Funding for asylum cases
Public funding for representation and advice in asylum matters has survived LASPO relatively unscathed. Alison Harvey looks at what remains available for those in the most desperate of circumstances and what lawyers working with them need to know.
Legal aid may be down, but it’s not out completely – at least not yet. Legal Action’s ‘Use it or lose it’ series aims to highlight what remains of legal aid, and to show practitioners how they can make the most of it to help their clients obtain much-needed access to justice.
It is a criminal offence for an unqualified person to ‘give immigration advice or give immigration services’ in the course of a business whether or not for profit (Immigration and Asylum Act (IAA) 1999 s84). A ‘qualified person’ is a practising solicitor, barrister, legal executive or someone regulated by the Office of the Immigration Services Commissioner. While there are exceptions, these are narrowly drawn, although an important one is when the advice is given in the context of criminal proceedings. Work on asylum cases must be carried out by people accredited to the appropriate level (for the majority of asylum work, level 2) of the Law Society Immigration and Asylum Accreditation Scheme (Immigration and Asylum Specification (IAS) 2013 para 8.20).
Thus those who cannot afford to pay for advice on immigration and asylum stand in sore need of legal aid. In broad terms, the effect of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012 is that immigration cases are out of scope; asylum cases are in. The immigration exclusion is subject to a number of limitations, which are inadequately understood and will be the subject of a subsequent article. In this article the focus is on asylum.
Immigration and asylum cases frequently last a very long time. It is not uncommon to be dealing with a case under the Access to Justice Act 1999, given the provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Consequential, Transitional and Saving Provisions) Regulations 2013 SI No 534. Although asylum remains within scope, the transitional provisions are relevant to the question of connected matters, discussed below.
If you see asylum matters relating to applications for asylum made before 1 October 2014, including fresh claims where the original application dates from before 1 October 2007, these will not be subject to the graduated fixed fee scheme (IAS para 8.77). A fresh claim does, however, constitute a new matter.
Asylum cases remain within scope (LASPO Sch 1 Pt 1 para 30) and are broadly defined as claims for leave to enter or remain in the UK arising from:
•the 1951 UN Convention Relating to the Status of Refugees (the refugee convention);
•articles 2 (right to life) and 3 (prohibition on torture, inhuman or degrading treatment or punishment) of the European Convention on Human Rights (the convention);
Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced people and on measures promoting a balance of efforts between member states in receiving such people and bearing the consequences thereof (the Temporary Protection Directive);1See Immigration Rules Part 11A. This is designed for use where there are ‘mass influxes’ of refugees but has never been used in the UK to date.
•Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless people as refugees or as people who otherwise need international protection and the content of the protection granted (the Qualification Directive), which sets out how refugees and those in need of international protection because of breaches of their rights under the convention will be treated under EU law.
This means claims for humanitarian protection under the Immigration Rules as well as claims for recognition as a refugee remain within scope.
Applications for further leave to remain, including for settlement, from a refugee, someone with humanitarian protection or someone with discretionary leave granted under any of the above instruments2This will generally be discretionary leave granted to persons qualifying under article 3 of the convention in cases where they do not meet the criteria for international protection, for example, in so-called ‘medical’ cases or where the person is excluded from recognition as a refugee or from humanitarian protection.
are also within scope under LASPO Sch 1 Pt 1 para 30.
One article of the refugee convention pertains to recognition as a refugee and 33 are concerned with the rights and entitlements of refugees. Chapter VII of the Qualification Directive similarly looks at the content of international protection. Thus, the limits of rights ‘arising from’ the refugee convention etc have yet to be tested. Family reunion is not a right set out on the face of the refugee convention, although it is mentioned in the Final Act3Final Act of the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, 25 July 1951.
of the conference that adopted the convention. In Gudanaviciene and others v Director of Legal Aid Casework and another
 EWHC 1840 (Admin), 13 June 2014, Collins J held that it was a right ‘arising from’ the refugee convention, and thus within the scope of LASPO Sch 1 Pt 1 para 30, only to be overturned in R (Gudanaviciene and others) v Director of Legal Aid Casework and another
 EWCA Civ 1622, 15 December 2014. At the time of writing the matter was under appeal to the Supreme Court. The basis on which the Court of Appeal overturned Collins J was that:
145 … A right ‘arises from’ an instrument referred to in para 30 if and only if it is contained in that instrument, not by reason of some looser connection.4The court’s description of the case for the appellants, with which it then (para 147) indicated that it agreed.
