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Jo Wilding finds continuing crisis in legal aid provision for asylum seekers is leaving half of main applicants without a legal representative


Sector can only accommodate around half of the demand from new applicants in 2021-22

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In a new blog post published on Friday by the SOAS Refugee Law Initiative (RLI), Dr Jo Wilding gave an update on the latest situation in the crisis in legally aided advice and representation for asylum seekers.

JusticeImage credit: UK GovernmentWilding of the University of Sussex (and well-known to many readers of EIN from her days at Garden Court Chambers) has written extensively about the problems in legal aid provision for immigration and asylum cases (see, for example, our earlier articles from May 2022 and September 2021).

In her latest blog post, Wilding finds the crisis in the sector has now significantly worsened and there is "unrepresentation on a massive scale".

She wrote: "In 2020-21, I calculated that there was a deficit of at least 6,000 between the number of new asylum applications and the number of new immigration and asylum legal aid matters opened … The position in 2021-22 is much worse."

Based on a Freedom of Information (FOI) response received last month from the Ministry of Justice (MoJ), Jo Wilding estimates that the deficit between provision and need has now reached at least 25,000. This would mean that nearly half of the main applicants who claimed asylum in the year ending June 2022 did not have a legal aid representative.

Wilding said: "[C]lients are losing representation, either because of firms withdrawing from legal aid altogether or because their representatives will not do appeals work, and having to find new representation in a 'market' which already can accommodate only half of the demand from new applicants."

She notes that one of the largest immigration legal aid firms in England and Wales has now informed clients it will not take on any new appeals work. A number of other firms are doing the same or are closing, with the blog post highlighting particular problems in Yorkshire, Wales and East Anglia. On the latter, Wilding says that while some asylum seekers are being transferred from Manston to Norwich, the closest legal aid provision is 100 miles away in Luton. There is no legal advice available in the counties of Norfolk or Suffolk, nor Essex.

In response to Wilding's bog post, Luqmani Thompson solicitors posted on Twitter: "We have never had to turn away so many people, many of whom with good legal cases and clearly in need. … At the moment we simply can't afford to take more of them on under current legal aid contract terms."

The widely reported problems with low levels of Home Office decision-making is adding to the legal aid crisis by reducing demand for appeals. Jo Wilding notes that only 14,706 initial decisions were made on asylum applications in the year ending June 2022, and 76% of those received a positive decision at first instance.

Jon Featonby, currently at the British Red Cross before moving to the Refugee Council, wrote an in-depth piece analysing the problems with Home Office decision-making on Free Movement last week. Following up on Twitter, he highlighted the difference in the number of decisions made in the UK against comparable European countries: "For the last year we have stats, the Home Office made an average of 49.4 a day. By comparison, Germany made 428, France 368, Spain 184, Italy 140."

Prime Minister Rishi Sunak said during Prime Minister's Questions in the House of Commons last week that not enough asylum claims are being processed. Sunak added that more decision-makers were being brought in to tackle the problem, stating: "We have increased the number of processing officials by 80%, and we are putting in an extra 500 by next March."

During the Conservative leadership campaign in July, Sunak said he wanted to tighten the statutory definition of who qualifies for asylum in the UK, bringing the test for protection in line with the Refugee Convention rather than the European Convention on Human Rights.

According to the European Union Agency for Asylum's annual asylum trends report for 2021, the overall recognition rate for first instance decisions on asylum applications across the 27 EU countries plus Norway and Switzerland was 34% (including subsidiary protection). In contrast, the Home Office's statistics for the same period show that 72% of initial decisions were grants of asylum or another form of protection.

Sky News reported yesterday that the Home Office has announced that an asylum casework pilot trialled by staff in Leeds between July and September 2022 will now be rolled out nationwide to increase the number of decisions being made. The pilot saw a doubling in the average number of claims being processed.

Home Secretary Suella Braverman was quoted as saying: "We still have a long way to go but these steps show our commitment to tackling the asylum backlog. Processing claims more quickly will help remove those who illegally come here from safe countries, while also ensuring those in genuine need receive our protection."

Meanwhile, the Observer had an exclusive report on Saturday on the new decision-makers being hired by the Home Office to tackle the backlog. According to the Observer, they need no prior experience or knowledge of the asylum system, and many of them are placed on rolling, temporary contracts, usually for three months.

A Home Office whistleblower (said to be someone with nearly 20 years of experience in decision-making) spoke to the Observer and said: "They're getting in far too many inexperienced people, with no understanding of the asylum system, and they just don't have the support they need so they leave. … It's a total disaster. They don't know what they're doing."

The Observer journalist added on Twitter that the whistleblower told her: "It feels like a vicious, never-ending cycle. You recruit, spend six months getting them up to speed and then they leave. We're chasing our tails constantly and we will be until we get the right people in, who can do the job and stick with it."

Training for the new recruits was also reported to be inadequate, with one current caseworker telling the Observer: "The training is literally you will go and sit with another member of staff and watch them do it and then they will give you a try at doing a case while they watch you. Once you have shown them a couple of times, you are pretty much just left to your own devices."

Another Home Office staff member told the Observer that decision-making was a very highly skilled job but it hasn't been given the respect it deserves. Rob McNeil of the Migration Observatory at the University of Oxford said it was one of the hardest jobs in immigration. "These are life and death decisions that require skill, training and experience to make. Getting the decisions wrong has human costs for applicants and financial costs for the government," McNeil explained.

A Home Office spokesperson said the claims being made in the Observer's article were baseless. They commented: "All recruits must meet minimum civil service recruitment standards and are supported with extensive training and support by senior trainers and technical experts. Our processes are underpinned by a robust framework of safeguards and quality checks, ensuring that claims are properly considered, decisions are sound, and that protection is granted to those who genuinely need it."