Immigration solicitors are reeling from new accreditation exams for publicly-funded work and they fear that a controversial costs regime will increase the exodus of lawyers leaving this field, reports Jon Robins

‘Ihaven’t sat an exam for 35 years and the whole experience was incredibly stressful because my future depended on passing it,’ says Ben Hoare, of Sunderland immigration firm Ben Hoare & Co, after coming up against the controversial new accreditation exams for publicly funded immigration work.


From April, it will be compulsory for solicitors to have passed the examinations, devised by the Legal Services Commission (LSC) and the Law Society, to advise clients on legal aid. Mr Hoare passed three of the exams – scoring an excellent 75% in the interview part – but failed the second three-hour written exam by just three marks. He is now resitting. ‘I feel demoralised, humiliated and it’s had a real effect on my self-esteem,’ he says. ‘I am the senior guy in the firm and to me it’s appalling that I’ve failed.’


Peirce: 'work is incredibly stressful'

While immigration lawyers have long been tabloid bogeymen – usually portrayed as shadowy figures ‘touting for work’ at the dockside or as ‘asylum fat-cat millionaires’ – it is increasingly difficult to reconcile those caricatures with the recent exodus of lawyers, such as the immigration teams at well-known practices such as Winstanley Burgess and Coker Vis in London. London and Essex firm Edwards Duthie joined the list earlier this month, shutting down its seven-lawyer department.

‘Accreditation’ now appears to be the latest in a list of compelling reasons for lawyers to quit.


Those practitioners who want to qualify before April have one last shot to take the exams this month. Some have simply opted not to sit it. ‘The volume of work in my current case load does not justify the time involved in, and the cost of going through, the new accreditation scheme,’ wrote Gary Leonard, of Southampton firm Leonard & Co, in the Legal Aid Practitioner Group’s (LAPG) December newsletter.



After 20 years, Mr Leonard will hang his hat up next month. ‘I suspect that my withdrawal is only part of a much wider loss of experienced lawyers from publicly funded work,’ he says. ‘Whether this is the intention of the LSC it is difficult to tell.’ Wesley Gryk, newly elected Law Society Council member for immigration, also reported that ‘large numbers of solicitors’ were leaving immigration work because they were failing to hit the mark (see [2005] Gazette, 20 January, 3).



The LAPG is also concerned that accreditation is turning the steady stream of senior asylum lawyers quitting the field into a flood. ‘Some people find it so insulting and are giving up on that basis, and there are others for whom the economic pressure and costs of doing exams and the time to prepare training to get through examinations just isn’t worth it,’ says director Richard Miller.


He sees accreditation as the latest in a line of hurdles that immigration lawyers have had placed in their path. Over the past 12 months, there was the brouhaha over plans to cap asylum advice at five hours as well as the end of stage billing, where practitioners claim for costs at stages of a case. The old system was first scrapped and then amended so there are now fewer opportunities to bill the LSC which, Mr Miller reckons, means that ‘cash flow has been severely damaged’. One firm reports that its billing has dropped from £75,000 a month to £16,000 a month.


Last year was ‘horrendous’ in immigration law, reports Jackie Peirce, head of immigration and asylum at London firm Glazer Delmar and, as a result, two solicitors are voluntarily leaving her department. ‘Doing this kind of work on legal aid is incredibly stressful anyway because clients have had terrible things happen to them,’ she says.


‘At the same time, lawyers are dealing with an incommunicative Home Office and a judicial system that constantly throws up bad decisions, which all adds to the stress and then people walk away.’ The firm is also losing an asylum case worker with 14 years’ experience who does not want to take the accreditation route because ‘he isn’t interested in being a general immigration practitioner’.


The April deadline for accreditation also marks the introduction of the controversial costs regime for the new Asylum and Immigration Tribunal. Decisions will only be made retrospectively about whether legal aid should be granted for appeals. The Law Society has argued that this amounts to a ‘legal aid lottery’ that means that people with good cases would not be able to appeal. It also fears that solicitors will be driven away from publicly funded asylum work because of the risk that they might not be paid.


