Access to Justice (ATJ) Project The Lawyer Awards 2013 Ethical Initiative of the Year
An external evaluation of the Access to Justice Project
Ceri Hutton and Sue Lukes External Evaluators
CONTENTS 1. Introduction .................................................................................................... 4 2. Outcomes ....................................................................................................... 5 2.1 Impact on clients ................................................................................................................................................... 4 2.1.a. Clients gained CLR, and some gained legal support ..................................................................................... 4 2.1.b. Clients gained asylum .................................................................................................................................. 5 2.1.c. Gaining understanding and some closure .................................................................................................... 5 2.2.d. Improved mental and physical health.......................................................................................................... 6 2.2.e. Rescuing from poor support and pointing towards options ........................................................................ 6 2.2. Benefits for those working in the field................................................................................................................. 7 2.3. Impact on Refugee Action .................................................................................................................................... 7 2.3.a. Learning gained on what is happening round access to justice, particularly in London ............................... 7 2.3.b. It is establishing and building Refugee Action’s profile and reputation ....................................................... 8 2.3.c. Positive impact on morale within the organisation ...................................................................................... 9 2.3.d. Introduced learning, skills and confidence ................................................................................................... 9 2.4 Policy insights and gains ....................................................................................................................................... 9
3. Access to Justice: the broader picture ............................................................ 11 3.1. Current context for asylum seekers ................................................................................................................... 11 3.1.a Asylum applications .................................................................................................................................... 11 3.1.b. Asylum application process........................................................................................................................ 12 3.1.c. Legal advice and representation for asylum seekers ................................................................................. 12 3.2. Key issues illustrated by the Access to Justice project....................................................................................... 13 3.2.a. A high proportion of cases reviewed by the project got CLR ..................................................................... 13 3.2.b. Some solicitors refuse CLR either without access to the full facts or because they do not understand the merits of a case ......................................................................................................................................................... 14 3.2.c. Some of those refused CLR have gone on to win their appeals ................................................................. 14 3.2.d. Poor quality advice and representation by some solicitors is an ongoing problem .................................. 14 3.2.e. Insufficient quality control and what this may be leading to ..................................................................... 14 3.2.f. Initial and continuing advice is crucial for asylum claims ........................................................................... 15 3.2.g. Gaining trust of asylum seekers through legal support can lead to other gains ........................................ 16 3.2.g. The Access to Justice project has been a useful monitor ........................................................................... 16
Appendix 1 – List of those interviewed ................................................................ 17 Appendix 2: Case studies of asylum seekers......................................................... 18 CASE STUDY 1 ........................................................................................................................................................... 18 CASE STUDY 2 ........................................................................................................................................................... 18 CASE STUDY 3 ........................................................................................................................................................... 19 CASE STUDY 4 ........................................................................................................................................................... 19 CASE STUDY 5 ........................................................................................................................................................... 20 CASE STUDY 6 ........................................................................................................................................................... 21 CASE STUDY 7 ........................................................................................................................................................... 21 CASE STUDY 8 ........................................................................................................................................................... 22 CASE STUDY 9 ........................................................................................................................................................... 22
Appendix 3: Case histories of ‘successful’ asylum seekers .................................... 25
Acknowledgements The authors would like to thank all those who took time to speak with us about the Access to Justice project: Refugee Actionâ€™s clients, staff and a number of external stakeholders. We would also like to thank those who helped us greatly by arranging interviews with clients in Liverpool, Manchester, Bristol and London. People gave generously of their time and all contributions were extremely helpful. In addition, Refugee Action and the authors would like to thank those who funded this project and its evaluation. In particular, they would like to thank the Sigrid Rausing Trust, Trust for London and LankellyChase Foundation as well as Mark and Mo Constantine for their great generosity in supporting the project.
The Access to Justice project was a twelve month project set up and run by Refugee Action from April 2012 to March 2013. Funded by the Sigrid Rausing Trust, Trust for London, the LankellyChase Foundation and from individual donations and Refugee Action’s reserves, the project aimed to help asylum seekers refused Controlled Legal Representation (CLR) to challenge the refusal and, if successful, to find new legal representatives. The fundamental premise of the Access to Justice project was that many asylum seekers are struggling with inadequate or non-existent legal advice. It focussed on a specific point in an asylum seeker’s legal ‘journey’: the point at which they had had their initial claim for asylum refused, and were then, for whatever reason, denied legal aid (CLR) which would otherwise have assisted them to appeal that refusal. The Access to Justice project sought to find asylum seekers in three locations in the UK (London, North West, Bristol) and help those who had been both refused asylum by the UKBA and CLR by their previous legal representatives to appeal that funding position and, if the appeal was successful, to try and find a lawyer to pick up their case. Findings from the Asylum Appellate Project at Devon Law Centre, the project that Access to Justice built on, suggested that substantial numbers (79% of a 75 client sample = 59 clients) had been wrongly refused CLR. This project had lasted nearly three years (2007-2010) and won the Law Centres Innovation Award in 2009. The lead worker at Devon Law Centre had subsequently come to work at Refugee Action and was responsible for the set up and then the legal oversight and co-ordination of Refugee Action’s Access to Justice project which sought to roll out the Devon and Cornwall project onto a national stage. The Access to Justice Project won the Lawyer Awards 2013 Ethical Initiative of the Year.
This section details the achievements of the project for a range of external and internal stakeholders. In addition to the summaries provided below, there are also a range of case studies at Appendix 2 of this report which illustrate the cases dealt with and tell of the benefits of the project in clients’ own words and, at Appendix 3, the case histories of those clients who so far, with the assistance of the project, have gone on to be granted asylum on appeal. The Final Report (due 2014) will hopefully bring that figure up-to-date and include all remaining case histories.
Impact on clients
Clients gained CLR, and some gained legal support
The project saw a total of 44 clients across the three regions, of which twenty eight (64% of total) were granted CLR following appeal. Some of these were then able to obtain legal representation which “makes a huge difference. In particular, attending court with no representation is something which is hugely daunting for them. If they do they don’t understand anything, they are refused asylum and that’s a massive panic moment”. The impact of this on clients was clear from interviews. Several of them spoke about this as being given a ‘second chance’, and the point of being reaccepted into the system was clearly remembered. “With X, I remember it was on the Wednesday I got a refusal, she listened to me the Monday afterwards. That was 27 July at 10 o’clock. She was incredible. They put everything I had from Croydon, everything from Liverpool, everything from the Home Office into their letter.” Though in some cases the appeal against CLR refusal happened too late to enable new legal representatives to prepare the appeal, some were able as a result of the project’s intervention to get a lawyer to accompany them to their appeal which clearly made the world of difference.
“Yesterday I went to the court with the barrister. There are arguments with the Home Office about the adjournment and so on. When I went on my own before the judge was very, very rude to me – he shouted at me, he talked to me very badly. I thought it was the end of the world. But this time round, my barrister was very good, he read out the transcript of what had been said last time, he told them that the judge last time did not check my evidences, and now they are going to check this. This helped me so much – 100%” (Female AS) “It was terrible before I got to Access to Justice. I volunteer to say something about them now whenever I can. If not for them I would be at home and killed for nothing. They evaluated it all and did what my first lawyer did not do - they relieved me from the stress and the pain. ….[My first lawyers] have no passion they accepted that what the Home Office said was true. They said you cannot win so we cannot continue the case but they did it without going through any of the papers or my story. When I went to court they just left me to defend my life. I tried to rectify stuff but they did not listen, I was in such a panic and now I have someone with me who understands me and it relieves me.” (Male AS) This obviously gives clients a better chance of success, and minimally gives them the chance of a fair hearing. Lawyers picking up these cases noted to us that what they could do was sometimes fairly minimal, but that even minimal support and basic good practice, such as translating documents, could make all the difference as to whether the person was given a fair hearing or not. Two quotes from lawyers illustrate this: “There was a case referred yesterday by the Access to Justice project. It is pretty iffy actually, but he got his CLR and that’s the big thing. And with that, a chance to be represented in the court, he had a proper statement, he had a chance to get proper evidence, be referred to medical and legal reports. Simple stuff, but vital.”
