Refugee Council client experiences in the asylum process

Transcription

1 Refugee Council client experiences in the asylum process November 2010 Richard Lumley Protection Adviser Page 1 of 18

2 About the Refugee Council The Refugee Council is a human rights charity, independent of government, which works to ensure that refugees are given the protection they need, that they are treated with respect and understanding, and that they have the same rights, opportunities and responsibilities as other members of our society. We achieve this mission by: supporting refugees and working with them as they build a new life speaking up for refugees and ensuring that refugees themselves have a strong voice in all areas of UK life building links with people from across our society to increase mutual understanding of refugees making the case for a fair and just asylum system taking a leading role in helping to build up a vibrant, sustainable and successful refugee sector in the UK and internationally Background In March 2007, a new system for dealing with asylum applications, the New Asylum Model (NAM), became fully operational. The Refugee Council welcomed many aspects of the new system, in particular the fact that there would be a single Case Owner responsible for each asylum case so it would be clear who was dealing with an asylum claim from start to finish. However, at the time the NAM was introduced we also had some concerns, in particular the fact that the timescales for processing claims were rapid and target driven so that asylum seekers would struggle to get access to quality legal advice in time for them to prepare for and fully present their case at the asylum interview. In order to get some feedback from our clients about their experiences, we conducted a survey of 110 asylum seekers cases in August and September The survey report can be viewed on the Refugee Council website. 1 Our findings showed that at the time the Case Owner system was not as effective as we had hoped; that there were indeed problems of asylum seekers not gaining access to legal advice prior to the substantive interview; and that there were additional problems in the process, for example with issues such as reporting. We have now repeated the research in order to see if things have changed and improved. Methodology For this new research survey, we amended the questionnaire to make it simpler, concentrating on the areas that had been the source of concern in the previous report, namely access to Case Owners, speed of processing, access to legal advice, reporting and interpreting. The questions can be seen in the Appendix. To limit the amount of time it would take our advice workers to complete the questionnaire, volunteers were briefed about the purpose of the research, and the context, and they then conducted the data collection directly from clients waiting to be seen in the reception areas in our One Stop Services. (OSS) 2 52 questionnaires were completed during the month of June 2010, reflecting the volunteer resources 1 NAM Monitoring January These are our basic front line advice services where refugees can seek advice. Page 2 of 18

3 available at the time. 31 of the 52 forms were completed in our Brixton office, the others in our OSS in West Midlands and Yorkshire and Humberside. The forms were completed by the volunteers by interviewing the client, using an interpreter where necessary. No selection criteria were used other than clients being willing to talk. As far as possible we have retained the client s actual words. Profile of respondents The only criteria for including people were that they were NAM cases (i.e. had applied for asylum after 5 th March 2007) and that they had had already had their substantive asylum interview. The sample contained 6 cases who had applied for asylum in 2007, 11 in 2008, 12 in 2009 and 23 in Of the 52 clients: 42 were aged between 18 and 40 (81%) 27 (52%) were men; 25 (48%) were women They came from 24 different countries 29 needed an interpreter (55%) 12 had responsibility for child care (23%) This suggests that our sample is broadly representative of asylum applications overall. In % of asylum applicants were aged between 18 and 40, 33% of them were women and, of supported cases, 24% had families with children. Findings 1. Case Ownership The fact that within the new system people would have an identifiable Case Owner who would be responsible for their case throughout was welcomed by the Refugee Council as a positive development when the NAM was introduced. We therefore asked people if they knew who their Case Owner was and asked about their experiences in dealing with the process. Yes No Do you know who your Case Owner is? 34 (65%) 18 (35%) Do you have your Case Owner s details in writing? 28 (54%) 24 (46%) Have you been able to contact your Case Owner directly? 11 (21%) 26 (50%) 3 This is how people described their experiences: Any contact has been through my solicitor. I'm not sure who it is. But only managed to speak to them once. Usually speak to someone else, but they are not so 3 Not all clients answered all of the questions. The per centages given are of the whole sample and therefore do not always total 100%. Page 3 of 18

