Department for Constitutional Affairs - Response to the consultation on proposed changes to publicly funded immigration and asylum work

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Summary of Responses to the Consultation Paper

Proposed Changes To Publicly Funded Immigration And Asylum Work

March 2004

Introduction
Background
Summary of responses
Responses to specific questions
Conclusion
Annex A - respondents
Combined Regulatory and Race Impact Assessment

Introduction

This document is the post-consultation report for the consultation paper, Public Consultation on Proposed Changes to Publicly Funded Immigration and Asylum Work.
It will cover:-
- the background to the report
- a summary of responses to the report
- a detailed response to specific questions raised in the report
- next steps following the consultation.
Further copies of this report can be obtained by contacting Niaz Faiz at the address given below:

Department for Constitutional Affairs
Public Legal Services Division
3rd Floor
Selborne House
54/60 Victoria Street
London
SW1E 6QW
Telephone: 020 7210 8831
E-mail: Niaz Faiz

Background

The consultation paper "Public Consultation on Proposed Changes to Publicly Funded Immigration and Asylum Work" was published on 5 June 2003. It invited comments on proposed changes in the delivery of publicly funded legal services in the areas of immigration and asylum with the aim to bring asylum legal aid under effective control and cut out unnecessary expenditure.
The consultation paper outlined three main proposals:
- A curb on the amount of time for which lawyers would be paid in individual cases;
- Accreditation of lawyers and other case-workers to ensure quality representation;
- The introduction of a Unique Client Number to prevent unnecessary changes of solicitor.
A list of the respondents is at Annex A.

Summary of Responses

A range of groups and bodies representing the interests of refugees and asylum seekers, solicitors firms, not for profit organisations and individual practitioners and interested parties responded to the consultation. The names of the respondents, which total 260, are shown at Annex A.
The House of Commons Constitutional Affairs Committee conducted an inquiry into the proposals. The Committee reported its' views on 31 October 2003. The inquiry in particular concentrated on the proposals to set maximum limits on the amount of public funding available in individual cases. The Committee's principal concern, which reflected that of the majority of respondents, was over the "stringent constraints on time".
There was overwhelming support for the introduction of an accreditation system and the Unique Client Number. The proposals to curb the amount of time for which lawyers would be paid in individual cases generated wide spread concern. Respondents also made suggestions about where savings might be achieved and there was criticism of Home Office systems and procedures.

Responses to Specific Questions

Q.1. What impact will focusing advice and representation through the maximum limits have on clients and particular client groups?

The majority of respondents felt that the limits originally suggested would be very restrictive, encouraging standard statements to be produced.This could limit the amount of evidence which would be put forward on behalf of the client. It was generally felt that suppliers would not be able to provide adequate preparation and presentation, limiting asylum seekers rights to full and proper representation. The view was also expressed that the limits would be insufficient to deal with the more complex or unusual cases. It was also generally felt that the limits would encourage unscrupulous lawyers to either drop the case altogether or to charge the client privately when the legal aid was exhausted.

Q.2. Are there any other ways in which unnecessary expenditure can be reduced?

The majority of respondents felt that if the Home Office improved its decision making processes to operate more efficiently and cost effectively it would lead to a reduction in costs. The Legal Services Commission (LSC) was also another body named by respondents who could achieve reductions in costs. It was generally felt that the LSC could tighten their existing audit mechanisms and expand the use of cost compliance to withdraw contracts and recover costs over-claimed. The general view was that incompetent lawyers and firms should be penalised by the LSC. A minority of respondents suggested that better management of the dispersal system for asylum seekers would reduce the amount of work replicated by suppliers as well as reducing the amount of travelling time spent by suppliers and their clients. A minority felt that changes could be made to improve the system of listing appeal hearings to reduce the time spent by representatives waiting for hearings to start.

Q.3. Do you believe that concentrating funding on the preparation of a statement of case at the initial stage is the most appropriate use of limited funds?