Clients gained asylum
For three clients, the impact of the Access to Justice has been profound and they have gained status. The impact this has on the life of the individual and their family is incalculable. “I got [status] as a result of Refugee Action’s intervention….. it was only with their help that I managed to represent my case. He understood, the judge….. [The RA caseworker] got a specialist, she got evidence for me…… when you have been everywhere and everyone says ‘That’s false, that’s false, that’s false’, to be listened to in the end and to have the documents to prove my case is just formidable. …. Now I am studying, and I am looking for work” (Male AS) In addition to those three clients, the UKBA has withdrawn its original decision for another, and there are still a number of clients who are waiting on an outcome of their appeal. There is at least a possibility therefore of a few more people gaining long term status, protection and a chance to rebuild their lives. This is a huge achievement in its own right, aside from what it shows about the failures of a system which had found their cases to be lacking merit even for legal aid to be granted at appeal.
Gaining understanding and some closure
Even though most clients are not successful following a take up of their case, the fact that people have sat down with them, explained the system and bothered to come to a reasonably full understanding of their situation has been a relief, even when they are told that it is highly unlikely that they will be granted asylum. In this way it has echoes of the Key Worker Project, and some of the similar benefits for clients. “For some clients, there is an increase in understanding and sort of acceptance of their situation. I think like it’s a bit like the previous Key Worker pilot. We are making sure that people understand the process they are going through in terms of the legal side of it, and why their case has been refused. I have tried to focus on that. With almost all clients, I have said to them “I don’t think you are going to be granted asylum.” That’s not great, but because they trust you and because they know you are doing your best, they can properly hear it. With some clients, you can see it dawning on them that they may actually not get asylum. A lot of clients do get upset, yes
– but in terms of my role, they know that I am there to help them. I have not had anybody getting upset with me, but just about their situation.” “For me a major benefit of this project has been that 40+ people have got the opportunity, for many of them the first opportunity, to tell their story in detail to somebody who will listen. The process of going through the UKBA refusal letter with the clients and talking through their case is, time and time again clients tell us, the first time somebody sits down and listens properly to the reasons why they are claiming asylum. Now obviously they will have done that with UKBA but in a much more confrontational and frightening setting. And some of them will have done it with the solicitor, but not all. So that’s a huge benefit, and my experience is that even if they are not successful they are hugely grateful for somebody to listen to their story and represent it to the best of the story’s ability.” Clients spoke about a sense of gaining a calmer understanding of their situation, even when they are refused. Gaining this sense of understanding is important not only to feel respected but also to recognise what the real options are for the future. “I was so stressed I did not know what to do, they were sending me back I felt I was going mad. [The RA caseworker] came and calmed me down and I talked and stated my case, and the appeal was now urgent and my lawyer would not help. [the RA caseworker] tried with them, he wrote everything down, he went over the home office interview all over again. I was under a lot of pressure in that interview. [The RA caseworker] was able to rectify it all, and sent it to legal aid and I got a lawyer from him who is very good…. [Refugee Action] relieved me from the stress and the pain.” “At two points lawyers refused me. But Refugee Action was the only one who I feel believed what I was telling them. They were really great – they spoke and spoke to me – but RA really tried to find evidence to back up what I was saying.” 2.2.d.
Improved mental and physical health
A number of clients described their levels of desperation and confusion prior to finding some support at the Access to Justice project. Several spoke about feeling suicidal prior to finding somebody to talk to and help explain their case. The relief offered by having somebody listen, and some avenue to pursue, and some understanding shone on their situation, was clear from their testimony. “I came here at the end of last July. Because I was almost dead for four years. For years I was hopeless, I didn’t have much support, when I came to Refugee Action here in Manchester they gave me the spirit again to my life and they gave me the hope again to my life.” “To be honest with you, I cannot say that Refugee Action hasn’t helped me. They backed me up. They asked me the questions, interviewed me on the phone, I don’t know what they did with this but they really, really helped me. [After that awful hearing on my own] my community nurse came one day and I was about to kill myself. I was not myself. Straight away she rang my doctor, the doctor gave me the tablets for depression, now I am getting better. So the whole thing is making me come through this better.” 2.2.e.
Rescuing from poor support and pointing towards options
A few interviewees described a failure to provide legal advice and carry on a case to appeal when it may have merit as a form of exploitation in and of itself. In such cases it was felt that some lawyers would take a case when it was commercially viable, but then drop it for primarily commercially-motivated reasons once refused, even if privately they deemed it to have some merit. For this reason they felt that one of the benefits of the Access to Justice project was that it took clients away from systems which were essentially failing them but taking the money anyway, towards systems which were putting their interests first. In addition, the chance then to link to other services both within Refugee Action and networks of organisations they are in contact with means that individuals can go on to access other types of support. Some clients spoke about the fact that they had not been successful with their case, but had managed to get support from elsewhere as a result of coming into contact with Access to Justice.
Benefits for those working in the field
There was some evidence that as a result of liaising with other organisations about the project, particularly when trying to stimulate more referrals, agencies are now understanding the system (and CLR within this) better. “The [people who work at the] Destitution Drop In now understand the legal system far better so they’re not misleading people so much. They used to send loads of people off to find another solicitor when legal aid was refused as they just didn’t understand what the system was and what needed to happen” Lawyers as well have gained a better understanding of the importance of appealing against CLR decisions which chimes with a comment made by an external stakeholder that lawyers are not always helped to understand the specificities of applying for legal aid. One caseworker had noticed a difference in the attitude of lawyers they were in touch with: “Solicitors have realised what we are doing, and that we know what we are talking about and they have changed their attitude to this. They are beginning to want to work on the cases, talk to us properly because we know what we are talking about”. This is also, of course, a benefit to Refugee Action as it is starting to gain respect and awareness in the legal field for its work. Lawyers recognise that what they are doing is not complex work but that in spite of this the benefits can be big. As one adviser put it: “One gentleman we are currently assisting, just as his asylum case had been refused and he was denied CLR, he received some medical reports from his country of origin as he had attended the doctor after being tortured. His family got them and sent them here. There was no way he could have afforded to get them translated, he would have showed up in court clutching them and saying ‘would you like to look at these’. No way that would have happened. So it’s not like we are doing this brilliant, legal analysis. Much of it is just about having a representative in place who is doing the basic stuff of finding and making available information which supports an asylum claim.” Finally, some smaller organisations seem to be responding well to the project. It gives them somewhere to refer to, it helps them understand the system a bit better, and it gives a sense, symbolically, of something positive happening amidst a sea of cutbacks and desperate need. One RA staff member summarised this: “It has really delivered for smaller advice organisations I think. They have been delighted that we are taking on this project. People I have spoken with on various forums were interested to hear that we were doing this.”
Impact on Refugee Action
2.3.a. Learning gained on what is happening round access to justice, particularly in London The project has managed to gain some useful learning, as well as increase its bank of client evidence around experiences in the legal system which can now be used in other work. Although the project identified very few eligible clients within London it could take on within its timeframe, it did a lot of work exploring why this might be the case. This has gone on to yield some important learning about what is happening in the capital, and will be an important springboard for any future work or research in London. London has a particular set of circumstances: a large number of asylum seekers concentrated in the region (attracting at any one time 13% of all new asylum seekers), and therefore a potentially large client need for this project. However, asylum seekers remaining in London choose not to be dispersed and therefore forego accommodation provided under the National Asylum Support Service (NASS). This would imply that they are in the main relying on friends, family and other support networks in order to survive.