This suggests that other rights of refugees, protected within the text of the refugee convention, might fare better. For example, article 3 of the refugee convention prohibits discrimination and article 16 makes provision for access to the courts on the same terms as nationals.
Advocacy in asylum appeals (LASPO Sch 1 Pt 3 para 13) that are heard in the Immigration and Asylum Chambers of the First-tier Tribunal and Upper Tribunal is in scope, as is advocacy in the High Court, Court of Appeal and Supreme Court (LASPO Sch 1 Pt 3 paras 1–3).
An asylum application and any asylum appeal constitute one matter (IAS paras 8.29–8.35). Ninety per cent of asylum matter starts must be used for clients in the legal aid lawyer’s procurement area where the matter is started (IAS paras 8.24–8.25). Bear in mind, however, the size of the legal aid procurement areas in immigration and asylum.
Legal aid is available for judicial review in asylum and immigration as in other areas of law (LASPO Sch 1 Pt 1 para 19). Asylum cases are affected by the restrictions on judicial review specific to immigration and asylum cases but are the subject of specific protections.
The exceptions bar legal aid for judicial review in ‘an issue relating to immigration’ in two circumstances: firstly, where the same issue, or substantially the same issue, was the subject of a previous judicial review or an appeal to a court or tribunal; or where a court or tribunal found against the would-be claimant; and less than a year has elapsed since the day of that previous determination (LASPO Sch 1 Pt 1 para 19(5)). It is necessary for lawyers to identify clearly what is new in their judicial review challenge and has not previously been litigated. Very many judicial reviews with good prospects of success will be able to satisfy this test.
Secondly, in a judicial review of removal directions where the directions were given a year or less after the latest of:
•the making of the decision (or the latest decision) to remove the person from the United Kingdom ‘by way of removal directions’ (LASPO Sch 1 Pt 1 para 19(6)(a));
•refusal of leave to appeal against that decision;
•or the determination or withdrawal of that appeal.
The first special protection for asylum (LASPO Sch 1 Pt 1 para 19(7)(a)) is for:
… judicial review of a negative decision in relation to an asylum application (within the meaning of the EU Procedures Directive)5Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status. where there is no right of appeal to the First-tier Tribunal against the decision[.]
These are cases where a person, having been refused asylum and not having appealed, or having appealed and lost, starts the process over again by putting forward a new claim for asylum. The effect of the reference to the Procedures Directive is to limit claims for asylum to claims under the refugee convention relating to the status of refugees and to exclude applications based on the human rights convention. The first matter for the Home Office to decide is whether the application constitutes a ‘fresh claim’ or merely reasserts the old, unsuccessful one. There is no right of appeal against the refusal to treat the application as a fresh claim and it is judicial review of that refusal that LASPO Sch 1 Pt 1 para 19(7)(a) protects.
LASPO Sch 1 Pt 1 para 19(7)(b) protects judicial reviews of certification under the Nationality, Immigration and Asylum Act (NIAA) 2002 s94 or s96. Section 94 is concerned with the certification of certain immigration or asylum claims as clearly unfounded. Section 96 is concerned with the certification of such cases on the basis that the matter was raised, or could have been raised, in an earlier appeal, regardless of whether or not the person exercised a right of appeal available at that earlier stage.
There is a further protection in LASPO Sch 1 Pt 1 para 19(8) for judicial reviews of removal directions where prescribed conditions as to the period between the individual being given notice of the removal directions and the proposed time for their removal; and the reasons for proposing that period are met. No conditions have been prescribed. The wording has yet to catch up with the amendments to immigration and asylum procedures effected by Immigration Act 2014 s1, whereby individuals will no longer be given notice of removal directions.6Immigration cases are also affected by the failure of LASPO to keep pace with the changes effected by the Immigration Act 2014, in particular the creation of a new NIAA 2014 s94B, which includes a new power to certify.
Asylum support is dealt with separately from asylum in LASPO Sch 1 Pt 1 para 31. In particular, work on these cases can only be done under the housing category and not under asylum or immigration (or indeed under community care: Legal Aid Agency amended Category Definitions 2013 of 18 February 2013).
Under LASPO, as before its passage, legal aid is available only for advice and not for representation before the First-tier Tribunal (Asylum Support Chamber). A further restriction imposed by LASPO is that legal aid is available only for cases under IAA 1999 ss4 and 95 involving provision of accommodation as well as support for essential living needs.
