Immigration legal aid consultation criticised for lack of data

A government consultation on a digital system that immigration legal aid practitioners were required to use when the pandemic struck has been criticised for lacking crucial data to help inform responses.

The Ministry of Justice is currently seeking evidence on the impact of the online system for lodging and progressing appeals in the First-Tier Tribunal (immigration and asylum chambers) on legal aid fees, which practitioners have been required to use since March 2020. Work is paid on an hourly rate basis.

The call for evidence, which closes on 2 December, was the subject of the latest Young Legal Aid Lawyers virtual meeting.

Duncan Lewis solicitor Jeremy Bloom described the call for evidence as ‘another one of those consultations where we have been given virtually no information on which to base our response’. 

'The starting point for any consultation response has to be “you need to provide us with all the data in how this is working in practice otherwise we cannot properly tell you what we think about it”,’ Bloom said.

Immigration solicitor Sonia Lenegan gave examples of data that would be helpful, such as the proportion of cases that have been reviewed by the Home Office under the new procedure and the percentage of appeals that have been withdrawn.

Barrister Zoe Bantleman, legal director at the Immigration Law Practitioners Association, expressed concern over a distinction that the call for evidence appeared to be drawing between asylum and non-asylum immigration cases and appeals. 

The call for evidence asks respondents to describe whether an appeal skeleton argument under the online system differs between asylum and non-asylum immigration cases. It also asks how long – in hours – an appeal skeleton argument takes in both types of cases and examples.

Bantleman said it could be ‘quite dangerous’ to provide specific hours as several factors could make one appeal skeleton argument more complex than another, such as the size of the bundle, if it is a fresh claim, the history of the case, and the experience of the representative preparing the case.

Cost was another concern. Due to the way the ‘stitched bundles’ work in the online system, Bantleman said practitioners often need to use more than one device. ‘For young practitioners working at the legal aid bar, it might be much less possible to afford those multiple devices,’ she said.

Dr Jo Wilding, a barrister at Garden Court Chambers, suggested practitioners argue for the digital system to be monitored a little while longer, followed by a further consultation.

The Ministry of Justice told the Gazette that, alongside the call for evidence, it has surveyed practitioners with experience of the online system to understand how much time each stage takes and how that differs from the old system. The department has also been looking at Legal Aid Agency billing data, which it has compared to billing under the previous system.

The Gazette has requested a copy of the survey’s findings.