The fact that immigration and asylum have been singled out for a special version of accreditation troubles the LAPG. ‘There have been complaints that it is “racist” when [such a form of accreditation] is not a requirement in any other field and I can understand those concerns,’ says Mr Miller. ‘I can equally understand the fact immigration is an area which has given rise to problems because of poor-quality work and dishonesty.’ The LAPG is particularly concerned that this form of accreditation became ‘mandatory before anyone knew what it even looked like’.


The cost to cash-starved firms of training staff to take examinations has been considerable. Matthew Davies, a partner at north London firm Wilson & Co and a member of the Immigration Law Practitioners Association’s executive committee, reckons his firm had spent £6,500 on training to put 18 staff through the exams, with a further £40,000 in lost chargeable hours. The LSC will only reimburse the specific cost of sitting the exams if candidates pass.


Alison Stanley, chairwoman of the Law Society’s immigration law committee, recently told the Gazette that her personal view was that ‘the agony of a three-hour exam’ was not appropriate for senior practitioners. The pressure on lawyers, especially those who have been practising for a long time, has been huge. ‘I am in my 50s with a young family and the pressure of that responsibility together with that from my partnership and my own sense of personal integrity has been immense,’ says one lawyer. ‘Then there’s the embarrassment of failing – that has been awful.’


He was not prepared to go on the record – the ‘ruinous’ impact of failing the test might have on his business and also because his fellow partners did not know.


Crispin Passmore, director of the Community Legal Service at the LSC, points out that accreditation will ‘ensure that often vulnerable asylum seekers and immigrants receive good quality advice’. The first round of exams was held in September 2004 and the pass rate for the toughest level, which around three-quarters of candidates took, was close to 70%. There are now more than 600 advisers accredited.


‘Whilst we understand the pressures that the accreditation scheme places on solicitors and paralegals, we are confident that it is not only the right thing to be doing, but that it has the support of the vast majority of those advising and representing asylum seekers and immigrants,’ Mr Passmore says. He is ‘surprised’ that Ms Stanley is critical of a scheme that, he points out, is ‘jointly owned’ by the Law Society.


Law Society chief executive Janet Paraskeva says the scheme is an example of the Society regulating effectively to ensure that clients can find advisers who are competent to help them. She explains: ‘The new accreditation scheme is designed to help advisers demonstrate their competence in this area. It will also highlight any weaknesses which can be remedied.


‘The new scheme is flexible rather than complicated. There are various levels of accreditation, which recognise that advisers take on work of varying complexity. The lower level enables people to enter this field of work and to progress throughout their career.’


But it is not just private practice that has reservations about accreditation. ‘We have no objection to the LSC being concerned about the quality of representation,’ comments Deri Hughes-Roberts, London regional manager at the Refugee Legal Centre (RLC). ‘But we aren’t sure this is the best way of going about it.’


He argues that the use of much stricter cost auditing to weed out the bad and the outright dodgy has made ‘impressive inroads’. ‘That begs a question as to whether accreditation was necessary when the LSC has tools to continue to deal effectively with these issues,’ he adds.


The RLC has more than 150 lawyers who are in the process of being trained in its offices throughout the country – according to their analysis ‘at the very least 33%’ of their candidates have failed.


For the RLC and other not-for-profit advice agencies, there are particular problems with accreditation – in particular, what work can advisers be paid for pending qualification. There are three levels of accreditation – level 1 (accredited case worker), level 2 (senior case worker) and level three (advanced case worker). ‘Until people are accredited at level 2, you can’t charge under a LSC contract for time spent doing advocacy work,’ Mr Hughes-Roberts says. It affects the RLC’s ability to hit its targets under its not-for-profit contract with the commission. ‘Then the LSC has the power to claw back the appropriate level of funding,’ Mr Hughes-Roberts says. ‘This could affect our income by up to 25% – and that is a substantial problem.’ The RLC is currently talking to the LSC about this.


Mr Hoare reckons that many of his colleagues in the north-east have failed the accreditation exam and that will mean vulnerable clients will be left high and dry. ‘There’s going to be a complete legal advice desert all the way up the north-east coast now,’ he predicts. It may not be the only one.


Jon Robins is a freelance journalist