4 helpful. Have tried on lots of occasions to get contact details as would find this very helpful but have not been able to get details. Have problem to contact UKBA 4 because I don t have number to call and whom do I contact? I have not been told directly who my Case Owner is but there is a number and a name in a letter that might be the Case Owner. I do not know what the problem is as a result I have been waiting for months to hear from the Home Office I don't have their number - I always heard by letter including the decision to refuse me. I sent an about the rejection from the Tribunal and I never received a response. So, I'm not sure if he's still my caseworker or if the details I have are correct. I tried but failed to get through to her. I called her but the person on the other end didn't pass me through to her. They kept asking me how they could help me instead. I think that the name that I see on the letters from UKBA are my case owner but I have never been told directly whether this is the case. I am unsure about whether I have had more than one case owner as it is all done through my solicitor. Discussion: When we asked 52 people to name their Case Owner 18 were unable to do so. During the data collection there were occurrences of people, on being asked if they could name their Case Owner, going through a pile of papers until they found a piece of paper with a name on it and asking is this who you mean? The responses listed above reflect that respondents were unclear who their Case Owner was, were unable to contact their Case Owner, or only dealt with them via their legal representative. The purpose of the Case Owner approach was that there would be one UKBA official dealing with the case throughout the asylum process whom an asylum seeker and their legal representative could speak to and who would establish a rapport with the asylum seeker. One implicit benefit from this was that a level of trust and understanding between UKBA and the asylum seeker would develop that would make the whole process less adversarial and, in the event of an adverse outcome, would mean the asylum seeker would recognise that their claim had been fairly and fully considered. In practice, much of the work on asylum claims is delegated by the Case Owner to other UKBA colleagues. This mainly occurs at the first contact, when the asylum system is explained to the applicant, and the appeal when UKBA s initial asylum decision is being defended. This means that the interaction of the individual with UKBA is similar to the previous system whereby the asylum seeker would know that a number of officials were dealing with their case but were not sure ultimately who was doing what. This deviation from the original NAM model was observed by the National Audit Office (NAO) in its report of The NAO noted: 4 Prior to April 2008 the UK Border Agency (UKBA) was known as the Border and Immigration Agency (BIA from April 2007). At the introduction of NAM in March 2007 it was the Immigration and Nationality Directorate (IND). For simplicity UKBA is used throughout this report. 5 See Management of Asylum Applications by the UK Border Agency NAO 2009 P Page 4 of 18

5 Whilst this change to the model as originally envisaged may be in part because of the increase in Case Owners workload, it is also a more efficient use of resources. Importantly, the Case Owner still remains responsible for the case and for ensuring that each action and event occurs. However, the Refugee Council is concerned that having several officials working on an asylum seekers claim results in a failure thereby to establish a level of rapport between the asylum seeker and the Case Owner which can then form the basis of trust and understanding. This effect was noted by the Independent Chief Inspector of UKBA in his recent report on the asylum system. 6 He found that various elements of the Case Owner role were carried out differently in different regions with varying amounts of delegation. More significantly from the point of view of our own findings he observed: All teams had clear targets and processes designed to contribute towards the national conclusion rate target. Case Owners in all regions were required to deliver a number of key events, which were actions considered critical to the conclusion of a case. These events consisted of conducting an asylum interview, issuing a decision; and, in some, but not all regions, presenting a case at an appeal hearing. We found that achievement of these key events was closely monitored by managers and reflected in each individual s Performance Development Review (PDR). However, we noted that other actions undertaken by Case Owners, such as responding to telephone enquiries from an applicant or their representative were not measured as key events and not measured specifically in staff appraisals despite the amount of time this took. 7 It does not appear that the Case Owner approach is achieving the levels of contact with asylum seekers that UKBA had hoped for. This may in part explain why UKBA has found it so difficult to engage with people who are at the end of the asylum process who have had a negative decision and whom it now believes should return to their countries of origin. Recommendation: The Case Owner system should be reviewed to ensure that the original benefits intended may be achieved. The principle of closer personal contact leading to the asylum seeker being better informed is a good one and seems to be been lost. Recommendation: The first contact interview should be made more effective so that people are made more aware of what to expect. Case Owners should use this opportunity to ensure that applicants will be able to actually see their legal representative before their substantive interview, clarify their precise interpreting needs, establish any childcare requirements and to make them aware of the possibility of assistance with costs for travel for Reporting. 2. Speed of procedure 6 See Independent Chief Inspector UKBA 2010 Asylum: Getting the Balance Right? A Thematic Inspection: July November Ibid Paras 1.7 and 1.8 Page 5 of 18

