Legal aid arrangements onwards appeals from the asylum and immigration tribunal in Northern Ireland

MAY 2005

Introduction

Law Centre (NI) is an independent charity which advises and represents individuals in a number of different areas of law.  The immigration unit within Law Centre (NI) is run by four members of staff, based in both the Belfast and Western Area Offices of the organisation.  The Centre employs both barristers and solicitors and is the main provider of immigration and asylum advice and representation in Northern Ireland. Our immigration and asylum work is currently funded through a grant arrangement with the Northern Ireland Legal Services Commission.  This arrangement has been in place since 1 April 2005. Prior to that the work was funded by the Home Office by way of grant in aid

Law Centre (NI) provides a free confidential and professional service representing individuals both at the initial stage of applications as well as at the appeal stage following a negative decision. The majority of our active caseload consists of representing appellants before the Asylum and Immigration Tribunal (AIT), in the High Court and beyond where necessary.  We provide a dedicated immigration legal advice line 9.30 am to 1.00 pm five days a week and are the only organisation in Northern Ireland which provides this service.  Furthermore, we are the only voluntary sector organisation in Northern Ireland which provides representation before the AIT. The immigration unit also facilitates the Immigration Practitioners Group which meets on a quarterly basis to discuss relevant legislative, policy and practice issues in the area of immigration and asylum law.

Law Centre (NI) provides training for lawyers and voluntary sector organisations in Northern Ireland some of which has been in partnership with the OISC.  We publish policy documents in response to proposed changes in law as it affects our clients and the wider minority ethnic groups.  We publish information leaflets and are currently working in partnership with the Northern Ireland Human Rights Commission on an information leaflet relating to the rights of migrant workers specifically in Northern Ireland.

Summary response

Law Centre (NI) welcomes the opportunity to respond to this consultation document. Our concerns with regard to the proposed legal aid arrangements for onwards appeals from the Asylum and Immigration Tribunal are as follows:

Law Centre (NI) is extremely concerned that the government intends to replicate the Legal Aid provisions which were introduced in England and Wales on 4 April 2005.  The situation in Northern Ireland is starkly different in that asylum seekers are not dispersed to Northern Ireland and there are very few lawyers in Northern Ireland practising immigration and asylum law.  Solicitors in Northern Ireland operate within firms which are very small in comparison to equivalent firms doing the same work in England and Wales.  Many practices in Northern Ireland are run by sole practitioners.  In our knowledge, there are less than ten firms which advise and represent in relation to asylum and immigration law.  Moreover, there is no evidence that legal advisers are taking unmeritorious claims through the appeals process in Northern Ireland. As a result, the rationale for the proposed arrangements in England and Wales do not appear to prevail here. The proposed arrangements will impact negatively on clients in a number of ways because of the size of the firms and the small numbers of solicitors carrying out this work in Northern Ireland. In particular, if the proposals are introduced

(i) small legal practices will be unable to bear the financial burden of taking cases to the Tribunal on review;

(ii) the financially less well off appellant will find it even more difficult than it currently is to obtain good quality legal representation in Northern Ireland at the onward appeal stage.

The Executive Summary of the consultation paper states that the AIT will be “fair, swift and efficient and will provide an independent, effective remedy for those appealing against an immigration decision”.  From our experience, the proposed arrangements will result in an unfair system being put in place with the most vulnerable minority ethnic groups in Northern Ireland will effectively being denied experienced, professional representation before the Tribunal. 

Law Centre (NI) considers that the proposed arrangement will result in more people having to proceed unrepresented before the AIT and therefore we do not accept that the proposed arrangements will lead to a swift procedure as unrepresented and poorly advised applicants will result in longer hearings before the AIT which will ultimately be more costly. 

It does not appear to us that the new proposals provide an “effective remedy” as limiting an appellant’s access to professional and experienced representation is in itself a denial of access to justice.  The implications for individuals in this area of law can be potentially life threatening and contrary to the ECHR.

We note that the proposed arrangements have not been introduced in Scotland and would suggest that the Northern Ireland context is closer to Scotland than England and Wales. As a result, Northern Ireland is sufficiently different to justify a different policy from that in England and Wales.

KEY ASPECTS OF THE NEW ARRANGEMENTS

A retrospective test

Paragraph 16 of the consultation paper refers to public funding being rewarded retrospectively at the end of the process “usually following reconsideration”.  Our understanding is that apart from those cases specifically exempted, it is proposed that a successful decision to award legal aid retrospectively can only be made at review stage following reconsideration of the initial AIT decision.  We therefore seek clarification as to the sentence in paragraph 16 which states “usually following”.

Rule 26(6) the Asylum and Immigration Tribunal (Procedure) Rules 2005 provides that an Immigration Judge may make an order for reconsideration;

 “only if he thinks that -  

(a) the Tribunal may have made an error of law; and

(b) there is a real possibility that the Tribunal would decide the appeal differently on reconsideration”.

Where an Immigration Judge makes an order for reconsideration then we consider that representatives should be certain of payment without further scrutiny, subject to there being no dishonest misrepresentation, as the judiciary has recognised the merits of the case at this stage. 

It is stated that the element of risk involved in retrospective funding is intended to “encourage lawyers throughout the profession to rigorously assess the merits of the case before deciding to pursue it, which will in turn reduce the volume of weak applications”. Immigration and asylum law is a constantly developing field.  With an extremely high refusal rate at the initial stage of the process in this area of law, immigration solicitors represent a disproportionately high number of clients who become appellants. There have been cases previously which may have be considered “weak” at the appeal stage before the Tribunal under the old procedure which, after further legal challenges have resulted in the issuing of full refugee status or leave to remain in some other form by the Home Office.

