Immigration law: funding in crisis?

It is a truism government policy changes in areas like crime and immigration usually have a knock-on effect on legal aid lawyers. The question is whether ministers do something about it, beyond warm words recognising the effort that lawyers put in to keep the system moving. Positively, the signs from the Ministry of Justice (MoJ) in recent times are that it does appreciate the need to put some money where its mouth is.

In immigration and asylum work, for example, the ‘hostile environment’ policy and regular changes to the rules – not to ignore the impact of Brexit – have added to the workload of already stretched practitioners operating under fees that have changed little in 15 years.

So the recently closed MoJ consultation on ‘new fees for new services’ in immigration and asylum work has to be welcome – anything that will start to close the gap would be. But the reality is  the proposed fee increases will not fix longstanding issues in the system caused by years of underfunding. And this is before we take into account the rising cost of living, with the amounts put forward not an accurate reflection of the current rate of inflation.

The cost of caring

Around 500 CILEX members work in immigration law and they tell us these new fees will still not cover the work they have to do when preparing cases or appeals. The consultation recognises, for example, that the system of online appeals to the First-tier Tribunal – introduced in 2019 – requires significantly more upfront work by lawyers, but this is not adequately reflected by the new fee.

Many respondents to an earlier call for evidence by the MoJ said fixed fees encouraged representatives to work within the fee, rather than do all that was required to prepare the case, and raised concerns about the financial viability of firms, the sustainability of the market and access to justice. It’s a case of ‘you pay peanuts, you get people desperately trying to juggle their professional responsibilities with the viability of their businesses’.

These fears were borne out by the comments of CILEX members. One said: “I've seen far too many cases poorly prepared because they are trying to bash through a complex case as quickly as possibly because the money isn't worth it. This means that appellants are being let down by negligent representatives.”

Our members believe the guideline hourly rates (GHR) used in the civil courts should be the starting point to calculate legal aid fees. Our response to the consultation said: “Members felt rates should reflect work carried out and an average of GHR would help to do that. CILEX is inclined to agree with such a suggestion, providing that GHRs are regularly kept under monitoring and adjusted to reflect the current economic climate.” That last point is one that goes for any fee levels set by the state – many fixed fees in personal injury cases, for example, have not been increased since 2013.

Accreditation

In the same way the MoJ has recognised unnecessary barriers put in front of CILEX’s criminal practitioners, we also call for it to examine the impact of accreditation schemes within immigration law that can exclude our members.

While these schemes differ in their final delivery, the principle of alternative routes or an analysis of burden of cost should be undertaken by government to fully understand if such a scheme is appropriately balanced.

CILEX believes accreditation schemes need to reflect the equivalence of different forms of legal training. This inevitably has the potential impact of driving healthy market incentives by offering multiple recognised and tailored schemes. It will also further help prevent monopolisation of products available, setting an equal industry standard between legal service providers.

Put simply, CILEX lawyers are fully qualified specialists in their field and the system needs to recognise this.

The response also highlights the need to monitor the impact of the reforms to ensure they deliver for clients, as well as the lawyers they need to support them.

Conclusion 

The MoJ’s stated ambition to ensure legal aid providers are paid an appropriate level of remuneration is good news but words need to be backed by action. The reality is it has to go further and faster to achieve this.

Immigration and asylum clients are often among the most vulnerable lawyers deal with and possibly the least politically popular. But ministers need to recognise what years of underfunding have done to the system and put justice ahead of headlines to ensure these people have equality of arms when facing the state.

Matthew Huggett is president of CILEX and partner with Carbon Law Partners: cilex.org.uk; carbonlawpartners.com