A worrying picture within London has started to emerge through talking to a wide range of potential referral 1 organisations in London as well as key stakeholders in the Access to Justice project. Some key issues are emerging which are London-specific and all would require further investigation, some of which is already underway. However, it certainly does not appear to be the case that there are no clients because there is no need. Amongst the key issues identified are: On the whole, it seems that refugee advice services in London are not reaching asylum seekers in London until they are ‘All Rights Exhausted’. This is important for the sector to note as there may be a case for work which seeks to reach them earlier in the asylum determination process. One area of particular concern is that asylum seekers don’t appear to be aware Legal Aid is available to assist them to make their initial asylum claim: only 35% of asylum seekers obtain any form of legal aid for their claim and many Choices clients report being unaware that they could have had a legal aid solicitor. There is some anecdotal evidence that some legal providers in London are undertaking both publicly funded and private work, and then (wrongly) refusing legal aid in order to charge their client private fees. A Freedom of Information request revealed a large number of asylum appellants attending the First-Tier Tribunal in London without legal representation (1072 for the financial year ending 2012). This is a large figure, and will undoubtedly include those refused CLR. In addition to starting some important learning about London, the Access to Justice project has also, in a small way, highlighted variances between regions, and the vital importance of getting quite detailed knowledge if the system is to be played to best advantage for the client. In particular it has highlighted a potential need to explore how legal aid is ending up concentrated in a few providers in some areas – this issue was raised in relation to the difference between the multiplicity of providers in the Greater Manchester area, and the Liverpool area where there is a virtual monopoly of one provider. And finally it had taken people closer to the client experience of the justice system. “Access to Justice takes us closer to the client experience in a way we don’t have with the more reactive drop in type services. You understand the process far better – even in an administrative role. The benefit of that is that it can inform our thinking and how we plan for future services – even if that is bigger than us, we are making decisions in terms of actually walking alongside the client.” 2.3.b. It is establishing and building Refugee Action’s profile and reputation The legal providers we interviewed were very complimentary about what the Access to Justice project had managed to do and the professionalism of the staff. In addition, various organisations in touch with Refugee Action’s regional offices had reported that they were glad that it was pursuing the project, and felt it to be a positive development. “The feedback coming in from meetings and partnership groups is that partners think it is a good thing that we are doing. The Choices outreach team have picked up on something to promote – we had a lot of people who were starting to see Refugee Action as very Choices dominated, and some don’t view that as a positive thing, so with a project like this you can emphasise that there is another line of work. We have had a lot of positive feedback from partner organisations in Manchester” The same was reported in the South West, where again the advantage of doing something other than Choices was mentioned. “The truth is that Choices and AVR upset a lot of people, this is much more what people want to see Refugee Action doing. Reputation wise I think this has been a very good thing.” With national partners, this is beginning to raise Refugee Action’s profile as well. One person noted that there are very few initiatives in this area at present, and that any insight or attention gained from the frontline is seized on hungrily by those wishing to tackle the ever-deepening injustices in ‘the system’. As one policy organisation said: “We don’t 1
Refugee Action’s Interim Report on the Access to Justice project in London details the views and feedback of 17 agencies which Refugee Action contacted in the course of the project to explore referrals.
often have contact with people at the frontline, and we need to as this gives us insight as to the details we would need for a case study. We can find it hard to identify cases to illustrate our campaigning work. The Access to Justice caseload may be very useful”. Refugee Action, by doing this work, has given itself a clearer positioning and the beginning of an evidence-based mandate at policy tables and with policy organisations. 2.3.c. Positive impact on morale within the organisation Several interviewees felt the project had boosted morale within the organisation – not just for them, but for staff and volunteers more generally. “A lot of staff on other services have viewed the project really positively. When you are working on Choices which can often be about helping clients to choose between two undesirable options, or One Stop Shop where the clients are often faced with seemingly unending and intractable support issues as a result of their lack of legal status, it can feel overwhelming. The Access to Justice project has a more easily identifiable goal to it, potentially where the client goes on to get refugee status. And people are really interested and keen on it, internally. Before I was in post, when the office received email updates about what the project had achieved, it was quite minimal gains in one way, it was just about one person being granted asylum, but there was a flood of group emails coming back saying ‘well done’…..I think that’s because this is about justice. It positively reinforces their sense of the organisation and what it’s about at core.”
2.3.d. Introduced learning, skills and confidence The project has brought skills and increased understanding into the organisation by training up the caseworkers, and by enabling workers within the One Stop Shop services to understand how this aspect of the system works. So though the project is now ending, that awareness and those skills are still there. Some of that awareness is around quite a detailed understanding of the local area and systems, it should be noted. The research undertaken in London could prove very useful for understanding what the next steps should be. And more practically, work done by caseworkers in the South West and North West has enabled a much better understanding of how the system works, which in turn begets confidence about how best to help clients. For example, one caseworker noted that: “The LSC deals with applications on Wednesday and Friday so once I got that sorted out I changed my hours so I could get applications in to them. Variations are great in the LSC. Often all those sent in for Wednesday get refused and all those on Friday accepted so I considered just sending them in Fridays.” Finally, it has also enabled Refugee Action to ‘cut its teeth’ in terms of running a legal project, and to learn lessons about how to do this – and not do this – in the future.
Policy insights and gains
At a policy level, the biggest benefits of the project for now have been interim lessons about the landscape, and the development of case studies and evidence which can be used in future campaigns. Some external stakeholders felt spoke about the fact that they felt the project had been beneficial: “I think it has been a really useful project. I think its greatest value is that it has contributed to data which suggests that representation generally is poor quality, and I think that an understanding of the general quality of legal representation informs all things about strategy. So this is a debate about front-loading quality representation to achieve better value for refugees but also value for money for government.” “It has brought a number of matters to light, such as the fact that solicitors get to the point of refusing legal aid and then start offering fee services. In London lots of people are going to private firms anyway. There are also lessons in London about particular communities – the Chinese community, for instance, which seems to be doing different things from other communities. We are just piecing together a picture of this through a survey” Finally, it has revealed some shocking incompetence as well as abuse in the heart of the system: incompetent advice and decision-making, abusive experiences around appeals where clients are not listened to, and some solicitors who
seem to be taking fees for doing nothing of use for the client. One person spoke about the fact that, though they live in Liverpool, they were referred to Rochdale Law Centre, nearly two hours away via a train which they cannot afford to take. Someone also noted that the UKBA is still referring clients to Immigration Advisory Service in its standard template documents to clients, though IAS has in fact closed down. “Basically, UKBA is still telling clients to contact a service which is now closed.” Other quotes reveal other worrying incompetence.
“X’s case is very powerful if you look at it. Funding has been given for services which were not provided, and the client was unaware of the process. So people with good cases are still in the country years later without case sorted and then the government has to provide legal advice again, as well as send the individual to detention. He has been in detention so often, but if there had been a genuine assessment all would have been saved.” “I had one client referred to me from RA – it was a really huge complex case. When you actually got into the detail, how the previous solicitor could turn round and say it wasn’t arguable was beyond belief. We still haven’t got a decision as the HO said that they had withdrawn their decision. So we just have to wait for a new decision. But he is our client now – if they get a new decision then we will appeal again.” “I was very up and down. I remember trying to prepare myself before for sitting in the court by myself. When I went to court, I asked my neighbour to look after my child for that day. But the person was also pregnant with another child, and so that was difficult. When I was in the court I didn’t really speak. I didn’t know what to say properly. Of course I know my case. But they said things, and the judge was rude. I was just thinking ‘this is the end of the world’. The judge shouted at me, he said ‘Do you have any evidence today’ and I said ‘yes’. He said ‘So why don’t you just bring those evidences in five working days – you received the letter and you know about it’. He really shouted at me. I thought it was better to die.”
