More than 40% of those applying for asylum in the UK may be being denied legal aid to help fight their cases, new analysis has shown.

The vast majority of asylum seekers are unable to afford legal advice privately. But Ministry of Justice data obtained through a Freedom of Information request and analysed by barrister and researcher Jo Wilding shows there could be an annual deficit in excess of 24,000 between the number of new asylum applications and the number of new immigration and asylum legal aid cases being opened.

There were 63,089 asylum applicants in the UK in the year ending in June 2022. No data on new legal aid cases was available for the same 12-month period, but figures for the year ending in August 2022 – an overlap of ten months with the asylum data – shows there were a total of 32,714 “matter starts” (cases opened) in England and Wales, meaning at least 24,375 asylum seekers may have been unable to access legal aid in those countries – just shy of 43%.

Sam Ariayi escaped from Iran and arrived in the UK in July 2021. He was quickly transferred to a hotel in Reading, where he has been living for the last 17 months.

“In this city, there is no one to help us,” the 24-year-old said. “I received phone numbers from Migrant Help (a charity supporting asylum seekers) to find a lawyer, but unfortunately, all their lists were full. I also called a number of Iranian lawyers, but they were too far from me and I didn’t have enough money to travel to them.”

Without representation, Sam is fearful his asylum claim will not be approved. “I am afraid of returning to the hell of the Islamic Republic,” he said.

A crumbling system

“I don’t think people realise how bad things are,” said Brian Dikoff from Migrants Organise, a charity supporting asylum seekers in finding legal representation. “It’s never been great but, recently, it feels impossible to get someone good representation.”

From 1 September 2020 to 31 August 2021, Wilding found there was a much smaller deficit in legal aid provision of around 6,000. Her figures for the subsequent year suggest the situation is bleaker than ever for asylum seekers hoping to prove that they have a right to remain in the UK.

When a person claims asylum, they are immediately encouraged to find a solicitor to build and represent their case, to create a strong argument for being granted asylum.

“The burden of proof is on the applicant,” said Dikoff. “They have to show they meet the legal definition of asylum. That’s why they need a solicitor.”

The complex asylum system requires a legal representative to navigate it. “The whole asylum process is geared towards refusing people,” explained Niki Adams, of Legal Action for Women. “You have to have a strong, coherent case to win.”

Adams helps asylum-seeking women to understand and present their cases to solicitors.

“It’s often even harder for women to find solicitors as their cases are often seen as less likely to succeed because gender-based violence isn’t officially recognised under the United Nations Refugee Convention,” said Adams. “The complexity of their cases is a big deterrent for solicitors.”

The overwhelming majority of asylum seekers are unable to afford adequate legal representation privately and are directed to legal aid firms that work with immigration cases. But according to Wilding’s analysis, nearly half the asylum seekers requesting representation from legal aid firms are not being taken on.

Milla Walker, an immigration solicitor at Luqmani Thompson & Partners, said she and her colleagues are having to turn away more asylum seekers than ever. “I used to look at new inquiries that came in and think about whether or not I could take them on,” she said. “I can’t even look at them now. I just immediately say no because the capacity just isn’t there.”

Walker has seen no increase in cash for legal aid in 17 years of practice. “If anything, there has been a decrease,” she said. “It’s systemic underfunding that has led to fewer and fewer providers.”

Her firm, like many others, has had to decrease the number of legal aid cases and increase the amount of private and corporate clients they take on to stay afloat. Other large legal aid providers are ceasing to offer legal aid altogether, leaving their previous clients to find legal aid representation elsewhere and overwhelming the few legal aid providers left.

Within the legal aid firms still representing asylum seekers, solicitors are working tirelessly on relatively small salaries, with many considering whether it is viable to continue working in the field.

“It’s a desperate situation,” said Walker. “It’s frustrating because the problem is so obvious. We have been warning about this for the last 15 years, and now it is at a crunch point where the system is collapsing. It’s not fit for purpose.”

If asylum seekers can’t find a good legal aid solicitor, they often fall prey to the promises of exploitative private solicitors.

“People find dodgy private solicitors who do really bad representation,” said Dikoff. “The solicitor will charge a low fee of something like a few thousand pounds, but they aren’t able to do a proper asylum claim for that price.”

The “dodgy” private solicitors produce documents for the Home Office, supposed to argue a client’s case, in which large chunks are simply copied and pasted from the UN Refugee Convention, with the addition of a quick summary of the client’s background. Applications like these are almost always declined.

“We see this all the time,” agreed Walker, who emphasised that bad representation comes at a cost to both a traumatised asylum seeker and the Home Office. “People will often come to us after they’ve been in the UK for years, having paid thousands to poor solicitors. We’re having to fix the mistakes under the legal aid scheme, and that actually increases the cost for the government because of the amount of work we are having to put in.”

If a person can’t afford to pay a private solicitor, they are left to either continue attempting to find a legal aid solicitor or to try to represent themselves in court. Walker recounted cases she has heard of in which an asylum seeker shows up to a tribunal to represent themselves, only to be told by the judge to go away and find proper representation – because without a solicitor or barrister presenting the necessary information they are unable to make a fair and informed decision.

Lack of good legal representation means lack of access to justice, and without good representation asylum seekers will almost definitely have negative decisions on their asylum applications.

“We’re talking about people who most of the time have faced persecution and trauma,” said Dikoff. “The standard should be that they have access to legal representation, that they have access to justice. We’re not even talking about whether they should be granted [refugee] status or not, because that is a different political question. The issue here is that all people should have access to justice and representation. Everyone should be given a chance to fight.”

A government spokesperson said all asylum seekers had “access” to legal aid, subject to means testing.

“Protecting the most vulnerable will always be our top priority,” they added, “and through our Nationality and Borders Act we will ensure a firm but fair system, so we can better support those in genuine need of asylum through safe and legal routes.”