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The false economy of giving sloppy legal advice to asylum seekers

Bringing the hammer down. How the legal system fails the world’s most vulnerable people. Tori Rector, CC BY-SA

Picture this: in another country, where you don’t speak the language, you’re questioned with the aid of an interpreter. The authorities expect you to remember distant dates, details of what people did. They ask you the same question over and over, then say you’ve answered differently on two occasions, which proves you’re lying.

You suggest that there’s a misunderstanding; the interpreter might have made a mistake. That, they tell you, is further proof that you’re a liar, trying to blame the interpreter for the fact that you can’t keep your story straight. You have a right of appeal, but your legal advisor explains nothing, asks nothing and eventually tells you that there’s nothing more they can do for you.

This is the scenario faced by some people seeking asylum in the UK. These individuals desperately need good quality legal advice to counter poor quality decision making in the Home Office – but they’re not all getting it. I have witnessed all of the above in Home Office refusal letters and in Immigration and Asylum Tribunal hearings.

“Sloppy” work

In my opinion, some people are forced to return to their home country, where they fear persecution, or forced into destitution or indefinite detention in the UK because they received inadequate legal representation. A long-awaited report on the quality of asylum legal advice is due for publication within weeks and is expected to shed light on some of the risks, failings and best practices in asylum representation.

Concerns have already been raised that people seeking asylum were suffering as a result of a complex asylum system and sometimes “sloppy” legal advice. Legal regulators were warned to improve oversight and research has been undertaken in an effort to improve legal advice by solicitors. However, given the existing regulation, government accreditation exams and requirements of the Legal Aid Agency, clearly the problem is not a straightforward lack of regulation or oversight.

End of a long journey. Start of a new one. Irish Defence Forces, CC BY

Lawyers are no more popular than asylum-seekers in public opinion and the government’s response is to blame lazy “fat-cat” lawyers on a “legal aid gravy train”. Numerous committed lawyers are providing high quality representation on tiny budgets as low as £19.50 per hour, charged to the firm, not the employee. There are concerns that the legal aid contract obstructs good quality work, even encourages poor work.

Cutting costs, cutting corners

So what would constitute good practice? Preparing a detailed statement from the client; taking time to reassure them so they feel able to disclose all aspects of their experiences including rape or torture; obtaining expert reports on scarring, trauma or the legal position in the home country; reading through lengthy interview records to check for accuracy; giving the client information about what to expect. All of this takes much longer than the Legal Aid Agency will pay for on the fixed fee. In the end it is a false economy. Money is spent on unnecessary appeals, periods of detention in immigration removal centres and enforced removal.

My research on unaccompanied children identified similar issues, with a wide variation in quality. Some good advisors (as identified by social work and NGO interviewees) said they spent as much time fighting to obtain funding to prepare a case properly as they did fighting the Home Office over the actual decision.

More worryingly, others spend an hour signing up the client as a new case and do little, if any, other work until asylum is refused. One solicitor told me that this was a practice at her previous firm and this was borne out by some of the files I have reviewed for the upcoming report. The peer review data of her ex-firm’s work was “awful”, she said, but no different from the other firms remaining open in the area.

Hanging on for justice. Michael Coghlan, CC BY-SA

The Legal Aid Agency has shown little inclination to distinguish between these organisations, so that some clients are compelled to go to poor quality firms or manage by themselves. Legal aid cuts have driven multiple organisations out of business.

Grievance procedure

One particular concern has been the low level of complaints from asylum seekers. But it’s no surprise.

Would-be complainants must first understand the complaints procedure, then feel confident enough to explain that their representation is not good enough to the firm on whom their case still depends. They must then wait eight weeks for a response before contacting the ombudsman if they’re still dissatisfied. This process can drag on, alongside their own asylum appeal process.

They may be detained, which happens to around 30,000 migrants a year, though not all asylum-seekers. They may also be removed from the country, which happened to 6,788 in 2014. Or they may end up struggling to survive on the streets – some 5,000 were assisted by the British Red Cross in 2014.

Poor quality decision making, combined with poor quality representation, leads to people’s asylum applications being refused and their appeals dismissed. Those people are classed as “failed” or “bogus” asylum-seekers. The assumption that they lied fuels harsh debate and harsh policy aimed at deterring asylum-seekers, and makes it harder for those that get here to prove what has happened to them. People who genuinely are at risk of torture in their home countries end up destitute on the streets, detained indefinitely or returned to their countries of origin. We should all care.

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