A recent report by Devon & Cornwall Law Centre brings into question the system of funding legal aid for asylum seekers and the behaviour and practices of the both the Tribunal Service and legal representatives.
The report, which details the findings of the Asylum Appellate Project, shows how in 59 of 75 cases referred to it, the project successfully appealed decisions to withdraw legal aid after the Home Office had refused asylum. Thirty percent of these people went on to win their appeals and receive some form of protection from the state.
For asylum applicants, securing legal representation is of vital importance to winning their case. As the report notes:
‘Compared with a 23% success rate for all appellants (represented and unrepresented) at appeal, appellants with representation have a 53% success rate.’
Nevertheless many people are refused legal aid—and effectively denied representation—at the appeal stage.
Legal aid for asylum seekers is split into two stages: Legal Help and Controlled Legal Representation (CLR). For each stage a fixed fee is paid by the Legal Services Commission to the representative. The fee for Legal Help covers work conducted up to the acceptance or refusal of a case. The fee for CLR is paid for work undertaken in representing an applicant at appeal.
Legal aid suppliers can only grant public funding when a case satisfies certain conditions, one of which is whether it passes the ‘merit test’. Public funding for appeals can be granted if, in the opinion of the legal representative, the case has a 50% chance of success at tribunal.
The Legal Service Commission enforces this rule upon legal aid providers through performance indicators that require them to achieve at least a 35% success rate in their asylum appeals. The findings of the Asylum Appellate Project suggest that too many asylum seekers are being refused legal aid for CLR.
Given the poverty of UKBA decision-making (in quarter one of 2010/11 27% of asylum appeals before the tribunal were granted) the opportunity to appeal Home Office decisions is a vital one. For many people it can be the difference between life and death.
Everyone has the right to appeal a refusal of legal aid to the Independent Funding Adjudicator. However, the project’s findings show that only 30% of appeals to the made by unrepresented asylum applicants were granted, compared to the 79% success rate for appeals prepared by the project’s legal caseworker.
The report’s findings are critical of the Tribunal Service which all-too-often refuses to adjourn hearings to allow sufficient time for asylum seekers to find new representation, or for their representative to prepare their case.
Read the full report, which includes a number of very interesting case studies.