THE PROPOSED CHANGES TO LEGAL AID AND WHAT THEY COULD MEAN FOR MIGRANTS ACCESS TO JUSTICE

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1 THE PROPOSED CHANGES TO LEGAL AID AND WHAT THEY COULD MEAN FOR MIGRANTS ACCESS TO JUSTICE Summary March 2011 The Ministry of Justice has plans to substantially cut Legal aid, the public funding that aims to ensure that everybody can have access to legal advice and representation. Under these proposals, the vast majority immigration cases that are not asylum related will be ineligible for Legal Aid funding, as will be other areas of law such as employment, housing and family law. If these proposals go ahead, the changes will have a significant impact on migrants and asylum seekers who need advice and on the groups and organisations that support them. This briefing outlines the impact that the proposed changes could have on migrants, asylum seekers and the community organisations supporting them and provides recommendations on what people can do to oppose the changes. What is Legal Aid? Legal aid is funding provided by the government to give access to legal advice and representation to individuals who cannot afford it. Although reforms in recent years have had an impact on provision, Legal aid continues to ensure that all people in the UK can have access to justice on a broad range of issues. Legal aid funds different types of advice and representation, including: initial advice and assistance with legal problems a solicitor who can speak on someone s behalf at court hearings without formally representing them help and advice on family disputes, including assistance with family mediation legal representation in court proceedings. Eligibility for legal aid depends on different criteria, including the type of case and the financial circumstances of a client. Legal aid advice and representation are offered by providers who hold contracts with the Legal Services Commission, the body which manages the legal aid budget. Contract holders include solicitors firms and not-for-profit legal advice centres including many Community Law Centres and Citizens Advice Bureaux. Legal aid funds a wide variety of cases in different areas of law. One of the areas funded is immigration and asylum cases. Other important areas of law for people who receive legal aid funding include employment, education, family, and housing issues.

2 Why is accessing good advice important for migrants? Immigration and asylum law is complex and advice in this area can only be provided by regulated advisors. Migrants with scarce resources often depend on legal aid to receive advice on issues around their immigration process. Legal aid is vital for migrants and asylum seekers to be able to challenge poor decisions made by the UK Border Agency. Immigration and asylum appeals suggest that there are grounds to challenge a significant proportion of negative decisions by UKBA in court. Legal advice is important to ensure that migrants have this option available. In 2009, 37% of appeals regarding Home Office immigration and asylum decisions were allowed. Depending on the type of case, the success rate can be significantly higher: 47% of in-country non-asylum immigration appeals, for example, were successful in the same year. For migrants, as for the rest of the population, it is also important to have access to good quality advice and representation on issues such as employment, education and housing. Advice can often lead to solving problems without having to go to court. There is evidence that people who access advice from the type of organisations that have legal aid contracts are more likely to solve their cases through out-of-court agreements including mediation 1, and that good advice often leads to improvements in health and stress levels, especially around housing issues 2. There is evidence that timely advice and good representation leads to savings for the state because costs associated to avoidable civil justice problems can be prevented. Citizens Advice has calculated that for every 1 of legal aid expenditure the state potentially saves 8.80 on benefits advice, 2.34 on housing advice, 2.98 on debt advice, and 7.13 on benefits advice 3. Therefore, not only is Legal Aid important to ensure that everybody can access justice but it can also save money by providing good quality early intervention. What is the role of MRCOs in helping migrants, refugees and asylum seekers access Legal Aid? Migrants, asylum seekers and refugees face specific challenges when trying to solve issues arising in their lives, some of which may require advice and representation. These challenges can include: Lack of proficiency in English. Lack of knowledge of legal and administrative systems and procedures in the UK. Previous experience with different, in some cases dysfunctional legal systems from their countries of origin. 1 Bradley, Laura, 2011, Cutting Legal Aid: advice sources and outcomes in civil justice, the Strategic Society Centre, _Advice_sources_and_outcomes_in_civil_justice.pdf 2 Ibid. 3 Citizens Advice, 2010, Towards a business case for legal aid,