Where the application is for support for living needs only, because the applicant has accommodation, legal aid is not available. Legal aid for judicial review for asylum support cases under LASPO Sch 1 Pt 1 para 19 is not affected by any of the exclusions from judicial review that affect immigration and asylum cases.
Although the 1954 Convention Relating to the Status of Stateless Persons (the stateless persons convention) is in almost identical terms to the refugee convention, no provision has been made for legal aid for people who seek leave to remain in the UK as stateless people. The omission is deliberate, for the matter was brought to the attention of the Ministry of Justice and the Legal Aid Agency by the Immigration Law Practitioners’ Association and others.
Where a person receives advice on an asylum case but in the end decides not to claim asylum, the amount that can be claimed is limited to £100 inclusive of disbursements (IAS 2013 para 8.80(a)(ii)). This also applies where the client does claim but provides no further instructions, eg where a client is dispersed to another area of the country immediately after screening.
This is a potentially useful safeguard to ensure those who may be at risk get help, but concern about using up a matter start for such a low-value claim limits its utility in practice. Where it is of assistance is in cases of trafficked people. Many trafficked people have a claim for asylum, but not all. While legal aid is available for trafficked people, it is currently only available after a ‘reasonable grounds’ decision that the person is a potential victim of trafficking has been reached under the National Referral Mechanism. The person thus does not have access to advice that might assist with the decision as to whether or not to get in touch with the authorities and how the case might be presented to them. Because these are matters directly relevant to any asylum claim, initial advice can be given in the context of the potential asylum claim. If a claim is made, the work continues. If not, there is the potential for the representative to pick the case up again when a positive ‘reasonable grounds’ decision is received, although this would require a new matter.7Subject always to three months having elapsed, the positive decision appearing sufficient to constitute a material development (Standard Civil Contract Specification 2013 s3). The author is grateful to Solange Valdez of Ealing Law Centre for this information.
While attendance of the legal representative at interviews of the person seeking asylum is generally excluded, there is provision for exceptions to be made in regulations (LASPO Sch 1 Pt 1 para 30(3)). The Civil Legal (Immigration Interviews) (Exceptions) Regulations 2012 SI No 2683 (CL(II)(E) Regs) make such exceptions for both ‘screening’ and ‘substantive’ interviews of someone seeking asylum where they are under 18. Where age is in dispute, legal aid is available in cases where the Home Office is treating the person as a child for the purposes of the interview (CL(II)(E) Regs reg 2). This is not done in cases where the Home Office considers that the evidence ‘very strongly suggests’ that the person is ‘significantly’ over 18, but in other cases the person will be treated as a child until a ‘careful age assessment’ has been carried out, normally by a local authority (UK Visas and Immigration Asylum process guidance, Assessing Age, June 2011).
There are two exceptions for adults: for those who lack capacity (CL(II)(E) Regs reg 4) and for the interviews of people whose cases are being dealt with in the detained fast-track accelerated procedures.
Detention and the detained fast-track
Exclusive contracts have been let for controlled work for those in a number of immigration removal centres. There are no exclusive contracts in prisons and the lawyer whose asylum-seeking client is taken into prison is normally expected to act (IAS 2013 para 8.47). People seeking asylum who are in immigration detention have normally been put through the ‘detained fast-track’ accelerated asylum procedure. As set out above, legal aid is available for interviews within the detained fast-track. Matters opened by exclusive contractors as a result of an on-site surgery or for a person in the fast-track are paid at hourly rates.
Existing representatives who have done more than five hours’ work on the case of a close family member, or on the case of the person detained prior to their client being detained, can continue to represent them (exclusive of travel and waiting), subject to considering, when the stage in question of the matter is completed, whether it is in the client’s best interests to refer the matter to another representative (IAS 2013 para 8.6). Unless they reach the escape cases threshold, they will be paid on fixed fees.
Very many people with a ‘protection’ claim to be in the UK also have a claim based on article 8 of the human rights convention, the right to respect for private and family life. Under the rules on connected matters (Civil Legal Aid (Connected Matters) Regulations 2013 SI No 451), funding is only available for the asylum element of the case, unless exceptional funding can be obtained. If a person has both an asylum and an immigration case (eg a Syrian student now applying for asylum but who also has a case under article 8 based on a British or settled partner who cannot be expected to return to Syria, and there being no prospect of his pursuing his studies there), then despite the asylum case’s being in scope, the immigration case will not be.