6 Another concerning finding from our previous research and from the experiences of our staff in our One Stop Services has been that the UKBA s preoccupation with targets on concluding cases leads to people being required to attend their substantive interview without having adequate time to prepare for it. 8 We asked people if they felt they had enough time to discuss their case and obtain any necessary documentation to substantiate their claim and if not what the effect of this was. Do you feel you and/or your representative had enough time to get evidence and to discuss your case? Yes 29 (56%) No 18 (34%) No answer 5 (10%) Why was there not enough time? I didn't really think about the importance of gathering evidence. Priority was finding a safe country. I did not get a proper lawyer until after substantive interview I did not have time to consult a lawyer I did not have a legal representative at this time. I only met the lawyer the same day as the interview - we only had lunch time to go through everything. I can't remember when I was interviewed. I didn't get any advice before the interview and I was just scared. I wanted to get evidence from Medical Justice about my situation but there was not enough time I was panicked. I was shocked and I was confused. It was a complicated situation. Moneywise I would be charged for each time I spent with the legal representative. I do not have money. My baby was due on 9th Feb and I told them about this in my pre-interview and sent evidence but still they booked the appointment for that day. I tried to get it postponed and got no answer. As it was the baby came early and I was able to go. Our Case Owner said it is up to us whether we get legal advice. I had just given birth and was seen straight away afterwards which didn't give much time. It was too short notice, as I had to travel from Leeds to London to see my legal representative, therefore they could not compile anything substantial on physical health problems, thus weak evidence. UKBA gave me a solicitor who used to live very far from where I lived. I hadn't money for transport. We didn't have enough time but it was still OK. We probably needed more time to gather evidence. 8 At the time of the research UKBA had an eventual target of completing 90% of cases within 6 months but this target has now ended. The Government is now carrying out an Asylum Improvement Project, one aim of which is the speeding up the decision making process. Page 6 of 18

7 Discussion: Although the people we saw generally did have some time to collect their thoughts before their substantive interview 9 it seems that they had a problem discussing their case in detail before the actual interview. We know from the Chief Inspector s report that Case Owners are under constant pressure to meet decision making targets 10 and the current Minister has announced his intention to speed up the process of decision making even more. It is essential in this context that people still have sufficient time to prepare themselves for their interview including the opportunity to consult a legal adviser. This was a concern raised in July 2010 when UKBA in Yorkshire and Humberside announced that they were planning to run a pilot scheme to interview people only five days after the submission of their asylum claim, where previously interviews had been conducted after seven days. Even at seven days both Refugee Council staff and the local legal representatives find it difficult to fit in all the necessary arrangements and appointments that are required immediately on arrival in the UK and on moving into Initial Accommodation. Under such time pressure it is far more difficult for asylum seekers to properly prepare for their interview. What effect does rapid processing have? After the interview I was told by UKBA to find a lawyer to help me submit medical evidence. I lost some of my memory because there was so much information to get through in a few hours. I am now due to see Medical Justice shortly. I have never been in contact with him or her and at my first interview I did not have any legal representative. My case was not strongly supported by someone who knows UK laws. I did not have enough time to collate specialist information. My case was refused due to weak evidence on health problems- this evidence I have now got. An alternative approach The Early Access Pilot (known as the Solihull pilot project) was a UKBA pilot project designed to test the effectiveness of ensuring access to legal representatives from the outset. It was also a far more collaborative and interactive approach that allowed dialogue on the requirements of the case and allowed for flexibility on timings. Solihull performed above average in meeting the then six month resolution target by getting the decision right the first time around. 11 This was achieved by ensuring that as much information as possible was available prior to the initial decision where necessary exercising flexibility on processing times. Recommendation: The Solihull approach demonstrated the value of a collaborative working, the early involvement of legal advice and a flexible use of timescales. This approach should be standard practice irrespective of whether the Solihull model has been formally introduced. 9 Of the 41 people who answered the question, nine had been interviewed in under 14 days. Fifteen had been interviewed at between 15 and 28 days whilst 18 had waited more than one month before being interviewed. 10 Independent Chief Inspector UKBA 2010 op cit See the discussion on targets on pages Ibid: see paras of the evaluation of the Solihull pilot which concludes: Key Success Indicator met and exceeded in the Solihull Pilot. There was a significant and sustained improvement in the period when the Solihull Pilot was properly operational. Page 7 of 18

