Immigration solicitors claim that Lord Carter's proposals leave them facing a bleak future. But the Government seems determined to press ahead. Grania Langdon-Down reports.


Scandalous, voodoo economics, Alice in Wonderland, the destruction of the specialist immigration bar, the death knell of quality immigration advice – just some of the impassioned comments from immigration practitioners who are distraught at the damage they are convinced the Carter proposals will wreak on their field of work.



‘I am devoted to this work,’ says Vicky Guedalla, co-founder of London civil rights firm Deighton Guedalla and co-author of the Immigration Law Practitioners Association’s (ILPA) response to the consultation paper Legal aid: a sustainable future. ‘It would break my heart to stop. Why is the Legal Services Commission (LSC) risking throwing away my experience? Why?’



ILPA’s 80-page response says the Carter proposals fail comprehensively on every front: potential clients will find it difficult to access legal advice and representatives; firms will leave the field because they will not be able to provide a quality service and shoulder the levels of risk created by the proposals; the taxpayer and government will be short-changed because those most in need of help will be unable to find it; and the justice system will be starved of effective input from quality representatives at tribunal level, with consequent risks of injustice.



It is a difficult time for those working in immigration and asylum. A damning report by award-winning charity Bail for Immigration Detainees (BID) recently claimed that some specialist solicitors acting under the fast-track system for asylum cases are engaging in ‘unethical practices’ and ‘complicit exploitation of an unfair system’ (see [2006] Gazette, 12 October, 1).



Meanwhile, Gulay Mehmet, chairman of Law Society’s immigration law committee, says there are ‘inordinate’ delays in parts of the system, while new developments are never given time to bed in before major pieces of legislation are introduced.



The lurid antics of the two immigration judges caught up in the recent blackmail trial of their Brazilian cleaner also put the immigration system in the headlines. However, this was just an ‘irrelevant distraction’, says one practitioner. ILPA chairman Chris Randall says there is no sign of any fallout from their exploits, ‘although it hasn’t improved the image of the sector’.



But it is the Carter proposals that are uppermost on practitioners’ minds. They have already had to adapt to a raft of changes, including accreditation exams and the threat of losing fast-track contracts if they do not succeed in 40% of asylum appeals. Will Carter prove the final straw?



The Lord Chancellor raised some hope when he announced a ‘substantial rethink’ of the level of the fixed fees which are controversially replacing hourly rates – while stressing there would be no more money – at the recent Law Society annual conference. He also said he would reconsider the reform timetable, scheduled to start in April 2007. However, the Department for Constitutional Affairs (DCA) has since been at pains to stress that Lord Falconer was talking ‘purely’ about family cases. A spokesman says: ‘He thought some of the points that had been made about family cases were compelling enough for a rethink, but that does not include wider civil or immigration issues. Those will be considered when we look at the 2,500-plus responses we have received to the consultation process. There is no date for our response but it will be sooner rather than later.’



Asked if policy-makers at the LSC are concerned about the depth of feeling among immigration solicitors, Paul Newell, the commission’s head of immigration policy, says the LSC has had ‘constructive’ meetings with practitioners and will take their views into account. ‘The aim of the proposals is to make more efficient and effective use of legal aid resources and not to reduce overall expenditure or cut frontline services to clients,’ he promises. ‘We want to put in place arrangements that ensure that this vulnerable group of clients has access to good quality services, whilst reducing for suppliers some of the bureaucracy of the April 2004 reforms.’



Mr Randall, a solicitor with London firm Bates Wells & Braithwaite, says: ‘If Lord Falconer is prepared to look at aspects of the proposals again, then there are no aspects more in need of reconsideration than the immigration proposals.’ If immigration practitioners do vote with their feet, it will be the second major exodus in recent years. The number of firms plummeted by 40% as a result of changes in 2004 , from 380 to 234 in July 2006.



Wesley Gryk, the Law Society Council member for immigration solicitors, was one of those who stopped doing publicly funded cases last time around, and he fears the Carter proposals will swell that exodus enormously. ‘In all other areas of work where fixed fees are being proposed, the figures being put forward bear some relation to suppliers’ actual historic costs. This is not the case with respect to immigration work, where a sort of “voodoo economics” is being invoked, attributing one-size-fits- all fixed fees to specific stages of cases, without regard to the complexity of the cases concerned.’



Mr Gryk is head of an eponymous three-partner London firm, which works exclusively in UK immigration and nationality law. He is astounded by the proposed threshold for ‘exceptional’ cases. ‘Inexplicably, only if a supplier spends four times the allocated amount of time on a case will they then be able to claim for the actual amount of time spent on it,’ he maintains.



Ms Guedalla, who specialises in asylum cases, says the threshold must be brought down to about 50%. ‘They call it a graduated fee scheme. But calling me Rover doesn’t make me a dog. This is a fixed fee with various add-ons. There is no attempt to graduate it in terms of complexity or number of parties involved.’

She also highlights the ‘scandalous’ issue of interpreting and translating fees being absorbed within the fixed-fee structure. ‘What about the client who puts three-and-a-half inches of Turkish court documents on your desk which need translating?’



For Mr Gryk, the proposals also include the ‘insulting’ suggestion that solicitors should be rewarded with an ‘early resolution’ payment if they manage to get an asylum application dealt with by the Home Office first time around. ‘The suggestion is that, ordinarily, a solicitor would prefer his or her case to be refused and go into the appeal process. This Alice in Wonderland suggestion fails to take into account that it is the Home Office’s own climate of disbelief which means that a very substantial number of asylum cases are only properly considered at the appellate stage.’



Not all firms will lose out under the proposals. Law Society Vice-President and immigration lawyer Andrew Holroyd, senior partner of Liverpool firm Jackson & Canter, says: ‘We are probably one of the gainers out of Carter because, as an out-of-London practice, our averages are probably lower than those we are being offered, so it might result in an increase for us. But the vast majority of immigration work is done in London and they will see a substantial reduction and those figures need to be revamped.’



However, despite the possibility of some gains, he says he can only make his immigration practice pay at present because he does about 40% private client work ‘which just about keeps me afloat’.



On the BID report, which criticised the way some asylum solicitors handle appeals, Mr Randall acknowledges that there remain some poor-quality and unethical providers, though less than there used to be. ‘But it is hard to do good-quality work consistently in the tight time-limits set out in the fast-track scheme.



‘There is a strong argument that you shouldn’t have a merits test with such a fast procedure and that everyone should be represented. Then you wouldn’t have the problem of people being dropped. However, if the authorities really care about the quality of decision-making, then the time-limits should be relaxed.’



But, at present, he is despondent about the way the DCA and LSC view immigration. A ‘refugee’ from the system, after 17 years of doing publicly funded work, he says: ‘I have never seen such a big threat to immigration practitioners. The junior immigration bar will struggle in the new world and it is possibly the death knell for quality immigration advice.’



Grania Langdon-Down is a freelance journalist