Solicitors in small to medium sized firms and not for profit organisations representing poor appellants will simply not be able to risk taking cases to the review stage of the procedure, for fear of not being paid for work carried out.  This will result in appellants being abandoned by their representatives at the onward appeal stage and in the case of Northern Ireland will make it practically impossible to find proper representation at this stage of the process owing to the very small number of people practising in this particularly specialised area of law.

Law Centre (NI) considers that the proposed new arrangements will ultimately result in those few solicitors who currently practise asylum and immigration law in Northern Ireland leaving this area of law, as it is simply not profitable enough to allow them to absorb these potential losses. 

Only those clients who can afford to pay privately will be in a position to consider accessing the review stage of the appeal process without concern that their representative will not be able to take the case forward on their behalf.  The denial of proper representation in Northern Ireland at the onward appeal stage would lead to this area of law suffering from a lack of full judicial scrutiny. In turn this will have an adverse impact on the quality of decision making within the AIT. The implications for immigration clients would be the denial of a legal remedy which may result in individuals being returned to their home country and suffering human rights violations. 

It is also unclear how any move to retrospective legal aid funding of onward appeals would impact on the payments being made on a quarterly basis to the Law Centre by the Northern Ireland Legal Services Commission.  The grant arrangements cover significant fixed costs including the salaries of staff who conduct the appeals.  Therefore any implementation arrangements that led to reduced funding for a particular period because of a negative legal aid finding by an immigration judge could impact on our ability to maintain a high quality level of service.  As a non profit organisation we operate within very tight margins and would find a fluctuating income stream very difficult to manage.

Law Centre (NI) considers that retrospective finding should not be introduced in Northern Ireland. If the Department is unable to accept this recommendation we consider that, in the alternative, retrospective legal aid funding should not be introduced for work covered by Law Centre (NI)’s contract with the NI Legal Services Commission.  Failing either of these suggestions we consider that retrospective legal aid funding should not be introduced until at least April 2006 when the current contractual arrangements cease.

Prospects of success

The proposed test to determine whether public funding should be awarded, i.e. ‘a significant prospect of success’ is higher than the test contained in Rule 26(6)(b) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 for reconsideration namely ‘a real possibility that the Tribunal would decide the appeal differently’. Law Centre (NI) can see no justification for the disparity between the thresholds which must be satisfied. Furthermore, Law Centre (NI) would want to be reassured that those representatives who act in good faith on the information they have obtained from their clients and from the Home Office but who later learn that the information is perhaps incorrect, would not be denied funding for having proceeded with the case to the reconsideration stage.

Internal review of funding decisions

If a solicitor is not happy with the AIT’s decision on funding, an application could be made to the AIT for the decision to be reviewed and written representations can be made available to the AIT in relation to this issue.  Law Centre (NI) considers that given the seriousness of the decision to refuse funding both financially and in relation to a representative’s professional judgement on these matters, that there should be a right to make oral representations. 

Law Centre (NI) also considers that following a refusal further to a review within the AIT of the decision to refuse funding, there should be a further right of appeal to an external body given the potential seriousness of this decision.  Representatives should be remunerated for representations made at this stage.

In relation to risk sharing, it is not clear whether barristers will also be able to apply for a review of funding decisions independently of solicitors. Law Centre (NI) considers that barristers should have independent right of review as their grounds may differ from that of solicitors and solicitors may not necessarily be in a position to justify all work carried out by Counsel

Remuneration

Law Centre (NI) is certain that the risk of not being paid for work carried out at the onward appeal stage will result in even fewer immigration practitioners in Northern Ireland being prepared to take on cases.  While we welcome a risk premium which may alleviate losses to some extent, Law Centre (NI) maintains that competent representation before the AIT at the onward appeal stage in Northern Ireland would be greatly reduced. This would result in a drop in a number of important legal challenges and ultimately clients will be denied access to justice via a meaningful remedy.

In the consultation paper, paragraph 26 refers to the proposed appeal premium being an additional 25% of the existing rates paid in Northern Ireland.  However, draft regulation 7(2)(b) Legal Aid (Asylum and Immigration) Regulations (Northern Ireland) 2005 states;

“the person or persons to whom payment is to be made, and the Commission shall determine those matters in accordance with the provisions of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 as if the section 103D Order was a Civil Aid Certificate granted under part 2 of the Order, save that the Commission may determine that an additional risk premium shall be payable in that case together with the level of that risk premium.”

In light of the apparent discrepancy we request clarification on whether the Commission will always pay the risk premium of 25% of existing rates for all work carried out at the onward appeal stage when a positive decision regarding funding is made.  In addition, we understand that the risk premium has been increased to 35 per cent in England and Wales.

In relation to disbursements, Law Centre (NI) agrees that these should be payable in all cases. We would, however, ask that those listed in the consultation paper, i.e. experts and interpreters, are not treated as an exhaustive list so that all disbursements, for example, medical reports, are paid in onward appeal cases.

Conclusion

The tiny number of immigration and asylum legal representatives in Northern Ireland make it very difficult for individuals to obtain competent, professional representation.  Law Centre (NI) is very concerned that the proposals contained in this paper will result in the few solicitors practising in this area of law abandoning it owing to the financial risks involved and the effect it would have on their small businesses.  As a result, some of the most vulnerable people in our society will be prevented from fully accessing a legal system which has been established to provide judicial scrutiny to the decisions of Immigration judges.  We consider that these proposals will have an even more negative impact in Northern Ireland than in England and Wales. In any event, such changes should not be introduced until research has been conducted into whether there is any evidence of unmeritorious claims actively being pursued in Northern Ireland.

Fidelma O'Hagan

Solicitor