read my summary, and you can make changes if you think they're appropriate, such as implementing a WhatsApp policy if you don't already have one. Additionally, revisiting how supervision is recorded on the file is also important.

Now, that's really helpful, Amie. If people are watching this and thinking, "What do I do? I need help with putting together procedural documents, policies within a firm, or assistance with vulnerability training," what sort of services do you offer and how do people get in touch with you?

Well, all of the above. Any assistance in relation to safeguarding, particularly working with vulnerable clients, or equality and diversity. It's not just me—there are lots of courses out there that I'd really recommend for people to do as well. If you need help with drafting policies, reviewing your current practices, or would like a conversation about what you currently do versus what you might be able to do slightly differently to ensure compliance, absolutely get in touch. You can find me on the DG Legal website and drop me an email anytime at Amie@dglegal.co.uk. I'm happy to help and have a conversation to see if we can assist in any way.

Brilliant, that's so helpful, Amie. So, there's a lot of food for thought for people in terms of going through the review or Amie's note. Some practical questions to ask yourself and review include: Do I have training needs? Are there things I need to implement in terms of policies within my firm? I'll put the link to Amie's note in the description of this video and on social media as well.

Thank you so much for giving up your time today, Amie. It's really important information to consider going forward because, as you said at the beginning, we've seen a trend of these reviews from the SRA, and I don't think things are going to change. This is clearly the direction of travel, and firms need to be aware of it.

Absolutely, and I think we all recognize that working in this sector, we sometimes feel up against it. It's an incredibly complex area of law, we're often working with vulnerable clients, and it can feel like everyone's ganging up on us, that the world is against us. But there are positives to take from this. It is constructive, and I think if you're able to look at it and make some slight tweaks to your practices, it's going to benefit your practice as a whole, your individual staff members, and ultimately the clients. And at the end of the day, that's what really matters.

Brilliant. Thank you so much, Amie. I really appreciate it.

Pleasure.