8 3. Reporting As part of the process of contact management asylum seekers are generally asked to present themselves at a reporting centre at a regular time in order to confirm that they continue to be compliant with the asylum process. How often they have to do this will depend on the Case Owner s risk assessment of the inidividual s likelihood of absconding. In the 2007 survey it was clear that people had problems with the distance they were required to travel and the cost of reporting so we asked our clients about this again. How often do you have to report? Weekly 13 (25%) Fortnightly 6 (11%) Monthly 15 (28%) Do not have to 12 (23%) Has this caused you any problems? Ten people commented that they had no problem reporting. However seventeen said they did have problems. 12 said that they needed help with the fare and six of these said they had to borrow money from friends. The other problems are the distance involved in travelling to report and the lack of child care for reporting which means that women had the additional burden and cost of taking children with them. It is difficult to finance. I am relying on other people to cover my travel costs and I am forced to work illegally. I have asked to change it to sign on near my house as now I have to take two trains - it is expensive and I have no support, but they have said I can't change it. I have to borrow money from my cousin to travel. I borrow the fare to get to the Reporting Centre I had to borrow the fare to travel to report from Vauxhall to Croydon. I have to borrow money from friends for the fare It's been stressful because I've got a child and I am pregnant. My husband needs to go in every week. It's difficult because I'm not well. They only gave me transport expenses once. No but it is quite far away and takes nearly two hours to get there. Not a problem so far but it is a long way and I need help with travel costs. Since I now have the baby this is difficult. I would like to report monthly but haven't asked. Some problems travelling with her young baby. Yes I have been certified by the doctor as having difficulty walking, swelling in my legs, arms, bruises, as well as a back problem and post-traumatic stress syndrome, having been tortured at home. I now have trouble walking and I am expected to walk all the way from Stratford to London Bridge, as I have no income support and no money to afford transportation. It is a big problem. I Page 8 of 18

9 have finally got accommodation after two months but I do not know where I will have to report next or how I will get there from my new house. I am also not happy about the fact that I have to queue for hours outside in order to report, often in the cold with a lot of other people and with no shelter. I feel that it is humiliating and frustrating and unnecessary, and that it is against human dignity to do this. Yes - I have had problems getting the fare to travel to report. Yes - it is the other side of London and it's very far away - I have no financial support. I am staying with a friend. Yes - it's hard to fit it in, quite a long way on a bus and a train and I have no childcare. Yes, I am elderly and I has fallen twice on the way and used to have a free bus pass but it was taken from me and I don't know why. Yes- I can t travel there- I have no money, and have to beg to get money to try and go there. Discussion: It is clear that the cost of travel remains an issue which causes hardship to asylum seekers. Entitlement to fares for people reporting was introduced in Section 69 of the Nationality, Immigration and Asylum Act Asylum seekers are entitled to claim their fares if they live over three miles away from the Reporting Centre, except for the first occasion on which they have to report. The three miles is however measured directly on the map irrespective of the potential walk with which asylum seekers may be faced. As the Centre for Social Justice observed in 2008: we have heard of instances where common sense does not prevail. An individual in Newcastle lived within three miles of the reporting centre, but no account was taken for the river that separated the reporting centre from the individual s house. It was, therefore, an 8 mile round trip on foot to be able to get to the centre at the nearest crossing. 12 This entitlement is quite separate from their entitlement to NASS support. 13 Six of those who said they did not have sufficient money to cover the fare for reports also said that it was a long way to travel. We have found that asylum seekers are not made sufficiently aware of their entitlement to claim for travel to report. Recommendation: At the point of initial contact asylum seekers should be given information which explains their entitlement to assistance with travel costs. Recommendation: Flexibility should be exercised where the local geography forces requires asylum seekers to walk beyond the three mile threshold. It should also be used where the distance is less than three miles but asylum seekers are pregnant or unwell. 4. Interpreting 12 See Centre for Social Justice December 2008 Asylum Matters: Restoring Trust in the UK Asylum System: P See UKBA Travel expenses for people required to attend regular reporting events Page 9 of 18