The majority of respondents felt that it was appropriate and reasonable for the Government to concentrate funds at the initial stage and that it was important for asylum seekers to obtain good quality advice in the early stages of their claim. It was felt that a well prepared case at the start should be the most effective way of presenting a case and having all the facts and evidence before the Home Office's Immigration and Nationality Directorate (IND) at the start is better for both the applicant and the decision-maker. It was generally believed that well-prepared cases have a much higher likelihood of resulting in a grant of leave to remain. The minority view was that good preparation at the start of the case did not necessarily result in more successful asylum claims.

Q.4. Are there specific aspects of appeal work, which are not covered in the above proposals?

The majority of respondents felt that the proposals did not take account of the level of preparation needed to comply with directions to produce documents such as chronologies, skeleton arguments and appeal statements. It was also felt that there was no provision made for the preparation for adjourned or remitted hearings and for preparing children for appeal hearings. A minority felt that there was no provision for funding for the court of appeal and appeals against National Asylum Support Service (NASS) decisions.

Q.5. Is there a need to include other exceptions to the maximum limits?

The general view was that complex and unusual cases should not be subject to the maximum limits. Most respondents felt that applicants affected by traumatic experiences would need more time to build up trust with their lawyer. Respondents suggested cases and specific issues that they felt should be exceptions to the maximum limits. These were:

cases:

with interpreters or witnesses;

where the applicant is subject to deportation proceedings following a criminal conviction or on grounds of national security;

where the applicant:

has mental health problems; is disabled, elderly; inarticulate;

is a victim of rape or torture;

has been diagnosed as having HIV or AIDS;

is a minor; or

is destitute.

A minority felt that exceptions should be made for drafting further representations; obtaining medical reports; to deal with Home Office delays; and when it was necessary to hold a number of meetings with the client. Some respondents felt that cases were too varied for limits to be imposed and that solicitors should decide in each individual case. A minority of respondents also suggested that Category 1 firms should not be subject to limits.

Q.6. What impact will the proposals for maximum limits have on businesses, charities and the voluntary sector?

Most respondents felt that the introduction of the maximum limits as proposed would result in some of the better and more experienced firms withdrawing from publicly funded asylum work viewing the changes as a compromise on quality which they would not be prepared to do. It was also felt that firms would find it difficult to retain good quality solicitors and would use less experienced staff, which would limit the specialist provision of immigration and asylum services.

The majority view of the impact on charities and the voluntary sector was that these would be the least likely to benefit from the proposals. It was generally felt that many of the charitable organisations already work to tight budgets. Consequently cuts in funding would reduce their ability to help asylum seekers. A minority felt that the voluntary agencies workload would be increased because they would have to take on the cases rejected by private practice as uneconomic to complete within the time limits set down. A minority also felt that the proposals might lead to more asylum seekers seeking help from their GP's.

A minority of respondents expressed the view that the introduction of the maximum limits would result in an increase in complaints by asylum seekers, particularly in the not for profit sector.

Q.7. Do you believe a separate system of accreditation is appropriate for immigration/asylum work?

The majority of respondents supported the proposal for a separate system of accreditation although some felt that there was no need for an accreditation scheme. It was felt that the Specialist Quality Mark, the Law Society Immigration Panel and Office for the Immigration Service Commission standards were sufficient.

Q.8. What impact will the proposed accreditation scheme have on clients and particular client groups?

A minority view expressed was that the introduction of an accreditation system could lead to a restriction in the number of suppliers. There were suggestions from a small number of respondents that it would be beneficial to have a separate accreditation scheme for dealing with minors seeking asylum.

Q.9. What impact will the proposed accreditation scheme have on businesses, charities and the voluntary sector?

The majority felt the effect on businesses would be dependent on the cost of accreditation.

Q.10. Are four levels of accreditation necessary? If not, how many, and what should they be?

The majority agreed that the advanced level should be paid a higher rate. It was generally felt that the accreditation scheme should apply to individuals, rather than firms, to avoid the situation where poor advisers could transfer to an accredited firm.

However a minority viewed the four levels as too bureaucratic and impractical to administer.

Q.11. What work do you believe those at each level should be considered competent to perform?

Respondents did not reply in detail on the work that accredited advisers should perform at different levels. In general it was felt that there would need to be a clear specification of training requirements for advisers to keep up-to-date, which should be supported with appropriate training. A minority suggested that accreditation could be based on a portfolio examination. Others suggested that the levels within the scheme would need to reflect the diversity of qualifications and experience of advisers. A minority expressed the view that the accreditation requirements should apply to representatives at interviews.

