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Academic report finds legal aid system is inadequate for modern slavery cases and places an unmaintainable burden on practitioners

Summary:

Report looks at access to legal advice and representation for survivors of modern slavery

Date of Publication:
26 May 2021

Academic report finds legal aid system is inadequate for modern slavery cases and places an unmaintainable burden on practitioners

26 May 2021
EIN

A comprehensive and important new report on access to legal advice and representation for survivors of modern slavery was published last week by the Modern Slavery and Human Rights Policy and Evidence Centre (the Centre) in collaboration with the Anti Trafficking and Labour Exploitation Unit (ATLEU) and the Rights Lab at the University of Nottingham.

The Centre is a consortium of six academic organisations led by the Bingham Centre for the Rule of Law.

CoverThe 47-page report can be downloaded here. It was authored by Dr Samantha Currie and Dr Matthew Young of the University of Liverpool.

The authors explained: "This research sought to interrogate identified deficiencies in the provision of legal advice and representation for survivors of modern slavery, explore the causes and consequences of these failures, situate access to legal services within the context of the UK's international obligations, and investigate the impact of representation by qualified legal practitioners on outcomes for victims. The research focussed particularly on access to legal aid in England in respect of survivors' immigration status."

For the report, the Centre interviewed sixteen solicitors and two barristers about their experiences of advising and representing clients who had experienced trafficking, including the impact of funding on the legal support provided, the nature of the cases that they work on, and consequences of accessing legal advice for their clients.

In addition, twelve interviews were conducted with support workers about the processes by which survivors of modern slavery access legal advice, the support they need to overcome barriers to this and the outcomes.

The report finds that there are significant barriers preventing survivors of modern slavery from accessing legal aid, including uncertainty about the extent of survivors' entitlement.

While modern slavery cases are widely regarded as being particularly complex, the Centre found that the funding structure for immigration legal aid discourages lawyers from taking such cases on.

The report stated: "The research found a number of significant challenges in relation to survivors' access to legal aid, including uncertainty as to when legal aid will be available and for which areas of law. Crucially, the research underscores the inadequacies of the funding structures for facilitating the delivery of good quality immigration legal advice and representation to survivors. The limited nature of fixed fees and risks associated with escape fees to cases involving trafficking/modern slavery conspire to disincentivise the taking on of such cases at all, or, encourage restricting the level of work carried out on a case. It is also clear that some dedicated legal practitioners are carrying out legal work on behalf of survivors without receiving adequate payment, in their own time, and at personal cost to their own wellbeing. They are also spending time rectifying poor-quality legal work carried out on survivors' cases by other legal practitioners."

It continued: "The current legal aid fee structure undermines the importance of the modern slavery experience and the long-term trauma of survivors, limiting the potential for survivors to access justice. The legal aid model is unsustainable in the long-term, given the disjunction between demand and supply of immigration legal advice for survivors of modern slavery. The current system places an unmaintainable burden on individual practitioners with known expertise, particularly in geographical areas where there are insufficient numbers of experienced legal aid practitioners to meet the demand. The payment structure is contributing to the existence of legal advice deserts and droughts for survivors of modern slavery."

One solicitor told the Centre: "I used to take on trafficking, because I really love trafficking cases, but because of what I'm talking about, it's just put me off, I just don't want to do trafficking cases anymore and I find it a real pity, because I do have the expertise but I just haven't got the capacity to deal with the funding, the Legal Aid Agency, the Competent Authority, and everything that comes with it."

Victoria Marks of ATLEU noted that the current legal aid system simply fails to enable lawyers to provide the quality of legal support that survivors need.

"As a result, fewer and fewer lawyers are taking these cases which makes it even harder for vulnerable survivors to navigate our complicated legal systems so that they can access protection and rebuild their lives," Marks added.

The Centre's report makes nine recommendations, including that immigration and asylum cases funded by legal aid for potential and confirmed victims of modern slavery should be paid on an hourly rate, in line with Unaccompanied Asylum Seeking Children cases.