10 A significant proportion of the Refugee Council s clients require interpretation so we included questions about their experiences of using an interpreter at their asylum interview. Twenty nine people said they need an interpreter and of these ten expressed concerns: Because of the dialects in Sudan, I sometimes felt that the interpreter had not translated exactly what I had said. I did have an interpreter for the interview, but they had a really strong accent and I couldn't understand them. I had an Iranian interpreter at first and then I had another one who also did not know enough of the language and had to ask a lot of questions and be corrected. I did need an interpreter at the interview - but there was a problem because the translator was from Afghanistan and the language was different. I became very stressed in the interview because I also suffer from severe mental health problems and the translator was not very patient or helpful and it was distressing not to understand. I didn't feel the interpreter was properly translating what I was saying and explaining properly what was happening to me. There was much discussion about what I had said and what should be written down. I knew English so I knew she was not doing a good job I was not happy as he treated me disrespectfully. He was very rude. Mostly yes, but there were some errors. She was rude to me and was questioning what I was saying. She seemed to be sleepy and not paying attention. She seemed angry. The interpreter spoke a different dialect of Tamil so everything became difficult. Discussion These responses indicate two areas of concern: Firstly it appears that some people have problems understanding their interpreter because the interpreter does not use the same dialect as the asylum seeker. This suggests that insufficient care is taken by Case Owners at initial contact to ensure that people are going to be able to understand what is being said to them. Secondly it appears that some interpreters fail to understand what their role in the asylum interview is. We had examples of interpreters discussing with the Case Owner what should be written down, rather than the client s words being recorded and also of interpreters being rude and expressing disapproval at what the client was saying. This clearly does not comply with the UKBA s own guidance and suggests a need to ensure that interpreters are acting professionally and in accordance with the UKBA s Code of Conduct. For example Interpreters must not: embellish what is being said. Your function as an Agency interpreter is to interpret accurately. let your own experience or views get in the way of how you interpret the evidence. show your emotions. The only reactions you should express are those of the interviewee. This may be difficult at times if the account given by the interviewee is upsetting or it is clear that the interviewee is lying. However, body language such as the 'rolling of the eyes' or 'tutting' when an Page 10 of 18

11 account does not appear plausible is not acceptable. The interviewing officer will judge an interviewee's credibility, this is not the role of an interpreter. 14 Recommendation: that the first point of contact between the asylum seeker and their Case Owner should be used to establish exactly what the language requirements are. Recommendation: UKBA should ensure conformity to the Code of Conduct for Interpreters by training and monitoring individual performance. 5. Child care Twelve of the people we interviewed had responsibilities for child care. We asked what arrangements there had been for their children whilst they were in their asylum interview. Eight had needed help which they got from friends or family. Two however had had to take their children to the asylum interview and although fortunately it did not cause a difficulty, because both children slept during the interview, it could have easily not have been the case. We do know from anecdotal evidence that this continues to be a problem. As indicated in section 2, two people had to attend their asylum interview very shortly after having their baby indeed in one case only the premature arrival of the child enabled her to attend the interview on the appointed day. In section 3 we also saw that for some asylum seekers the lack of available childcare was a problem they faced as a result of their reporting requirements. Discussion: There has been considerable campaigning about this issue and UKBA has slowly introduced child care provision. It now exists in five out of six of the UKBA Regions. Currently only London and the South East UKBA Region does not provide child care for substantive interviews and we would urge that they should now follow suit. Recommendation: childcare should routinely be provided in all regions for parents during their substantive asylum interview and for other key events such a reporting. Recommendation: women should never be expected to attend their substantive asylum interview immediately following the birth of a child and there should be clear written guidance on the appropriate use of flexibility to ensure that this does not happen. 6. Access to legal advice It is the view of the Refugee Council that access to high quality legal advice and representation from the outset and throughout the asylum process is a critical part of an effective asylum determination system. We asked people if they had legal advice at their first substantive interview and what their experience had been. 14 See UKBA Central Interpreters Unit: December 2008 Code of Conduct for UKBA Registered Interpreters P4: terview/conductingtheasylumintervie2.pdf?view=binary Page 11 of 18