Access to Justice: the broader picture
We spoke to people not only about the Access to Justice project, but also about the wider picture and what, given this, it may be possible and desirable for Refugee Action to do. The following analysis is provided by way of setting the scene: however, things are moving very fast in the areas of asylum processes, support and legal advocacy and we are aware that developments that could have an impact in this area are likely in all these fields very soon as the abolition of UKBA, the new asylum determination process, LASPO and further legal aid changes take effect. For instance, Article 8 claims are now out of scope, and this may have a significant knock on effect. Now that under LASPO legal representatives will no longer be paid under legal aid for immigration work, the rate of CLR refusals might rise if Article 8 considerations that might otherwise have bolstered an asylum claim are no longer explored.
Current context for asylum seekers Asylum applications
Asylum applications for 2012 show a small increase (10%) on the previous year, but there has also been a steady increase in the number of initial positive decisions, up to 36% in 2012. The top ten nationalities of applicants in 2012 are as depicted in the following graph: Fig. 1: Top ten nationalities of applicants, 2012
As one would expect, initial decisions show significant variation between nationalities. Applications by Syrian, Sri Lankan, and Eritrean nationals have a success rate of over 80%. About half of Iranian applications result in an initial grant of leave, and about a third or Albanian and Afghans. The other top ten nationalities have chances of less than 20% (only 2% of Indian applications were initially successful). While asylum numbers have increased to some extent, the backlog is clearly increasing month on month at a greater 2 rate. The Eurostat figures for January 2013 show pending cases, at 14,562, up by 24% on those pending at January 2012. These pending cases split almost evenly between those who have been waiting less than six months for an initial decision, those who have been waiting for more than six months for an initial decision and those pending “further review”. The biggest increase is in the number of cases waiting for an initial decision for over six months: the number pending “further review” after an initial decision (i.e. the appeals backlog) has actually gone down. These appeals, however, continue to overturn a significant number of the decisions they consider. “In 2012, there were 2
2,192 cases where the initial asylum decisions were successfully appealed (27 per cent of all appeals).” identifies the main reasons for this high percentage of cases initially wrongly determined as:
“the use of speculative arguments or unreasonable plausibility findings; not properly considering the available evidence; using a small number of inconsistencies to dismiss the application; and not making proper use of 4 country of origin information.”
Asylum application process
We do not intend to provide a description of the asylum application process here, but simply note that the Asylum Improvement Project started by the newly elected government in 2010 has now largely run its course. As part of that: “The Government has replaced the previous target to conclude new asylum applications within six months of their submission with “a new set of performance indicators designed to show the overall health of the asylum system”. These will include information on intake, decisions taken within 30 days, quality of decision, grant rate, percentage of decisions overturned at appeal, conclusions at 6, 12, 18 and 36 months, number and age profile of outstanding caseload, asylum support costs, productivity, and unit cost.” The Home Office still tells applicants that they are to be dealt with under the system set up by the New Asylum Model, where each applicant has a single case owner from start to finish. However, this was due to have been replaced by 5 the “asylum operating model” from April 2013 . “Decision makers were to be downgraded to EO level from HEO level and there was to be an effective presumption of fast tracking of asylum claims. There has been no public announcement and it is impossible to 6 know whether the change has occurred or been postponed.” This change, however, was poorly timed to happen a few days after the abolition of the UKBA and the reintegration of its functions into the Home Office. 3.1.c.
Legal advice and representation for asylum seekers
The Early Legal Advice Project (ELAP) run in the East of England and Midlands region includes no further new cases from December 2012 onwards. This project provided a different funding and practice model for legal representation during the asylum process, with a focus on early advice and extensive cooperation between advocates and Home Office case owners. “The aim will be to create an environment where all relevant evidence is correctly identified and placed into account before the decision is made rather than coming to light fully only at the appeal stage what has happened to asylum determination processes” The end of ELAP leaves asylum seekers who depend on legal aid getting their legal advice under the same general funding rules, based on a fixed fee structure. While asylum matters have generally stayed in scope, there is concern that those who have not been accepted by the National Referral Mechanism as victims of trafficking may not get legal aid, and that it will also be unavailable for those who get some form of leave and then want to make further immigration applications such as family reunions or citizenship. 7
The new proposals to introduce a residence test for civil legal aid represent a new threat to asylum seekers and refugees. While there is a specific exemption for those defined as asylum seekers, this will not cover
A ? of Credibility by Amnesty International/Still Human Still Here April 2013. Op cit 5 From ILPA Evidence to the Home Affairs Select Committee Enquiry into Asylum April 2013 6 From Free Movement blog, posted on 8th April 2013 7 https://consult.justice.gov.uk/digital-communications/transforming-legal-aid 4
successful asylum seekers (i.e. those recognised as refugees or given HP or DL) who need civil legal aid within the first year in the UK. This is, of course, the time when new refugees are most likely to need to get housed as homeless, for example, and so may need to challenge refusals of local authority services “failed” asylum seekers until after they have made a fresh claim (and so it appears they will not be able to get advice on the merits of such a claim, and, of course, such fresh claims take a while to be registered as such) The associated proposals to restrict funding for judicial review are also likely to affect those asylum seekers and refugees who seek help for this in any matters. As most legal providers confirm, often it is only at the point of issuing proceedings that the other side concedes, since this provides the trigger to review the decision. Refugees, like others who face discrimination in many areas of service provision, are likely to be particularly affected by this. The result of this flawed process and problems with access to legal advice is currently a large number of people living in the UK who are unwilling or unable to go home after the end of their unsuccessful asylum application: a situation highlighted by Refugee Action for many years, and the focus of the Still Human Still Here coalition.
Key issues illustrated by the Access to Justice Project
Overall, the Access to Justice project succeeded in demonstrating that the problems and issues highlighted through the Asylum Appellate Project in Devon and Cornwall were not isolated to that region, but exist in other UK regions. Out of the 44 clients seen by the project, 28 of these went on to then successfully get CLR, showing that, as in Devon and Cornwall, roughly two-thirds of refusals (64% overall in this project) for CLR should simply not be refused. Access to Justice also managed to add to the evidence that the asylum system is not only denying people legal representation at a critical stage, but in some instances failing to grant asylum where, with a bit of work and dedication from a lawyer able to navigate the system, it is clear that a person has a rightful asylum claim. 3.2.a.
A high proportion of cases reviewed by the project got CLR
The “sample” of clients seen by the project was not preselected or prioritized in any way other than that they fitted the project’s criteria: they were asylum seekers whose solicitor had withdrawn CLR. As the numbers were small (for reasons described above) it is difficult to draw any useful conclusions from further disaggregation and look at whether there were particular issues of nationality, gender, basis of claim etc. Fig 2: Client tally for Access to Justice project
CW4 Result Pending
Asylum Appeal Refused
Asylum Appeal Granted
Total CW4 Results
Average CW4 Success Rate
Bristol Manchester London
7 19 2
5 11 0
0 0 0
9 18 1
12 30 2
58% 63% 100%
Of the 44 people seen, 28 (64%) got their CLR restored on review. It is important to note that what this means is that the solicitors who refused CLR believed that the merits of the cases involved were poor, but that this view was not shared by the Independent Funding Adjudicator who reviewed the papers submitted. It should be emphasised that 8 this review is conducted on the basis of the same criteria as solicitors granting or refusing CLR should use . The IFAs are experienced lawyers who would be assessing the merits on the basis of the information supplied by the solicitor, the Home Office decision-maker, the client, and for this project, the Refugee Action adviser.
