Immigration solicitors this week slated government plans to introduce a retrospective payment regime for legal aid funding in asylum and immigration appeal cases, warning that many solicitors will be prevented from bringing appeals.

Solicitors said the proposals - where lawyers will only be paid for appeals that lose if they had at least a 'significant' chance of success at the outset - could cause the courts to be blocked by litigants-in-person.


The government consultation relates to appeals from the new Asylum & Immigration Tribunal (AIT) that will come into force in April next year. Appeals against AIT decisions on points of law will be sent to the High Court, where the judge can send it back for reconsideration. At the end of the case, the tribunal judge will make a retrospective decision on whether legal aid funding should be granted based on the prospects of success at the time the application was made.


The consultation will consider whether this test should require 'significant' or 'very strong' prospects of success. Solicitors would receive a premium to mitigate risk.


Alison Stanley, chairwoman of the Law Society's immigration law committee, said: 'The judge will be asked to do an extraordinary feat of mental gymnastics, putting himself in the position of the solicitor at the time of the application even if he has rejected the case.


'It will also lead to people who cannot find legal representation putting in unrepresented applications.'


She added: 'From April, anyone offering immigration advice through legal aid will have to be accredited - and it is a stiff exam - and we still have cost compliance auditing by the Legal Services Commission. The combination of these should already be enough to bring immigration legal aid practitioners into line with our colleagues in other areas.'


Legal Aid Practitioners Group director Richard Miller said many firms will be unable to work under the new structure. He said: 'The bar is too high - a "significant" chance of success means at least 60-65%. That would exclude all 50/50 cases, half of which win.'


Chris Randall, executive committee member of the Immigration Law Practitioners Association said: 'We are concerned about the further level of uncertainty this brings.'


Baroness Ashton, minister for the asylum appeal system, said the proposals would prevent the system being overwhelmed by weak challenges.



See Editorial