12 Yes No Did you have a legal representative when you first applied for asylum? 34 (65%) 17 (33%) Did you get legal aid? 30 (58%) 14 (27%) Did you pay cash for legal advice? 11 (34%) 32 (62%) Of the 11 who had paid for legal advice: Four paid between Seven had paid over 500 If you paid cash what was this to pay for? I don t know - probably for opening the file. As I was detained straight from the airport, I did not have a chance to see the lawyer before my case my friend dealt with it. I was cheated by an interpreter claiming to be a lawyer. I complained but nothing ever happened. It was after my appeal was refused in court. My solicitor dropped me. So, I had no option. When I went to see a solicitor, they all wanted money. They were all saying that at this stage, no one would take my case. It's very hard to pay for solicitor costs and now we're at the appeal stage. I've spent less than an hour with my solicitor for the first stage. On appeal, I spent 4-5 hours with my attorney and I was satisfied with her services. Legal representation (but I mainly paid for this before my interview I didn't apply for asylum straight away) To attend the court appeal To obtain the Asylum Card and prepare my case. To represent me to the court. 2,500 to pay for representation, of which 500 to pay for Home Office postal order. The rest was her service fee. When did you first see your legal representative? Before the asylum interview 28 (54%) After the asylum interview 12 (23%) How many times did you see your legal representative? Once 6 (11%) Twice 16 (31%) Three times 5 (10%) Four times 4 ( 8%) Five times 10 (19%) How much time in total did you spend with your first representative? 1-2 hours 28 (54%) 3-4 hours 2 (3%) 5-6 hours 4 (8%) Over 6 hours 7 (13%) Page 12 of 18

13 What did your legal representative do? Did your first legal representative explain how the asylum system works clearly to you and explain how your case was likely to be assessed? Did your first legal representative confirm their advice to you in writing? Yes 26 (50%) 23 (44%) No 17 (33%) 15 (29%) Did your first legal representative make written submissions about you to UKBA? 34 (65%) 2 (3%) Five people replied Don t know to the last question. Do you have any comments or concerns about your legal representative? Twenty two people either said they were very happy with their representative or had no comment. Comments varied from just that they were nice and friendly to the fact that they were contactable and that they kept them informed. Others were less happy. Before he was good, but now he is less helpful and hard to contact. Has not been kept updated about my case. He was not very good at all, very busy, was in London which made it difficult to see him. Did not explain things clearly, and I did not feel any genuine support from him. He would send copies of letters but did not send me any other advice in writing. He's not bad as when I call him, he answers, but I would have liked for him to call me sometimes to explain what has happened, especially because of the language barrier, I need help to understand some of the documents that he sends. It would be preferable for the lawyer to call the client from time to time to check that they understand exactly what is going on. I feel that my first legal representative was a fraud. I don't understand how she is still working. She issues identity cards to make you believe her. My current legal representative is helpful and has been trying to find specialist help and speaking to my case owner. I met with my solicitor only very briefly and I don't think he adequately represented my case. My first appeal was adjourned and the solicitor failed to appear for the final hearing. My lawyer asked me lots of questions and just wrote down the answers but he did not read it back to me. No. But he has seen him for 15 minutes at a time and he has to wait a long time for these appointments. I do not feel that the first lawyer was helpful and now I am looking for another one. Sometimes we have difficulty in getting in contact with our legal representative When I have 1st interview I have paid solicitors my interview day but my solicitor was not there Yes the lawyer refused to answer any of my questions and was unsympathetic to my mental health problems. I felt that the lawyer did not represent my case well and everyone had told me that I had a very good case, but it still failed. Now I have a fresh claim but am struggling to find a lawyer. Page 13 of 18

