The government has been warned that the immigration legal aid system needs systemic change – as well as a hike in hourly rates – if plans to deal with the migrant crisis are going to work.
The Ministry of Justice has proposed to raise hourly rates by up to 15% for work under the Illegal Migration Act, but firms expected to pick up the increased demand have said this is unworkable and inadequate.
A joint letter to the lord chancellor from 66 legal aid providers, representing around 60% of the immigration and asylum advice sector, say the system is already at capacity and will not cope with any unfunded significant increase in work.
The signatories point out that an estimated 25,000 of all asylum seekers in the UK do not have legal representation and the number of actual immigration and asylum matter starts in 2021/22 was around 50% of those allocated to providers for that year. Since 2021/22, 25 legal aid providers have terminated their contract with the lord chancellor, reducing capacity by 5,390 matter starts.
Into this will be added the expected extra work under the Illegal Migration Act, which received royal assent last month.
Almost 46,000 people arrived in the UK on small boats in 2022, and under the legislation the Home Office would have the power to detain these people upon arrival and make immediate arrangements for their removal. Individuals have eight days to challenge their removal and if that is not successful they will require legal aid representation to appeal decisions, possibly from abroad.
‘Work under the IMA will place an unsustainable burden on providers who are already at capacity,’ says the practitioners’ letter. ‘To undertake the work, providers must recruit significant numbers of new staff, train them, and ensure that they have the necessary Law Society immigration and asylum law accreditation. Moreover, the urgency of the work means that if a fee-earner takes on an IMA matter, they will in essence have to drop all other work at least until representations are made to challenge the removal notice.’
To ensure migrants can access lawyers and to make legal aid work sustainable, the letter recommends:
- Hourly rates increased to £100 for all legal aid controlled work, in line with inflation since 1996
- A 50% uplift on work undertaken under the IMA on top of the inflationary increase
- Payments on account made by the Legal Aid Agency every three months
- Enhanced rates where work is of exceptional competence, skill, expertise, speed, circumstances or complexity
- Cost of accreditation for casework assistants and senior caseworkers funded in full by the MoJ.
Without such changes, practitioners warn, they will be forced to continue to reduce the amount of controlled work taken on, and will be unable to take on work under the IMA.
But the prospect of the government offering a massive pay increase to legal aid practitioners in the current climate would appear remote. Since a Mail investigation into immigration lawyers appearing to tell clients to lie about their asylum claims – leading to three firms being shut down – ministers have increased their rhetoric around lawyers who they blame for thwarting their plans. The latest government intervention came today as home secretary Suella Braverman unveiled a task force to look at the way intelligence is gathered on lawyers.
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