This creates particular problems in immigration cases because of the provision made for notices under NIAA 2002 s120 whereby a person claiming, for example, to be a refugee can be required to set out any and all additional reasons they have for wishing to remain in the UK. Failure to comply with a ‘section 120’ notice may lead to a case being certified (under NIAA 2002 s96) so as to bar a right of appeal. This becomes all the more important from 6 April 2015, when the provisions as to
a section 120 notice are amended for the generality of cases (Immigration Act 2014 (Commencement No 5) Order 2015 SI No 874).
The exceptions to the general exclusion of immigration cases are relevant here. A trafficked person in receipt of a positive ‘reasonable grounds’ decision as to whether they are a potential victim of trafficking and with a conclusive decision in their favour or pending, and a person meeting the relevant criteria as a survivor of domestic violence, will be able to secure legal aid for immigration matters. In such cases, it is not necessary to open a new matter: both the asylum and the associated immigration aspects can be dealt with under a single matter start (IAS (2013) para 8.34).
The approach to connected matters creates profound professional, ethical and practical problems for those appearing in these cases. Is counsel to decline to address the court on the article 8 aspects of the case? What if they are willing and able to do so, and asked to do so by the tribunal judge, but their instructions do not extend so far? The solicitor, meanwhile, is expected to maintain two separate files, and woe betide the person on audit who cannot show how a particular piece of work pertains to the asylum, rather than the immigration, cases.
Payment and funding
In addition to the matters covered above, the following comments may be helpful.
Cases of separated children seeking asylum are paid at hourly rates, as are cases concerning bail and temporary release, and cases before the Special Immigration Appeals Commission (SIAC). Applications for a determination that a person qualifies for civil legal aid provided as licensed work in relation to the SIAC are also paid at hourly rates. It is accepted that the merits test is satisfied in cases before the commission, which deploys special advocates and closed material procedures.
In addition, hourly rates are paid for advice on the merits of lodging an application for permission to appeal to the Upper Tribunal (subject to a £100 cost limit);8Where advice has not been received under Stage 2 of the standard fee.
for controlled legal representation for permission to appeal and appeals before the Upper Tribunal (IAS 2013 paras 8.93–8.98); cases remitted, reviewed or referred from the Court of Appeal to the Upper Tribunal or the Upper Tribunal to the First-tier Tribunal.
As to disbursements, it is possible to claim disbursements other than counsel’s fees after six months where no other claim has been made (IAS 2013 para 8.104), or if more than six months have elapsed since the previous entitlement to make a controlled work claim or since the previous application for payment. In asylum (and immigration) controlled work, counsel’s fees are treated as profit costs and not as disbursements.
Many experts in immigration cases are not included in the Legal Aid Agency’s codified table of experts. For example, there is no set rate for country experts. It is standard practice for the agency to demand that (usually three) quotes are obtained (Standard Civil Contract Specification 2013 para 6.61), although in a number of cases there will not be three people qualified to give the necessary expert opinion.
Value-added tax should not be charged on cases of people seeking asylum (Legal Aid Agency, Costs Assessment Guidance 2013: for use with the 2013 Standard Civil Contract para 4.29, July 2014).
The residence test
The spectre of the proposed residence test hangs over not only immigration and asylum, but the whole of legal aid funding. Its implementation was put on hold, and the instrument that would have brought it into effect withdrawn (the draft LASPO Act 2012 (Amendment of Schedule 1) Order 2014), following a legal challenge in R (The Public Law Project) v Secretary of State for Justice, Office of the Children’s Commissioner intervening
 EWHC 2365 (Admin), 15 July 2014, which is now subject to appeal. The test would require lawful residence in the UK and 12 months’ lawful residence prior to the date of application for legal aid, with eligibility policed by legal representatives. The government was persuaded, by arguments based on its obligations under the refugee convention,9See briefings on the residence test by the Immigration Law Practitioners’ Association at ww.ilpa.org.uk/pages/briefings.html.
to make exceptions for people claiming asylum, including in the context of a fresh claim (although only for the fresh claim, not for legal aid for other matters) and to exempt those recognised as refugees from having to wait 12 months before being entitled to legal aid, but refused to do the same for stateless people, although the relevant provisions of the stateless persons convention are drafted in identical terms. Nor would it make an exception for people granted humanitarian protection.