Legal Services Commission Guidance on applications for a review of a refusal of funding in Immigration CLR matters
3.2.b. Some solicitors refuse CLR either without access to the full facts or because they do not understand the merits of a case This is simply the inescapable conclusion from the above. None of the cases taken on by the project presented with significant changes of circumstances after the refusal of CLR. In many cases, according to the clients and the advisers, the Access to Justice advisers succeeded in finding out a lot more about the client, his/her case and his/her circumstances than the solicitor did. Our interviews with clients point to a significant difference in the amount of time that Refugee Action advisers spent with clients compared to the time spent by many of the solicitors they saw. The advisers also point to some cases where they made new arguments or brought out the significance of known facts that had not been dealt with in the Home Office refusal letters, based on their knowledge of case law, country guidance, and appropriate responses e.g. to trafficking. 3.2.c.
Some of those refused CLR have gone on to win their appeals
The numbers here are very small but nevertheless significant. Three people seen by the Manchester site got their CLR as a result of the intervention and went on to win their appeal. One further case was withdrawn by the UKBA before the appeal. These numbers are not statistically significant, but they are, of course, of huge importance to the clients involved and to the proper administration of justice and to the preservation of the right of asylum. 3.2.d.
Poor quality advice and representation by some solicitors is an ongoing problem
One private practice solicitor spoke for many when they observed: “When we see the files we are surprised by how little work has been done. We end up in court on cases where the client says he did not understand it all at interview, and then we raise that and the court says it was not raised at the time. The solicitor never took instructions from client straight after the interview, did not go through it or raise issues about the interview. The representative may cause harm by not thinking about it and may not reflect on what should be passed on to the Home Office or not.” Interviews with project clients told a similar story: many had not seen a solicitor for much time before their Home Office interview and had spent remarkably little time with them afterwards. Few were given any guidance about what evidence would be useful nor how they could provide it by solicitors prior to being in contact with the Access to Justice project. The provision of poor or insufficient advice on legal aid is simply a waste of public funds. At best it results in another provider being paid again to do things properly second time around. At worst it may result in refusal of asylum to those who need it. Where this does not result in the return of the refugee to danger or death it is likely to lead to a prolonged period of uncertainty and destitution. These also carry costs to the public purse. “Funding is provided for services that are not provided, and the client left unaware of the process. So people with good cases are still in the country years later without their case sorted and then the government has to provide legal advice again and detain. X has been in detention so often, but if there had been a genuine assessment all would have been saved.” [RA adviser] 3.2.e.
Insufficient quality control and what this may be leading to
There is insufficient quality control in the provision of legally aided asylum advice and this may lead to perverse incentives in the funding regimes. “The issue here is that good providers spend a lot of time at the outset and understand the basis of the case and so will turn down on merits at that point. Bad ones do nothing until the Home Office decision, then refuse to put the work in to sort it out.”
In other words, the refusal of CLR may be a way for firms that have offered poor quality advice to “sweep it under the carpet”, reasonably confident that their failures will not come to light as a result, because the case will not then go to appeal. As one solicitor noted: “the only people who look at it are the Home Office who don’t mind if you botch it (they get results more quickly if you are shoddy) and the LSC who look at costs within the project and are not looking at what happens with the massive costs of judicial review or removal or other costs. There is no independent oversight of quality” Other lawyers interviewed were equally concerned about quality issues, which came up time and time again in interview. “Lawyers are not doing work and escaping audit. Regulation is poor; firms employ people on levels 1 and 2 who can’t do appeals. They don’t understand the law on asylum and the claims they refuse usually have grounds for appeal.” “We make it work by understanding asylum law which works for us and our clients. But there are inevitable errors of law if you are not able to present properly or may not have noticed problems like mental health issues” It is important to note that on paper the funding system allows for most eventualities: it is in how it is operated by some firms that the problems arise as these two quotes from voluntary sector interviewees illustrate: “Merits is not a problem. You can always withdraw CLR later on reflection because of the weakness of case and if merits fall below 50%. You can recoup expenditure” “There is no incentive for doing it properly” One NGO pointed out that the issue of CLR grants did not form part of training for lawyers working on asylum. “It is interesting: when I did accreditation in 2004 and 2010 I don’t remember much of the accreditation process being on granting or refusing CLR which is a very important part of the service. “ 3.2.f.
Initial and continuing advice is crucial for asylum claims “Frankly helping people understand the system is such a no brainer.”
The clients we interviewed generally told us that their contact with the Access to Justice project enabled them to understand the process, become active in their own case, and explain themselves better. As a result, the asylum claim was refocused around relevant issues, and other issues in their lives were referred to agencies or within Refugee Action to be dealt with. We were repeatedly told that it was only then that they understood what was involved in an asylum claim, what would happen next, and how the whole thing worked as these two quotes from advisers show: “People don’t know what they need to tell solicitors and don’t tell them.” “Tell them the things that are really important and explain what the interviews are about.” Many clients also highlighted the importance of:
The time spent with them on initial interviews, which enabled them to get things clear in their own minds, explain them properly, and develop trust in the adviser. As one client noted: “If you don’t really sit down with me you don’t really know where I am coming from. I had to use another name in the past, for instance.” The other support they got from Refugee Action, directly or indirectly (this was particularly the case for women supported by the women’s project in Bristol) The help in gathering evidence which included e.g. commissioning medical reports, research on the internet The understanding they developed about the process The feelings of being trusted, believed and respected
Gaining trust of asylum seekers through legal support can lead to other gains
Asylum applicants who have been properly supported have more confidence in the process and in the organisations that support them. This in turn means that they are more likely to listen to what the organisation tells them, and trust that they have their best interests at heart. This reflects some of the conclusions of key worker projects in the past and the Access to Justice project shows similar effects. Some client interviewees were very keen to tell us, often unprompted, how favourably they regarded Refugee Action and the project in particular. Several had referred others to it. Advisers, all of whom also worked for Choices, expressed the view that this trust would continue, and that as a result, if all other avenues had been exhausted, clients would be potentially more receptive and ‘trusting’ of ideas about voluntary return. 3.2.g.
The Access to Justice project has been a useful monitor
The project itself focused on a small number of people and a specific fault in the whole system of asylum advocacy and determination that can result in severe consequences. It combines some key elements:
High quality legal input and understanding Relationship and trust building with clients Development of a good network of referrals both into the project and on to legal representation Good critical understanding of how the different elements in an asylum seeker’s life fit together (including, for example, the effects of dispersal, trafficking, how the asylum determination process works and so on)
In fact, the project received many referrals of people who did not fit the narrow eligibility remit, but who had other problems related to poor or inadequate advice and advocacy. Interviewees also emphasised to us that there are a range of problems remaining to be resolved, and have fears that LASPO and new cuts proposed to legal aid will also create significant gaps in the system designed to ensure that refugees get proper protection. Several also believed that contracting for services is likely to create inherent incentives to work on the cheap, and this is likely to lead to problems, especially since there are unresolved problems about the quality control of legally aided asylum advice. These are more severe in the asylum system because, even though there has been some protection against the legal aid cuts, asylum seekers are, by definition, particularly vulnerable, and because the consequences of failure are much worse. The problem is that different elements of asylum seekers lives and cases all interact, and so it is difficult to establish:
What is causing any specific problem: is it lack of information at the Home Office, bad decision-making, bad advice and advocacy, or other issues that may affect how the asylum seeker interacts with what is available, such as dispersal or destitution. What the policy solution may be and who might be able to effect the necessary change What the effects of any proposed change may be
Working with the asylum system to improve the protection the UK offers can feel like an extremely rocky and uphill path. As fast as one rock is navigated, another reappears. What Access to Justice has done with some success is to spot one of these rocks, highlighted its effect and enabled a few people to step over it. It has also shown in the process the importance of doing frontline work which is able to identify the problems where they arise and shine a light on how the current system is affecting the lives of human beings seeking asylum in the UK today.
