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Young Legal Aid Lawyers finds victims of trafficking are denied justice due to market failure in the immigration and asylum legal aid sector

Summary:

Report says victims of trafficking are incurring debt and returning to exploitation in order to pay for legal representation

Date of Publication:
22 June 2020

Young Legal Aid Lawyers finds victims of trafficking are denied justice due to market failure in the immigration and asylum legal aid sector

22 June 2020
EIN

Young Legal Aid Lawyers (YLAL) today published a report examining the state of access to asylum and immigration legally aided advice for victims of trafficking.

CoverYou can read the 17-page report here.

The report was informed by a survey of 34 individuals from over 18 organisations working in the anti-slavery support sector.

Some highlights from the survey include:

  • Respondents were clear that access to legal aid for asylum and immigration matters is essential for victims of trafficking to recover from their trauma. As one respondent put it, "it is everything."
  • Many respondents noted that regularising immigration status is a prerequisite to accessing key support needed for their clients' recoveries.
  • Respondents observed that securing immigration status is a complex process and that victims of trafficking face additional barriers to navigating the asylum and immigration systems.
  • Because of their clients' vulnerabilities and complex histories, respondents emphasised the importance of high-quality and consistent legal advice and representation from an early stage.
  • Many respondents were clear that legally aided asylum and immigration advice was the only way that their clients could access the legal advice and representation that they need.

YLAL found, however, that 70.6% of respondents stated that it was 'impossible' (2.9%), 'extremely difficult' (20.6%) or 'difficult' (47.1%) to find legal aid representation for victims of trafficking.

The report added: "Out of those that responded that it was 'fairly easy' (8.8%) or 'moderate' (20.6%) in difficulty to find a legally aided immigration representative, 70% work in Greater London or the South East of England, indicating a greater availability of legal aid provision in those areas."

One respondent said: "There are areas within England and Wales (we operate in both areas) where finding representation is very difficult, as there either aren't any legally aided ones or they cannot take another case due to already being inundated with cases. Additionally, not everyone has an experience in assisting victims of human trafficking / modern slavery."

The majority of respondents stated that on average it took 1-2 months to refer a client for legally aided immigration advice. Out of the 26.5% that said it takes under one month, 66% of respondents were from the Greater London and South East areas, again indicating greater availability in these areas.

YLAL concludes that the evidence provided by respondents demonstrates that there is a serious market failure in the provision of asylum and immigration legally aided advice for victims of trafficking. It means that victims of trafficking are either unable to access the specialist legal advice and representation that they need or they are forced to go to a private provider.

As a result, YLAL says victims of trafficking are incurring debt and returning to exploitation in order to pay for a private immigration representation due to legal aid providers being unavailable.

"They have borrowed money which has then put them into or back into debt and debt bondage," one respondent was quoted as saying.

The report also considers the added negative impact of the recent Civil Legal Aid (Remuneration) (Amendment) (Coronavirus) Regulations 2020.

As we reported last month on EIN, members of the Immigration Bar have said the new fixed fee introduced by the Regulations is inadequate and they have refused to accept instructions to prepare appeal skeleton arguments under it.

The YLAL report states: "The changes exacerbate the market failure in the provision of asylum and immigration legal aid. Firms are now less likely to do legally aided immigration cases that are complex and demand more time. The new regulations therefore have a disproportionate impact on victims of trafficking as their cases are often highly complex. Survivors face increased risk that they will be unable to obtain legally aided representation, and that they will therefore be prevented from accessing the representation that they desperately need."

In the report's recommendations, YLAL calls on the Legal Aid Minister to:

• Immediately withdraw the Civil Legal Aid (Remuneration) (Amendment) (Coronavirus) Regulations 2020.

• Consult the asylum and immigration legal aid sector ahead of any further proposed changes.

• Acknowledge the government's specific legal obligations to ensure access to legally aided asylum and immigration representation for victims of trafficking, inter alia under ECAT and the EU Trafficking Directive.

• Acknowledge the market failure in the provision of asylum and immigration legal aid.

• Work with the Treasury to ensure that the legal aid sector is sufficiently funded to address the market failure and the government's ongoing breach of its duties to victims of trafficking.