14 Discussion: There are two obvious issues that arise from these responses: 12 of the 40 people who answered this question said they first saw their legal representative after their asylum interview rather than before. 28 people said they only saw their legal representative in total for one to two hours. It is difficult to accept that these cases have been adequately represented, especially bearing in mind that in a substantial proportion of cases an interpreter was required. The possibility that some legal representatives may take a minimalist view of their role is supported by the findings of the Asylum Appellate Project (AAP) based at the Devon Law Centre. 15 Individual legal representatives are required to conduct a merits test before approving funding for an asylum appeal and if they refuse funding an asylum seeker may appeal to an Independent Funding Adjudicator (IFA). Very few in practice do so. The AAP simply tested this by referring cases routinely to the IFA. Their Second Year Report reveals: The Project has had a total of 45 eligible referrals since its inception in June Of the 45 appeals to the Independent Funding Adjudicator, 38 (84%) were allowed. Moreover, although fewer than two-thirds of those successful before the Independent Funding Adjudicator were then able to find an (alternative) solicitor to represent them in their asylum appeal the reasons for which are discussed below 30% of all eligible asylum seekers seen by the Project obtained some form of leave as a result. Had the Project been able to find legal representatives for all asylum seekers successful before the Independent Funding Adjudicator, it is possible that the number obtaining some form of leave could have been even higher. The project s results are confined to Devon and Cornwall. However, if a similar pattern were to be found across the country, it would suggest that solicitors are wrongly refusing Controlled Legal Representation in over 4 out of every 5 cases and almost a third of all asylum seekers who are refused Controlled Legal Representation have a valid claim to some form of protection. As legal representation makes a significant difference to the outcome of an appeal hearing, the legal aid system as it is currently administered is preventing genuine asylum seekers from obtaining access to justice. The consequences can not be put too lightly: not only is this denying asylum seekers the opportunity to present their case as effectively as possible but, for many, it will result in the dismissal of their claim and their forced return to face persecution or a life of covert and unlawful existence in the UK with all the consequent potential poverty and exploitation. We have referred above to the Early Access Pilot in Solihull. This project ensured that asylum seekers received quality legal advice from the outset, that there was a high degree of co-operation between the Case Owners and legal representatives, including the legal representative s presence at the asylum interview with the right to intervene, and a flexible approach to timing of events to ensure that all possible evidence would be available to inform the first time decision. What was most striking about the Solihull pilot was that it was welcomed by so many parties as improving the asylum process. It performed well in relation to the sixth month target, the legal representatives felt it worked well for them and, critically, the UKBA s own Case Owners were also positive about it. 16 The Legal Services Commission has been planning to roll out the Solihull approach, in 15 Asylum Appellate Project 2009 Second Year Report 16 See Jane Aspden October 2008 Evaluation of the Solihull Pilot for the United Kingdom Border Agency and the Legal Services Commission Page 14 of 18

15 the form of the Early Legal Advice Project (ELAP), to the whole of the Midlands and the East of England Region from November We strongly hope that this improved model will eventually be rolled out throughout the UK. Recommendation: Access to legal advice prior to the substantive interview should be guaranteed and flexibility in the time of interview should be allowed as in the Solihull pilot model. We recommend the Solihull model should be introduced throughout the country so that all asylum seekers can benefit from this approach. Other issues Finally we asked people if they had any general comments about how they felt about how their case had been dealt with. One said he had been treated fairly - not very good, but fairly. Others were less sanguine. All these proceedings are affecting my physical health, particularly my heart and chest, and my wife's mental health. She is five months pregnant. I have already written to my Case Owner about our health problems. I feel that UKBA do not know what they are doing, and that they break their own laws. They have no direction and continually abuse rights. It's the 'blind leading the blind' and I have no faith in the system at all. I have had a lot of problems. I am unable to work or travel and can't study because I have young children and no child care. I am frustrated that my children are not being well looked after and that our living conditions are unsatisfactory. I am frustrated that I cannot vote and often has to go without electricity and water. I feel that the people who make these decisions do not know what it is like to be me. I am concerned about getting access to health care. I did not get enough information at the start of the process and therefore was completely unprepared for my first interview and had no legal advice. I had a problem at the screening interview making myself understood and understanding what they were saying. There was a screen which did not help and I was forced to give yes/no answers to complicated questions. I have been asked to go back to UKBA and I don't know why. I would like my solicitor to come with me but haven't been able to contact him. If I had not had my rights and responsibilities explained by the Refugee Council today, I never would have known. I feel that refugees and asylum seekers MUST be informed about everything as soon as they arrive - for example entitlement to medical care etc. This is important for every asylum seeker to have the best opportunity. In the interview and in the court I was not able to speak myself, my solicitor remained silent, and I was not able to make myself understood. I had a lot of documents but they have taken them all and I do not know how to get them back. This is giving me a lot of trouble with my new claim. I also had trouble getting medication for my mental health problems - and now that my support has ended I need to move and find a new GP for my problems and I need to be in London so that I can continue to access the drug and alcohol team. It is a real problem that my GP never has an interpreter available. Page 15 of 18

