Smooth path to the gallows
By Tom Wall
A trafficked woman working in the sex trade is told she will not receive legal aid for her asylum claim, so she has no choice but to go on working as a prostitute even though it will jeopardise her case. Hers is just one of the stories highlighted in a new report, from the charities Asylum Aid and Bail for Immigration Detainees - and which is a shocking critique of recent changes to our legal aid system.
Last year the government capped funding for asylum and immigration work and stopped funding representation at Home Office interviews. Ministers said lawyers were doing unnecessary and substandard work; Tony Blair labelled it a gravy train. Now the system is in crisis: solicitors are abandoning the field, leaving asylum-seekers to represent themselves or work illegally to pay for legal advice.
Zoe Stevens started working full-time as an immigration solicitor ten years ago. In 2000 she set up her own practice, Avocets Solicitors, which had a high success rate for its clients. When the extent of the government's plans became clear, she decided to close it: "The implications were that we would have to change the way we prepared our cases; [we] felt we would be unable to prepare them to the standard we wanted. In effect, we were being asked to slash, by half, the time we spent on cases."
According to the Immigration Law Practitioners' Association, a number of other highly regarded firms, including Winstanley-Burgess, have closed, while others have reduced their public work in order to survive.
Paradoxically, the limits - five hours for initial hearings and ten for appeals - punish conscientious solicitors by making it hard to prepare cases to a high standard. Other solicitors are encouraging asylum-seekers to fund their own cases regardless of their circumstances.
"Complicated cases are referred to me that I am unfortunately unable to take, as it is impossible for me to provide a conveyor-belt service," says Arona Sarwar, who specialises in cases involving refugee children. "Disputed minors need to be referred to experts, and often we have to liaise with social services panel advisers and foster carers."
Solicitors may apply to the Legal Services Commission for more time but the process is bureaucratic and costly. Moreover, the commission often merely repeats the reasons given by the Home Office when turning down legal-aid funding requests. Zoe Stevens remembers an HIV-positive woman from Zimbabwe who wanted to stay in the UK for medical treatment. The Home Office said she could afford treatment back home because she owned a business; she said she had sold it to pay for the air fare. The commission repeated the Home Office line and turned her down. "But it is for the judge to decide whether to believe my client or the Home Office," argues Stevens.
This year the British government made legal-aid funding for appeals retrospective and dependent on merit, which means that lawyers must now decide at an early stage whether an appeal has a chance. Critics, including the Commons constitutional affairs committee and the Law Society, say this ruling in effect curtails the right of appeal because solicitors are unable to take up marginal cases without exposing themselves to commercial risk.
In practice, the current situation is little different from the discredited "ouster clause", which would have removed the right to appeal to superior courts. The government dropped this from the Asylum Act after fierce criticism in the House of Lords. Memorably, the Lord Chief Justice, Lord Woolf, asked: "What is the use of the courts if you cannot access them?"
The Department for Constitutional Affairs says changes were needed because the old system was inefficient and expensive. A spokeswoman told me that, in the past, two-thirds of cases failed at the first stage, and the legal-aid budget had grown from £87m in 2000-2001 to £203m in 2003-2004. Provisional figures for this year show it has fallen to £164m.
But at what cost? The London Detainee Support Group made 46 successful referrals to immigration solicitors in 2004, before the changes, but has made only two since they came in. It was unable to refer a Ugandan soldier who had been imprisoned and tortured. The group tried 15 reputable solicitors but none was able to take on his case. Eventually the soldier, who faced probable execution on treason charges, was deported.
A trafficked woman working in the sex trade is told she will not receive legal aid for her asylum claim, so she has no choice but to go on working as a prostitute even though it will jeopardise her case. Hers is just one of the stories highlighted in a new report, from the charities Asylum Aid and Bail for Immigration Detainees - and which is a shocking critique of recent changes to our legal aid system.
Last year the government capped funding for asylum and immigration work and stopped funding representation at Home Office interviews. Ministers said lawyers were doing unnecessary and substandard work; Tony Blair labelled it a gravy train. Now the system is in crisis: solicitors are abandoning the field, leaving asylum-seekers to represent themselves or work illegally to pay for legal advice.
Zoe Stevens started working full-time as an immigration solicitor ten years ago. In 2000 she set up her own practice, Avocets Solicitors, which had a high success rate for its clients. When the extent of the government's plans became clear, she decided to close it: "The implications were that we would have to change the way we prepared our cases; [we] felt we would be unable to prepare them to the standard we wanted. In effect, we were being asked to slash, by half, the time we spent on cases."
According to the Immigration Law Practitioners' Association, a number of other highly regarded firms, including Winstanley-Burgess, have closed, while others have reduced their public work in order to survive.
Paradoxically, the limits - five hours for initial hearings and ten for appeals - punish conscientious solicitors by making it hard to prepare cases to a high standard. Other solicitors are encouraging asylum-seekers to fund their own cases regardless of their circumstances.
"Complicated cases are referred to me that I am unfortunately unable to take, as it is impossible for me to provide a conveyor-belt service," says Arona Sarwar, who specialises in cases involving refugee children. "Disputed minors need to be referred to experts, and often we have to liaise with social services panel advisers and foster carers."
Solicitors may apply to the Legal Services Commission for more time but the process is bureaucratic and costly. Moreover, the commission often merely repeats the reasons given by the Home Office when turning down legal-aid funding requests. Zoe Stevens remembers an HIV-positive woman from Zimbabwe who wanted to stay in the UK for medical treatment. The Home Office said she could afford treatment back home because she owned a business; she said she had sold it to pay for the air fare. The commission repeated the Home Office line and turned her down. "But it is for the judge to decide whether to believe my client or the Home Office," argues Stevens.
This year the British government made legal-aid funding for appeals retrospective and dependent on merit, which means that lawyers must now decide at an early stage whether an appeal has a chance. Critics, including the Commons constitutional affairs committee and the Law Society, say this ruling in effect curtails the right of appeal because solicitors are unable to take up marginal cases without exposing themselves to commercial risk.
In practice, the current situation is little different from the discredited "ouster clause", which would have removed the right to appeal to superior courts. The government dropped this from the Asylum Act after fierce criticism in the House of Lords. Memorably, the Lord Chief Justice, Lord Woolf, asked: "What is the use of the courts if you cannot access them?"
The Department for Constitutional Affairs says changes were needed because the old system was inefficient and expensive. A spokeswoman told me that, in the past, two-thirds of cases failed at the first stage, and the legal-aid budget had grown from £87m in 2000-2001 to £203m in 2003-2004. Provisional figures for this year show it has fallen to £164m.
But at what cost? The London Detainee Support Group made 46 successful referrals to immigration solicitors in 2004, before the changes, but has made only two since they came in. It was unable to refer a Ugandan soldier who had been imprisoned and tortured. The group tried 15 reputable solicitors but none was able to take on his case. Eventually the soldier, who faced probable execution on treason charges, was deported.