3 Restrictions in rights and entitlement due to immigration status which can complicate non-immigration matters for migrants and asylum seekers. For many migrants, asylum seekers and refugees the first point of contact when in need of help is migrant and refugee community groups or organisations (MRCOs). These groups provide a wide range of services including general and specialist advice and signposting. They are often run with little or no funding by committed individuals and are highly reliant on volunteers. When cases are relatively straightforward, MRCOs often support their clients directly. Interventions by MRCOs often go beyond advice and guidance, including social and emotional support. Many migrants trust MRCOs because they share a common language and culture and because they build strong relationships between advisor and client. MRCOs work together with specialist providers, either from the third sector or solicitors firms, when clients need specialist advice or representation. Arrangements between MRCOs and specialist providers range from partnerships to referrals to signposting. The ability of MRCOs to deal with the cases of poorer clients that need specialist help often depends on the eligibility of clients for legal aid and on finding a legal aid funded provider who will take the case. Some areas of work such as family disputes and immigration appeals are almost wholly dependent on working together with legal aid providers. MRCOs often have strong relationships with specific providers. MRCOs report that at present they are already finding it increasingly difficult to identify specialist providers willing to take on cases. In some areas of London there are few providers in specific areas of law and providers are often unable to take new cases because of high demand. A joint report between the Information Centre on Asylum and Refugees, Refugee and Migrant Justice, Asylum Aid and the Immigration Advisory Service in 2010 found that the current payment structure incentivises providers of advice and representation for immigration and asylum to take on cases that are simple and quick at the expense of more complicated cases 4. These organisations also report that some firms have stopped providing asylum and immigration advice due to the current fee structure 5. The current operation of Legal Aid therefore already presents challenges for migrants and asylum seekers and the organisations that support them. What are the proposals to reform Legal Aid? The Ministry of Justice published in November 2010 its proposals to reform legal aid in England and Wales and launched a consultation on the proposals which closed in February The Minister of Justice believes that there is a need for reform because, in its view: 4 Gibbs, Julie, 2010, Justice at Risk: quality and value for money in asylum legal aid, ICAR. 5 Ibid. 6 MRN and MRCF responded to the consultation. The responses can be found on: and

4 a) Legal Aid funds unnecessary litigation because it has expanded too much and covers too many areas, encouraging people to seek out lawyers to resolve their problems instead of looking for alternatives solutions. b) There is a need to find savings due to the Government s commitment to reduce the fiscal deficit. The Ministry of Justice proposals include: a) Significantly reducing the types of cases that would be eligible for advice/representation funded by legal aid. b) Changing the eligibility criteria for clients, making less people eligible for full funding and introducing contributions by clients according to their personal conditions. c) Reducing payments to legal aid providers. d) Introducing a telephone helpline through which access to all legal aid advice will be processed. The issues that under the proposals would not be funded by legal aid include: Debt advice, except when a home is at immediate risk All education law advice Employment law advice, except for cases of discrimination Family law, except in cases of domestic violence Housing law, except when risk of homelessness or serious disrepair threatening health Immigration, except when someone is detained or fleeing torture, persecution or seeking asylum. Under the proposals, all access to legal aid funded advice would be through a telephone helpline instead of face-to-face appointments. Telephone operators would assess eligibility and then transfer eligible clients to advisers who would in turn assess whether face to face advice is required. Phone calls would be charged at normal rates but if payment were an issue the helpline would offer a call back service. If implemented, the reforms are expected to deliver savings of 350 million in The Ministry s impact assessment estimates that between 455,000 and 505,000 people might no longer receive legal aid support 7. The Legal Aid Group disputes this figure and, using more recent data, calculates that the number of people excluded could be as high as 650, The Ministry of Justice argues that the effects of the proposals will be mitigated by: more cases being resolved out of court; more cases being taken on by the voluntary sector; more specialised advice being provided on a pro-bono basis by solicitors; and more individuals representing themselves in court. 7 Impact Assessment: Cumulative Legal Aid Reform Proposals, p10, 8 Legal Aid Group, 2011, The real impact of legal aid advice cuts,

5 What would be the impact of the reforms on the migrants, asylum seekers and MRCOs? If they go ahead, the legal aid reforms would have significant implications for the ability of migrants and asylum seekers from poorer backgrounds to find good legal advice in order to access the justice system. Non-asylum migrants would be particularly affected by the exclusion of all non-detention cases from legal aid. Asylum seekers would be affected by the exclusion of asylum support cases. Just like other sectors of society, migrants and asylum seekers from poorer backgrounds would find it more difficult to solve a wide range of issues, but due to language issues and lack of knowledge of the judicial system, migrants would find it more difficult to seek alternatives such as self representation at court. For MRCOs the proposed changes would also bring significant challenges. The sector is already under pressure from shifts in funding for the voluntary sector and cuts in the public sector 9. Some MRCOs have closed their doors and others are seeing their services being cut. Many others are already unable to respond to the demand for their services. MRCOs therefore have little or no extra capacity to serve a larger number of clients if some of the migrants and refugees who access legal aid providers were to turn to them in the future. The ability of MRCOs to offer help to clients with a need for specialist advice or representation would also be restricted as current partnership, referral and signposting arrangements would either no longer be available or would work on a pro-bono basis and would therefore be subject to the goodwill of legal practitioners. What can we do to oppose these proposals? A very large number of organisations and individuals, from different sectors responded to the Ministry of Justice consultation and a response should be published in spring Some of the changes will have to be approved by parliament so you can get in touch with your MP to express your concerns about these legal aid proposals and the effects they may have on you or the people you work with. A group of charities, trade unions, community groups, legal advice agencies and individuals have set up Justice for All, a campaign opposing the changes. Adding your name to this campaign would indicate that you oppose the MoJ reforms to the legal aid system. 9 D Angelo, Alessio, Erin Sanders and Ranmal Burkmar, 2010, Migrant and minority community organisations: funding, sustainability and ways forward, MODA/Middlesex University,