Appendix 1 â€“ List of those interviewed 1. 2. 3. 4. 5. 6. 7. 8. 9.
Philip Baker Keith Best Lauren Butler Judith Dennis Paul Dillane John Donkersley Dave Garratt Elinor Harris Deri Hughes-Roberts
10. Tony Jaffray 11. Patrick Jones 12. Rick Jones 13. Mary Keane 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25.
Sabeeha Khan Jean-Benoit Louveaux Richard Malfait Wendy McManus Chris Randall Sile Reynolds Dominic Riley Sarah-Jane Savage Nick Scott Flynn Mark Shepherd Michael Tarnoky Maurice Wren
Access to Justice Caseworker, Refugee Action (London) CEO, Freedom from Torture Client legal adviser, Rochdale Law Centre Advocacy Officer (Policy/Legal), Refugee Council Refugee law specialist, Amnesty Refugee Law and Justice, Manuel Bravo Project CEO, Refugee Action Area Manager, Refugee Action (Bristol office) Author of Justice At Risk (Runnymede) & Rethinking Asylum Legal Representation (Asylum Aid)
Access to Justice Caseworker, Refugee Action (Bristol Office) Legal Team Manager, Asylum Aid Operations Director, Refugee Action Access to Justice line manager, Refugee Action (NW Office) Manuel Bravo Project Access to Justice lead/Legal Specialist, Refugee Action Consultant, ATJ, Refugee Action Client legal adviser, Bury Law Centre Advisory Group member/Practicing immigration solicitor Policy & Information Manager, Refugee Action Access to Justice Caseworker, Refugee Action (NW Office) Senior Legal Officer, UNHCR Head of Refugee Services, Red Cross Client legal adviser, Migrant Legal Project, Bristol Advisory Group member/ILPA Rep CEO, Refugee Council (formerly Asylum Aid)
Appendix 2: Case studies of asylum seekers CASE STUDY 1 S is a man from West Africa who met his solicitor while in detention, where he had decided to apply for asylum. On his release he had an interview at the Home Office, and told the solicitor who simply told him to go along to it. During the interview (in English, not S’s first language) he was very flustered and worried and felt that he was not given time to explain things well, especially since he had initially been sent to the wrong building. Then the refusal letter came, and the solicitors contacted him a week later. After 10 or 15 minutes with him they said they could help no further and would close the case. They checked nothing about the content of the letter. “I was very stressed. I thought oh, if I die, let me die, my case is genuine they will kill me……. They said there is no legal aid for you they killed my spirit.” He went to a refugee group and they contacted Refugee Action. “He turned my world around. I was so stressed I did not know what to do, they were sending me back I felt I was going mad, [the RA caseworker] came and calmed me down and I talked and stated my case, and the appeal was now urgent and my lawyer would not help.” The solicitors had told him he could not get legal aid, but the RA caseworker sorted that out, even though there was very little time before the appeal, and referred him to a well known firm of immigration solicitors. Even then, S was refused on appeal, but is now waiting for a date for the Upper Tribunal, still represented by the same solicitor. “My previous solicitors have no passion, they accepted that what the Home Office said was true, they said you cannot win, so we cannot continue the case but they did it without going through any of the papers or my story. When I went to court they just left me to defend my life. I tried to rectify stuff but they did not listen, I was in such a panic and now I have someone with me who understands me and it relieves me. …..this project needs to stand, if not for them I would have been killed” He has offered to help with the project: “They need to open more branches it is like a secret. A lot of people give up. You are half going crazy. I stood firm and let them know why I did what I did but that was after I met them. I would direct people here. I started already. Tell them you can talk to people here. We have to believe in justice. It is difficult for them to come out and come through. This is a real process to help people.”
CASE STUDY 2 J is a disabled woman from East Africa who arrived in the UK in autumn 2012. She was bought to the UK by an agency and eventually found her way to applying for asylum in Croydon, from which she was sent to a hostel and then dispersed accommodation. She contacted a solicitor from a list she was given, and went to see him before her interview with the Home Office. The meeting lasted 30 minutes, during which she explained her case, but was not asked to find any further evidence. She was given no explanation of how the asylum system works or what was needed for an application. Once she had the interview record she went back to the solicitor who said “This will not work” and told her she would be refused because the government had promised to control the people from whom she was at risk. “He told me to go and wait but I knew he knew something and I knew nothing. Then nothing happened.” Finally, a letter arrived saying she was refused. She went back to the solicitor who said there was no more legal aid. “He said: “You can challenge us or pay us.” I said, how can I pay?” So she went to see Refugee Action along with four friends, where she had been put in touch with their women’s project. The Access to Justice project got legal aid reinstated, found her a solicitor, and she was represented by a barrister when she went to appeal. She is now waiting for the result. “Coming to [RA] gives you new life. If not for them….We are strangers here and you are nowhere and rejected by government. Now I feel good and don’t feel so alone in the world…..I feel we will succeed, I hope we will. …….I have sent many people here I say go to Refugee Action and when you get there your cares go away. Because they care for you here. ………Ask them to carry on and help people seeking refugee everywhere. The love and kindness helps us carry on. If the service stops you will be killing people.“
CASE STUDY 3 M has been in the UK for four years and did not originally intend to claim asylum when she arrived from West Africa with her two small children. She got and paid for a solicitor in London to help her with immigration problems, but is not clear what they did for her. They said she needed to appeal and wanted more money to represent her, but by then she had none. Her situation was complicated, and she found the Access to Justice project because she was referred to the Refugee Action women’s project. The project helped her gather the evidence she needed to support a new asylum claim. Then they found a solicitor for her. “The Bristol solicitor was very different to the London one. He took his time, he listened well. He told me needed all the documents, said he did not want to confuse me, went over things a lot and tried a lot of things.” But she had no entitlement to legal aid, so the solicitor challenged this, with help from the project, but lost. “So [the RA caseworker] did a long interview explaining what I needed to do in the tribunal. He explained it all, what it looks like, gave me lots of pages of information. He helped me so much. I went home and I was able to read everything and when I read it I thought I have a little hope. He prepared the case and boosted my morale. He printed off four different articles about the situation (at home) and did photocopies to give to the judge. So I had everything to explain to the judge when I went two weeks ago. I expect the result in a few weeks.” “I really recommend Refugee Action…….They are the best for now. I don’t know about the future”
CASE STUDY 4 M had originally filled in a visa application in Central Africa, or rather given that she didn’t speak English, somebody else had filled it out on her behalf. Unbeknownst to her, this was to kick off a string of problems for her as the person recording her details described her as still having a husband, though in fact he had been killed. “In the letter requesting a visa it wasn’t stated that I was a widow”. As her case for asylum unravelled in England, M was represented by a solicitor. “I’m not sure how many times I saw them… not very much. They were all over a three month period. My husband was dead – he had been killed. He used to send money, but no more. I had a copy of his death certificate. But [solicitor] said I had lied in the original visa application and then changed my story so they couldn’t represent me any more”. M had various documents, but wasn’t clear about what her solicitor had. Not being able to understand what was going on, she says she relied on her daughter sending through documents, and on her solicitor chasing what was needed initially once she had told her story. “My doctor offered to send a letter but I don’t think they got a report from him. I think they got a psychiatric report and physical reports about my health before the first tribunal. I wouldn’t say though that my original solicitor gave me enough chance to find out if there were other types of evidence I could find, if I could find further proof. I didn’t understand why I was refused asylum.” The credibility of her case hinged on understanding what had happened in the original visa application, but this only happened once she had been turned down for CLR and referred on by her solicitor to Refugee Action. “My solicitor told me to come and see Refugee Action. When I came here, they faxed my documents over and then I had an appointment with [the RA caseworker]. He asked me if I had a copy of anything other than the death certificate of my husband to prove my story. I told him I had – I had got something from my daughter, and she had got a copy of a certificate from the hospital showing his cause of death, and a copy of his ID card by email.” M felt that this helped to present her case more accurately, and in addition she was able to work out why people had thought she had lied and said that her husband had been alive when she applied for a visa originally back in Africa. “The problem was this – I had given my title when asked by the person filling out the application on my behalf as ‘Madame’. Because of that they had assumed that I was still living with my husband when in fact he was dead, and they had put that on the form.” M’s case dramatically changed following this realization, and the unearthing of further evidence. “They told me at Refugee Action that if my story was believed I would get a new representative… three days later [the RA caseworker]
called me to say I had got legal support. I said ‘Thank God for that’. I found another lawyer… and now I have been given refugee status”. M is clear that the project helped change her life. “It was very, very good for me. The project is a really great project. If it were not for this project, I would not have my status. Now I am working out what to do, and I am going to talk with Refugee Action about finding somewhere to live. I would ask God to give this project a long life.”
