Why are people seeking asylum still being denied access to justice? - Refugee Council
July 15, 2019

Why are people seeking asylum still being denied access to justice?

Too often people seeking asylum are unable to access the essential legal advice and representation they need in order to stand a chance at being granted protection in the UK. It’s a huge issue for many of the people we work with and therefore one we’re always seeking to highlight.

On 26 June 2019, the All-Party Parliamentary Group on Refugees, chaired by Thangam Debbonaire MP, organised a meeting on the immigration legal aid market and access to justice. It gave us the opportunity to discuss findings from Dr Jo Wilding’s new report, Droughts and Deserts, which looks at the immigration legal aid market, and hear the experiences of  Meraf Ayalwe, a woman who claimed asylum in the UK. Below is a summary of this event written by the Refugee Council’s Paola Faraci.

Meraf’s story

Meraf is a young woman with a welcoming smile. When you first meet her, you have the impression of someone who is well grounded. This soon becomes a certitude once you hear her story. Meraf arrived in the UK from Ethiopia in 2008, when she was just 17 years old, seeking international protection. Today, 11 years later, her asylum case is still ongoing.

After Meraf’s first asylum claim was refused in 2008, her solicitor decided not to represent her anymore. Because she was unable to go back to the country she escaped from, Meraf challenged the Home Office decision, engaging in a 2-year legal battle. When her appeal was finally refused in 2011, Meraf found herself destitute, stuck in a system she wasn’t able to navigate and with great fear of the unknown.

In 2018, having no choice other than starting a fresh asylum claim, Meraf applied for legal aid for the third time since she arrived in the country and, for the third time, the system failed to support her. After their first meeting, Meraf’s new solicitor vanished behind a wall of unanswered calls, emails and hopeless messages, leaving her in a legal limbo and with no place to go. I met Meraf during the last APPG on Refugees meeting in Parliament on the immigration legal aid market and access to justice, where I was impressed by her determination. Although, Meraf’s is an extreme case, it is not unusual. Many people seeking asylum, like Meraf, have experienced similar difficulties in accessing quality legal advice, particularly since the Government decided to introduce a set of austerity measures, including cuts to legal aid advice and representation.

Poor quality and inadequate availability of asylum legal aid services is a widespread but often overlooked phenomenon. The APPG meeting, kindly hosted by Thangam Debbonaire (MP for Bristol West), offered a space where MPs, law practitioners and professionals active in asylum and refugees protection had the chance to confront the subject.

Research by Dr Jo Wilding

According to Doctor Jo Wilding, immigration and asylum barrister, poor quality and inadequate availability of asylum legal aid services is a by-product of the current legal aid system. In her research paper “Droughts and Deserts. A report on the immigration legal aid market”, she suggests that legal aid provision is affected by a common market failure called monopsony (the opposite of monopoly).

A monopsony occurs when there are multiple sellers and a single buyer, the latter having a controlling advantage that drives its consumption price levels down. In our case, the single buyer is the Legal Aid Agency that has established a fixed-fee regime where each asylum case is paid at a flat rate, regardless of the amount of work necessary to support the client adequately.

The majority of interviewed solicitors claimed the average cost of a single case was substantially higher than the fixed fee. This extra cost is generated by inherently complicated cases, by poor case management or by some unfortunate decisions made by the Home Office, and it is shifted onto legal aid providers. As a consequence, two main coping strategies have been adopted, both by private and not-for-profit providers, to contain their financial losses: (i) capping quality and work to a level corresponding to the fixed-fee threshold and (ii) cross-subsidising legal aid cases with revenue from other, more profitable, activities.

While legal aid providers choosing not to compromise the quality of the assistance provided have been forced to reduce the number or stop accepting legal aid cases, less responsible providers have been allowed to lead the market due to the absence of an efficient control mechanism. This situation clearly damages all asylum seekers and especially the more vulnerable, who require high-quality legal support.

In the last 10 years, roughly 40% of legal aid providers withdrew from the market or moved towards fee-paying services, with serious consequences on access to services. There are certain areas of the country where there is no legal aid provision at all for immigration matters and other areas with an apparent abundance of supply but where, de facto, providers are unable to take on new cases due to a lack of or very limited capacity. Those areas correspond to the advice “deserts” and “droughts” mentioned in the title of the report.

In the case of Meraf, she finds herself in a legal “drought” where many good firms have been discouraged from representing her in a fresh claim because of her already-complicated legal situation. Therefore, she ended up in the difficult position of being assisted by an unreliable lawyer to whom she was tied by legal obligations. Luckily, a few months ago, she met Farida Stanikzai from Barnet Refugee Service, who is helping her to get back on track with her life and secured her some financial support from the Zakat Foundation.

At the end of the meeting, the discussion was brought to life by several interventions that offered an insightful perspective on legal aid provision from specific areas of expertise. For example, the issues faced by individuals in immigration detention in accessing legal representation. Finally, some key recommendations were formulated:

  • A broad consensus gathered around the need for reform of the immigration legal aid system to reconcile quality, accessibility and financial viability of the service provided;
  • The creation of a control mechanism that will support high-quality providers while sanctioning poor-quality ones should be encouraged;
  • Moving away from the standard fee regime which protects poor-quality providers and does not secure enough income for quality ones should be considered by government;
  • Government should look further into the legal aid system to tackle the root cause of price escalation for single cases, whether stemming from poor Home Office decisions or from poor case management.
  • The reform of legal aid provision should be part of a broader political change that aims attending the “hostile environment” that discourage people from coming to the UK in the first place.

The recommendations were welcomed positively by parliamentarians who attended the meeting.

However, there is a lot more work to do to make sure that the recommendations discussed are picked up by those who can deliver the political changes the legal aid system needs to be sustainable, efficient and fair for everyone.

Two refugee journalists named Ibtihag Mahjub and Shakib Mohammad Afzali from the Refugee Journalism Project also joined us on at the APPG event. They provided these two summaries of the event, which you can access them here and here.