16 Lack of information is a big problem. Lack of contact and updates is a problem. Legal representative doesn't have time to help me. My health has deteriorated because I am homeless and destitute. I barely feel human any more. My s4 application was first submitted 6 weeks ago marked 'Priority A' my family situation is not being considered by UKBA Nobody has explained to me how things work - I have had my asylum interview without understanding at all how things work and without legal advice. I was told by friends I could not go to the doctor even though I was in a lot of pain - I didn't know I could. The case has been very difficult so far- separated from family and children, homeless. I am very thankful to churches and charities for their support ie. with food. But I am very depressed and trying to be hopeful. My faith is very important to me and is keeping me going, but the reality of my case and my situation is very hard. They made their decision after only four days and I do not believe they could have given full consideration to my case. Too much uncertainty about how long it's going to take. Frustrating because some people who applied after me have had their cases settled before me, and also that I want to work and not use public funds, but I still have to wait for a decision. These statements speak for themselves and illustrate the common problems and concerns that the Refugee Council encounters on a daily basis. Summary of recommendations Recommendation: The Case Owner system should be reviewed to ensure that the original benefits intended may be achieved. The principle of closer personal contact leading to the asylum seeker being better informed is a good one and seems to be been lost. Recommendation: The first contact interview should be made more effective so that people are made more aware of what to expect. Case Owners should use this opportunity to ensure that applicants will be able to actually see their legal representative before their substantive interview, clarify their precise interpreting needs, ascertain any childcare requirements and to make them aware of the possibility of assistance with costs for travel for Reporting. Recommendation: The Solihull approach demonstrated the value of a collaborative working, the early involvement of legal advice and a flexible use of timescales. This approach should be standard practice irrespective of whether the Solihull model has been formally introduced. Recommendation: At the point of initial contact asylum seekers should be given information which explains their entitlement to assistance with travel costs. Recommendation: Flexibility should be exercised where the local geography forces requires asylum seekers to walk beyond the three mile threshold. It should also be used where the distance is less than three miles but people asylum seekers are pregnant or unwell. Recommendation: That the first point of contact between the asylum seeker and their Case Owner should be used to establish exactly what the language requirements are. Recommendation: UKBA should ensure conformity to the Code of Conduct for Interpreters by training and monitoring individual performance. Page 16 of 18

17 Recommendation: Childcare should routinely be provided in all regions for parents during their substantive asylum interview and for other key events such a Reporting. Recommendation: Women should never be expected to attend their substantive asylum interview immediately following the birth of a child and there should be clear written guidance on the appropriate use of flexibility to ensure that this does not happen. Recommendation: Women should never be expected to attend their substantive asylum interview immediately following the birth of a child and there should be clear written guidance on the appropriate use of flexibility to ensure that this does not happen. Recommendation: Access to legal advice prior to the substantive interview should be guaranteed and flexibility in the time of interview be allowed as in the Solihull pilot model. We recommend the Solihull model should be introduced throughout the country so that all asylum seekers can benefit from this approach. Page 17 of 18

18 Appendix Refugee Council client experiences in the asylum process 2010 Questionnaire 1. When did you apply for asylum? 2. What age are you? 3. Sex 4. Nationality 5. Do you know who your UKBA Case Owner is? 6. Do you have your UKBA Case Owner's contact details in writing? 7. Have you been able to contact your UKBA Case Owner directly? 8. Have you had more than one UKBA Case Owner? 9. When was your substantive asylum interview? 10. Do you feel you and/or your legal representative had enough time to get evidence and to discuss your case? 11. How often do you have to report? 12. Has this caused you any problems? 13. Do you need an interpreter in order to be interviewed in English? 14. Were you happy with the quality of interpreting for your asylum interview? 15. Do you have young children in your care in the UK? 16. If yes did you require help with child care during your asylum interview? 17. If yes did you get the help you needed? 18. Did you have a legal representative when you first applied for asylum? 19. Did you know you were entitled to help to pay for legal representation before you arrived? 20. How did you find your legal adviser? 21. Did you get legal aid to help pay for your first legal representative? 22. Have you paid out money yourself for legal help? 23. When did you first see your legal representative - before or after your asylum interview? 24. How many times did you see your first legal representative? 25. How much time in total did you spend with your first legal representative? 26. Did your first legal adviser explain how the asylum system works clearly to you and explain how your case was likely to be assessed? 27. Did your first legal representative confirm their advice to you in writing? 28. Did your first legal representative make written submissions about you to UKBA? 29. Have you tried to appeal a refusal of asylum? 30. If yes were you, or will you be, legally represented by a publically funded lawyer? 31. If you were formally refused legal aid funding under the merits test were you advised of your right of appeal against the refusal of funding? 32. Do you have any comments or concerns about your legal representative? 33. Anything to add? Page 18 of 18