CASE STUDY 5 C is a woman from South Eastern Africa who is HIV+, and who has a three year old child with sickle cell anaemia. She has been struggling to cope in the UK and experienced severe bouts of depression. When C arrived in the UK and wanted to apply for asylum, like many she didn’t know how to go about it and got no advice. “My first solicitor advised me about the Home Office interview, but they spent literally only five or ten minutes before the interview with me. I remember the lawyer said after that ‘when they look at your case they will refuse you as you don’t have any evidence from the police.” They did refuse her, and she ended up going to another solicitor but she still could not find the documents needed and she was refused asylum. She didn’t really understand why: “They said there are some errors. They said there was not enough evidence that I collect, and also that my child is OK to be sent back without risk”. C returned to her lawyer and was told to book another appointment, but then was phoned and told that they had dropped her case. “I didn’t really understand why. They said I should have been attending [Name of support organisation for asylum seekers] but that I hadn’t been. I think I was dropped because I wasn’t attending that group.” Desperate, C said at this point she was very up and down. She realized that she would have to appeal, but that she would need to do this on her own as she no longer had legal representation. “I remember trying to prepare myself for sitting in the court by myself. When I went to court, I asked my neighbour to look after my son for that day. But the person was also pregnant with her child, so that was difficult. But I got to court, but once I was there I didn’t really speak. I didn’t really know what to say properly. Of course, I knew my things, my case. But they said things, and the judge was rude. Really rude. He shouted at me: ‘Do you have any evidence today’ he shouted, and I said ‘yes’ and he said ‘Why don’t you bring the evidence in five working days’. He shouted. Really shouted. I was just thinking ‘This is the end of the world’ and when he shouted again I honestly thought it was better to die” C’s case was dismissed. It was then that she contacted Refugee Action, who she had known about when she had started to seek asylum. She had remembered them from that time and from getting NASS support, and now she found herself in desperate straits she asked around to find out if there was another Refugee Action where she now lived. “I came to the reception in Liverpool. There was a guy on reception – I said ‘They have just dropped my case’. He said ‘OK, can you come back tomorrow?’, so I did, and this guy helped me, they took photocopies. They helped me write whatever you have to write. The judge was wrong, something like that. I received a letter then saying that they had granted me leave to appeal” Refugee Action’s intervention was timely. “I was so, so stressed after I was dropped by my solicitor. The support I got from Refugee Action was legal, but [the RA caseworker] also checked on me, she followed up, she rang me, she suggested places I could go to get other support. All of that was good for me.” The next time C went to court, she had somebody there to help her, letters from friends, from health visitors, pictures of her son with his friends in the UK and letters from the Church she attended. Armed with this, and now supported by another solicitor, C is taking her case forward and she is challenging previous failures to take her evidence into account. She feels the project, and Refugee Action’s work, has made all the difference to her. “Before this, they made me struggle on with a child. I was ready to kill myself. … Refugee Action backed me up. They asked me the questions, interviewed me on the phone. Before I felt like I was wasting my time with the lawyer. I felt I wasn’t listened to. They didn’t believe me I don’t think. But with Refugee Action I really felt that they believed me from deep down of my heart. Now I advise others to go to Refugee Action and I hear so many others who say ‘Refugee Action can help you – they really look at your case properly’. I hear that. I hope they continue the work that they are doing to help people like us seek asylum.”
CASE STUDY 6 N is a man from Yemen who arrived in the UK about five years ago. His first solicitor was very good, but sadly went into administration and so his case was transferred to another lawyer. The contrast with his first solicitor was stark: “My first solicitor understood. She gave me time and appreciated the matter. She was trying for me. She wrote a witness statement and whenever I asked her for things she was happy to help. With my next solicitor though, they did not hardly see me. I spent maybe five minutes with her”. N’s case was refused. He didn’t get the letter sent on to him until four days after his solicitor had received it, so there was a critical delay. He got the letter on a Saturday, and rushed to see his lawyer on the Monday morning. “I went straight in the morning and tried to see her but she refused. She said everything was written in the letter and I had the letter now. They told me that I didn’t have an appointment and she couldn’t see me further.” Then N was told that he couldn’t appeal the decision as he didn’t have any funding. “They told me that it did not have merit, and that’s why they couldn’t represent me in court. I got angry, I said ‘You got the money originally because of my case but now you don’t represent me’ and she just said ‘I can’t represent you any more’. Then they said to me that I had to go back to Wesley Hall, the church in Blackburn and that was it.” He did go to Wesley Hall, and Wesley Hall referred him to Refugee Action. He describes this decision as a complete turning point. “I was almost dead for four years. I was hopeless for years, I didn’t have much support. When I came to Refugee Action they gave me the spirit again to my life and they gave me the hope again to my life. [The RA caseworker] was very supportive and helpful – she wrote many emails, she put my case on the right direction, even when she was on holiday she was in touch with me to carry on my case. And then they found me another lawyer to take on my case, and they have taken it forward.” N’s case is complicated, and he says there were a range of misunderstandings to sort out and new evidence to gather in order to correct mistakes in the original Home Office interview. He says his new lawyers pursued new evidence, accompanied him to court, answered his questions and gathered new witness statements. In December 2012 they contacted N to tell him that the Home Office had said that they had withdrawn their decision at an appeal hearing. N is now waiting to hear what the new decision will be, but he is hopeful that this will be positive. “I was hopeless and Refugee Action gave me my life back. When all the doors were shut in front of me, I came into this office. There was an organisation to support me.”
