Legal aid: 'no merit, no fee' payment system will make many cases 'untenable'

Immigration solicitors have slammed as 'perverse' government claims that the 'no merit, no fee' legal aid payment system for asylum appeals will only mean a financial gamble for 'lawyers who pursue weak cases'.


Lawyers said the rules - which came into force in April - will make it 'untenable' for them to appeal many legitimate cases, and are already leading to an increase in the number of litigants-in-person.


Under the rules, solicitors are only paid for appeal cases if the judge considers the case had a 'significant' prospect of being overturned at the outset. However, in its recently published response to criticisms contained in a constitutional affairs select committee report - which expressed concern over the negative impact on suppliers - the government claimed that lawyers who accurately assess a case's prospects stand to 'benefit financially' through the 35% uplift available.


Wesley Gryk, Law Society Council member for immigration, said: 'The government's response is perverse. To suggest that a supplier should be "maximising their profits" in this way is in effect to suggest that access to justice should be denied to those individual appellants who have a case which - while serious and involving potential breaches of fundamental human rights - is not a "sure thing".'


Alison Stanley, chairwoman of the Law Society's immigration law committee, said: 'From what lawyers have said to me, they cannot afford to take on many [appeal] cases that may not succeed because the profit margins are already too tight. They are already working right to the edge, and taking on cases that they may not be paid for is untenable.


'If you are 100% certain that the immigration judge has made an error, then you will appeal. But if you think it's borderline but there is an argument, how many of those type of appeals can you take on before your partners start querying where the fees are? This is not just going to affect law firms but also the not-for-profit sector, which is under contract in the same way.'


She added: 'I have already been told by three immigration judges that they have noticed an increase in unrepresented appellants.'


Law Society chief executive Janet Paraskeva urged the government to reconsider its policy. She added: 'It is putting access to justice and lives at risk by adding further uncertainty to the appeals process.'