Written by Lucy Mayblin, Hannah Lewis, Rebecca Murray, Tom Nunn
With special thanks to Rivka Shaw, Jo Wilding, Brian Dikoff, Kate Wisbach and Amanda Spalding.
Photo by Mikhail Nilov on Pexels
On 20th April, at a collaborative event between South Yorkshire Refugee Law and Justice, and the University of Sheffield, participants discussed the woeful state of immigration legal aid, and legal advice, in England and Wales. Legal advice providers, NGOs, academics and activists met to learn and think together. And what we heard was deeply concerning. At least 25,000 people nationally were unable to access an asylum legal aid lawyer in 2021-22. Nearly 50% of asylum applicants do not have legal representation. In Yorkshire alone 4000 people are without representation. Some areas have no legal aid lawyers at all. This is getting worse as the Home Office moves to ‘full dispersal’, placing asylum applicants in new areas across the UK.
Access to legal aid is about access to justice and protection from persecution. It also plays a vital role in the efficiency of immigration and asylum systems. In England and Wales, only asylum cases and a small number of other case types are eligible for immigration legal aid. People who fall outside of these criteria will not then be entitled to free legal advice. But even if someone is eligible for immigration legal aid (because they are seeking asylum, for example), it may be difficult to find a lawyer. In some cases, even though there is a provider with a legal aid contract, they are unable to do any legal aid work because they cannot recruit lawyers. This is because pay is very low in immigration legal aid compared to other areas of the legal profession. Legal aid lawyers fees have not increased since 2000 with a reliance on a fixed fee regime which means that the more work the lawyers do, the less they are paid in real terms. This is not just about lawyers wanting to be paid more money, more hours put in preparing a case means that stronger cases are submitted and the system is more efficient. It also means that we end up with fewer people taking funding from councils in other areas (via the Care Act, homelessness, domestic violence support, and No Recourse to Public Funds, etc.) as they wait in limbo for a decision on their case or appeal, or once they are wrongfully denied asylum because they received poor representation. Injustice produces social problems.
Within the wider legal profession, immigration law is relatively poorly paid, particularly legal aid provision, and alongside unsustainably high workloads and risk of vicarious trauma, it is very difficult to recruit new advisers. And because the funding model does not work, fewer and fewer providers are signing up to offer legal aid provision. With people who have applied for asylum being dispersed to an increasing range of different towns and cities, people often find themselves in a legal aid desert. But while the issue of immigration legal aid has largely remained hidden from public discussion, it sits in the background of high-profile issues such as the asylum backlog. How can cases smoothly move through the system if tens of thousands of people lack any form of legal advice or representation?
Now, and in the worst possible circumstances, the implementation of the ‘Rwanda Plan’, means that the government has been incentivised to act. Radical changes to the UK’s asylum regime, described by UNHCR as ‘an effective asylum ban’ mean that most people who want to apply for asylum will be detained and the government will attempt to deport them to Rwanda. But the Nationality and Borders Act 2022 expanded legal aid entitlement to individuals prioritised for removal from the country. Leaked documents show that the government need enough lawyers to take 3000 cases per month from January as they roll out the Rwanda plan. This seems to have spurred them to action, with discussions of a 15% or more increase in legal aid fees to incentivise law firms to take the cases.
What the government test on immigrants often gets introduced for the wider population, making immigration legal aid an issue for everyone who cares about access to rights and justice. Sustainable and just changes to legal aid cannot be meaningfully achieved to facilitate a policy agenda that violates international human rights law. Instead, change needs to come from a meaningful commitment to equality of access to justice. Knowledge exchange and community education can enable a wider understanding and contribute to building momentum for change. Our event was one contribution to this agenda but there is a long road ahead in making immigration legal aid accessible to everyone entitled to it.
At the event, the experts present were asked to give information or advice in a short video. You can view the series here.
Sociological Studies Research 