CASE STUDY 7 J is from an African country now regarded as ‘safe’ by the Home Office. His case, however, rested in part on his being from a particular region of this country where he was at risk. He felt that his lawyer listened to him, but accepted the analysis that he was not at risk. “I was utterly demoralized. I contacted Refugee Action because I no longer was able to get support to appeal the decision. And also they suspended my NASS funding at the same time.” J was on the verge of being thrown out of his accommodation when he went to Refugee Action. The caseworker went to work “They did an incredible job. Really incredible. They put everything they had got from Croydon, everything from the previous solicitor, and they did a report and sent that to London. And it was a fantastic result – they proved that my cause had some credibility. So I got CLR”. J couldn’t find a lawyer before the tribunal date, so went to the tribunal thinking he would have to represent himself. However, Refugee Action had managed to ask for an adjournment of the procedure. This enabled a lawyer to be found, who took his documentation and worked through the case with him. “I went there, we worked together, and immediately this lawyer said to me that she couldn’t continue with that case. She explained to me that my case wasn’t good enough. And she wrote that to Refugee Action.” However, Refugee Action did not give up. Though two lawyers had now said that there was no merit in the case, the caseworker still pursued evidence that could show that what J was saying was true. It was complicated, and hinged on an event in Angola which the Home Office thought J had organized, but which in fact he had not. This small and seemingly technical detail made all the difference, and the Refugee Action caseworker ‘proved’ that J’s version of
events was, in fact, true “At two points I had lawyers refuse me. But Refugee Action was the only one who I feel believed what I was telling them. They were really great – they spoke and spoke with me, and they really tried to find evidence to back up what I was saying. [The RA caseworker] presented me with that documentation – I couldn’t believe how great that was. It showed that any accusations of me stirring unrest were unfounded…. They got a specialist from Portugal to show that what [the Home Office] said was the case was untrue.” J feels that it is a vital project. As a result of the intervention, he has got a residence permit and is able to stay. He is very emotional when he sums up how he feels about the intervention: “When you have been everywhere and everyone says ‘that’s false, that’s false, that’s false – to be listened to in the end and have the documents proved is just formidable. It was only Refugee Action who believed me.” J is now studying and looking for work as a cleaner.
CASE STUDY 8 H is an Iranian man who has been in the UK less than a year. Though H managed to see the lawyer before his substantive interview for an hour, and then after it again for one hour, he doesn’t feel that his lawyer followed up on any of the documents he gave them, and the lawyer told H that his main task for him would be after the interview. “My lawyer didn’t ask me to get any documents. The Home Office man in my interview asked me for some evidence though, so I did try and get some documents which I succeeded in doing and passed to my lawyer. But apparently he didn’t pass them on. He told me he was not too well and told me I might have to present them in a hearing myself. They were all documents which were important though – photos, summons to court, court notification. When I was refused asylum my letter said that they refused me as I didn’t provide any supporting evidence. That was what I understood.” H was extremely stressed and worried. He found out about Refugee Action, he thinks through friends who recommended the organisation. Though H found it quite hard to get an appointment at Refugee Action initially, when he did he had a face-to-face interview for an hour and a half with an interpreter. “The lady who was helping me look at the case assured me that there may have been a misunderstanding or something which gave me the hope.” They found a lawyer for him and with his evidence and a key witness the case went forward. It was very stressful for H, but late in the day the appeal was successful and he was given five year leave to remain. His family is now here. For H, the stress has taken its toll though. He was very, very satisfied with the support he ended up finding at Refugee Action but then moved to London and then an old, stress-related illness resurfaced. “Unfortunately due to my illness I lost control and sense in the left side of my body so I am now at home. Yes, I am now at home and I am sure I am afraid that psychological pressure had something to do with this.”
CASE STUDY 9 M is from North Africa, and had a solicitor before but didn’t find them very helpful. He says he saw them three times, but on two of those occasions literally only for 5 minutes, and on the third occasion only to hand over a paper. Other than that, the lawyer refused to see him. “That’s why I came to Refugee Action. When I was in Liverpool before I was in touch with Refugee Action and they said to me whenever you have a problem, just come to Refugee Action”. M’s case was very complicated and he feels that Refugee Action was really helpful in getting it in a good direction. “Yes, they helped me a lot. This experience was completely different. I came several times Refugee Action and we sat together with the caseworker for such a long time and they got me an interpreter and they submitted my case to get CLR.” M got a new solicitor. He had already tried to collect evidence on his own when he realized that he previous solicitor was not going to pursue his case for him, and had got a range of documents. However, they were in Arabic. “Refugee Action played a very big role in my case because my evidence was un-translated that I had managed to bring from my
country. So Refugee Action paid for the translation and for getting it ready, and they also helped find out some answers to my refusal questions which was very helpful, and which helped me make my case clear to the court.” M was about to have his case heard in court in a few days time, but is much more hopeful than ever he has been before. He was also supported with practical things. “Refugee Action helped me a lot, my money came to an end and they helped me to get it again. I didn’t have an ID card and they helped me with that for Accommodation. They helped me not be kicked out there too. So even the everyday stuff they have helped with. They have been very helpful for me. Refugee Action has been very good and I wish that they can continue doing that because it is a great thing.”
Appendix 3: Case histories of ‘successful’ asylum seekers CASE HISTORY 1 D was an activist in a pro-Arab political group in Iran, which was perceived by the authorities as being anti-regime. He fled with his wife and child, fearing persecution by the authorities following the arrest of a fellow activist. His asylum claim was refused and on receipt of the decision, his legal representative wrote to D refusing legal aid. D was not invited to an appointment with his legal representative nor given an opportunity to respond to the refusal of asylum. The Home Office refused his claim on the basis that D was not credible, but had misunderstood the core of his account, which was clear from reading D’s asylum interview record. The Project challenged the refusal of legal aid and applied to the Tribunal to have D’s case adjourned pending the outcome of that challenge. Unfortunately, the Tribunal refused to adjourn and D had to attend his appeal hearing unrepresented. The case was only part-heard however and, having now secured legal aid for his appeal, the Project applied for yet another adjournment to enable D to be legally represented. This too was refused. The Project now referred D to new legal representatives - who also applied and failed to obtain an adjournment - but who nevertheless attended the second hearing with the client. D’s appeal was allowed and he and his family were recognised as refugees.
CASE HISTORY 2 J left Angola to escape persecution from the government as a result of his support for the Cabinda Independence movement. He had been attacked and arrested on a number of occasions. He claimed asylum on that basis, but was refused by the Home Office, who did not accept his account of events as truthful. J’s legal representatives did not seek to challenge the Home Office on this and refused to represent him at appeal, claiming that his case had little chance of success and that he was therefore not eligible for legal aid. The Project enabled J to successfully appeal the refusal of legal aid and to obtain new legal representation. However, this solicitor also then wrongly refused legal aid The client therefore attended the appeal unrepresented. Despite this, and in marked contrast to the decision of both solicitors to refuse legal aid, the judge found in favour of the client and his appeal was allowed.
CASE HISTORY 3 M had suffered years of domestic violence at the hands of her husband and, upon his death, was then persecuted by his family who blamed her for his death, labelling her a witch. M fled Cameroon, arriving in the UK on a visa, only then to be exploited as unpaid domestic labour by three successive Cameroonian families. Whilst in the UK, M also discovered that she was HIV+. M was eventually able to escape from her domestic servitude and claimed asylum. UKBA accepted her account in its entirety but refused asylum on the grounds that she could relocate within Cameroon to avoid persecution from her in-laws. Her solicitors then withdrew representation two weeks before her appeal hearing. The Project enabled M to successfully appeal the withdrawal of Controlled Legal Representation and to obtain new legal representation. Having representation enabled the client to translate new evidence from Cameroon, secure a medical report in the UK and properly prepare and argue her case. The Judge found in favour of the client and her appeal was allowed. She was subsequently granted refugee status in the UK.
The findings and recommendations of Refugee Action's Access to Justice project, which investigate problems in legal representation for asylu...