‘Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.’ Article 47, Charter of Fundamental Rights of the European Union
The Green Paper on the Proposals for the Reform of Legal Aid in England and Wales published by the British Ministry of Justice includes plans to cut legal aid by £350 million by 2014/2015. Legal aid was founded in 1949 on the principle of the State’s obligation to ensure equal access to legal services for all. Since then there have been a number of reforms that have undermined the quantity and quality of services to those in need, such as the shift to the fixed fee system of payments introduced in 2007. The fixed fee system, the Refugee Council notes, set rates ‘at such a level that many experienced practitioners formed the view that it was no longer practical to adequately advise asylum seekers in the time allowed’, causing many legal aid providers to ‘simply withdraw from this area of work’. A survey conducted by the Law Centres Federation found that roughly one in five law centres lived under the constant threat of closure’, while almost half were in serious debt. Placed in this context, the current proposals will lead to a further erosion of legal aid. As Nick Rees of the Oxford Institute of Legal Practice (OXILP) told us recently ‘‘cuts’ really is the word’, and there is little doubt that asylum seekers will be disproportionately affected by these cuts.
Although legal aid for asylum claims will remain intact, four of the legal aid reforms proposed in the Green Paper are expected to directly hinder access to justice for asylum seekers in England and Wales. The first is the proposal to ‘remove all welfare-related issues from the scope of legal aid’, including asylum support. The second is the suggested introduction of a telephone line that will serve as a gateway to legal aid, preceding face-to-face interaction. The third is the blanket removal of legal aid for immigration cases, which, given the multiple causes of migration and movement will be particularly problematic for asylum seekers. The fourth main concern facing all legal aid firms working in the field of immigration and asylum is the proposed ten percent remuneration cut, which many think will lead law firms to give up publicly funded work altogether.
The reforms in the Green Paper will lead to what Hynes and Robins call the ‘desertification’ of legal aid. The Green Paper proposes cuts while simultaneously affirming the need for the British asylum system to ‘fulfil the domestic and international legal obligations’ according to Article 15 of the 2005 EU Asylum Procedures Directive. This tension reflects the paradox all Western states face: struggling to balance public demands for tighter border control with international legal obligations towards asylum seekers.
The potential wholesale removal of immigration-related cases from the scope of legal aid represents one way in which the impending reforms risk facilitating government circumvention of these obligations. The proposed introduction of the telephone gateway may have exceptionally grave consequences for asylum seekers. The Refugee Council is ‘extremely alarmed’ by this ‘dehumanizing’ proposal, given the severe and often traumatising circumstances under which asylum seekers may have fled, and which they should not be expected to describe to an operator over the phone. Furthermore, given the narrow definition of asylum derived from the 1951 Convention Relating to the Status of Refugees and its corresponding 1967 Protocol, telephone operators may easily (mis)interpret cases as falling under ‘immigration’ rather than ‘asylum’ and, consequently, outside the scope of legal aid. Language barriers and the complex nature of asylum law will make it extremely difficult to relate relevant events over the phone. As Steve Symonds, Legal Office of the Immigration Law Practitioners’ Association (ILPA), remarked, ‘the problem with the telephone gateway is that many people may not even get to the legal adviser, because what the operator has understood of what you’ve had to say suggests to him or her that you do not qualify for legal aid’.
Disconcertingly and somewhat ironically, the majority of coping strategies that legal aid providers are likely to adopt in order to survive and remain viable in light of the reforms are also likely to affect migrants adversely. One such coping strategy is ‘cherry-picking’, the mechanism by which solicitors select only certain cases - generally those most likely to be successful - to represent. As one asylum caseworker says, ‘if someone comes to us and wants to make a fresh claim for free legal help, we are only allowed to do that if we think we have a chance of winning that fresh claim’. Alternatively, legal aid firms may take on more complex and challenging cases whereby asylum claims are placed on a hierarchy of suffering wherein only the most traumatic cases are granted legal aid. Cherry-picking may also involve choosing cases based on nationality for instance. It is clear that if cherry-picking provides a possible coping strategy for legal aid providers, asylum seekers whose cases do not meet such criteria will have their access to justice severely restricted.
The shortage of publicly funded legal work outlined by the Green Paper may provide an opportunity for corporate law firms to increase their commitment to pro-bono work, thereby emulating the so-called ‘American model’, whereby firms commit to taking on a sizable number of pro-bono cases. Asylum seekers will increasingly be dependent on the good-will of solicitors who are willing to work for free. Strongly echoing Miriam Ticktin’s notion of ‘justice through benevolence’, relying on ad hoc pro-bono work to mitigate potential voids could result in legal services for asylum seekers that are ‘based on the exceptionality of an individual…and not about systematicity, regularity, or even equality’ Such a basis for an asylum system is neither viable nor desirable.
Pro-bono work may pose risks to legal services, but there are also serious risks in relying on volunteers, who, as part of David Cameron’s ‘Big Society’, are expected to fill any voids left by the reforms. Though non-lawyers providing legal advice in the field of asylum and immigration are required to be regulated by the Office of the Immigration Services Commissioner, they often lack necessary legal expertise. As we are reminded by Robert Egerton, writing on legal aid as early as 1946, ‘there is a great difference between work done as a favour by an unpaid volunteer and work done by a professional man employed for those duties’. In fact, Philip Turpin went so far as to suggest that a reliance on volunteers as an alternative to expert legal advice would be ‘very dangerous’. Against this backdrop, the ‘Big Society’, encouraging ‘voluntarism, philanthropy and social activism’, appears particularly ill-conceived within the domain of asylum work.
Individuals and charities have joined the Justice 4 All coalition to challenge the proposed reforms in a variety of ways. In the run up to the consultation the coalition was instrumental in mobilising the 5,000 responses from lawyers, members of the public and legal aid beneficiaries. 4,000 Valentines’ Day e-cards, proclaiming Justice 4 All supporters’ ‘love’ for legal aid, were sent to Kenneth Clark as part of the Love Legal Aid campaign. While these numbers may be encouraging, efforts to counter the proposals have been met with little support from the public. This can partly be explained by the prevailing (mis)perceptions of legal aid lawyers, who, as noted by George Monbiot in The Guardian, are often portrayed as ‘fat cat lawyers taking fortune from hard-pressed tax payers’. The second obstacle to challenging the reforms is the negative public discourse surrounding asylum seekers in the UK, who are often depicted as ‘bogus’, ‘criminals’, or even ‘terrorists’ - a trend well-documented in a recent report published by Article 19. These factors discourage widespread public support against the proposals, ensuring any safeguards for legal aid for asylum seekers and migrants are doubly disadvantaged.
Organisations supporting asylum seekers are investing time and resources into challenging the proposed reforms in the knowledge that that further ‘desertification’ of the legal aid system is unlikely to be easily, if at all, reversed in the future. While some experts such as Nick Rees, consider these proposals ‘the next logical step’ in a governmental ‘chizzling-away’ of legal aid, others such as Philip Turpin, perceive the profound nature of the reforms as ‘the dismantling of civil society’ and, as such, ‘the elimination of government opposition’. Ultimately, however, it is the human cost that must be emphasised. As noted by an Oxford-based practitioner, ‘everything is being cut for everybody, but when it’s about life and death, it’s pretty serious'.
With special thanks to Barbara Schuler for her contribution to this article