Q.12. How should competence be assessed and by whom?

A minority of respondents suggested that the Law Society should assess the accreditation scheme and that the Law Society Immigration Panel could be extended. A further minority view was that the assessment should be carried put by peers.

Q.13. How soon do you believe accreditation can become compulsory?

The majority of respondents who expressed a view felt that the scheme should be introduced as soon as possible and become compulsory within the time scale suggested. A minority suggested that it should be compulsory within 12 months and others within 12 to 24 months. One respondent suggested that there should be an 11 month gap between the implementation of the time limits and accreditation. A minority of respondents suggested that a pilot scheme be set up.

Q.14 Are there other ways in which quality can be ensured?

Very few respondents replied specifically to this question. Those that did suggested:

that complaints about solicitors should be taken more seriously and acted upon by governing bodies and the Legal Services Commission;

the increased use of peer reviewers to look at and assess the level of quality; and

for a scheme to be introduced to assist charitable organisations to refer asylum seekers to good quality legal advisers.

Conclusion and implementation

Conclusion

We now propose that there should be a financial threshold for the time allowed to prepare an application to the Home Office. The norm for this threshold will be 5 hours in asylum cases and 3 hours in non-asylum cases. Once this threshold is reached, suppliers will need to demonstrate that the case merits further funding and will only be allowed to proceed under legal aid with prior authority from the LSC. Professional disbursements and VAT will not count towards these thresholds and the LSC will introduce separate thresholds for disbursements that require prior authority to exceed. Extensions are only likely to be granted in genuine and complex cases where there is a real prospect of success. The LSC propose to allow a limited number of firms, where it is confident work is to a high standard, to operate to a higher threshold before requiring LSC authority to continue work.
In all but exceptional cases (unaccompanied minors; applicants going through fast-track initial decision processes; those suffering from a recognised and verifiable mental incapacity which makes it impractical to undergo an interview without support) funding for attendance by a representative at the substantive Home Office interview will not be authorised. The LSC will introduce rules to ensure that in these exceptional cases where attendance at interview is authorised, this will be an experienced adviser or the immigration supervisor, not by an agent or outdoor clerk, until accreditation is introduced.
Before any preparatory work can be carried out under legal aid for an asylum appeal, the LSC will need to be satisfied itself that the case merits being pursued. Currently, individual firms can make this decision. There will therefore be no guarantee of legal aid being allowed for work at the appeals stage in individual cases. If, however, the LSC is satisfied that the appeal case merits representation, it will set a financial threshold up to which firms will be able to work before they need to seek an extension from the LSC. Thresholds would be set for individual cases depending on the facts of the case, and the experience and previous outcomes of the firm and whether the client had received previous legal advice. As now, applicants will be able to seek a review of refusal of funding by the LSC for an appeal against rejection of their asylum claim, but any such review will be considered on the papers only. The LSC will continue to let a small number of suppliers that have a good record of success on appeal cases to continue to make decisions about whether funding should be granted. The LSC will proceed with a fixed fee of £150 plus VAT (or three hours work for Not for profit organisations) for applications for leave to appeal to the Immigration Appeal Tribunal.
The LSC is presently finalising the details of the skills and competencies required for each of three levels of accreditation now being proposed. The Law Society is in the process of recruiting independent assessment organisations that will ensure that all advisers undergo objective tests of their competence and evaluation of a portfolio of work conducted. As set out in our original proposals, those on the most rigorous advanced level will be entitled to increased remuneration as a result of their skill and experience for work they personally conduct. This we propose to be at 5% above current rates.
The Unique Client Number will be required to be used for all dealings between advisers and the LSC in a case once it has been issued, and will be submitted with all claims for payment once an initial decision has been made.
In addition, the LSC is consulting over limiting choice of representative in locations where fast track procedures are in operation to dedicated duty representatives authorised under contract. This is intended to prevent touting and poaching of clients at centres such as Oakington and Harmondsworth, which currently leads to wasteful duplication of resources. The LSC will also consult over the use of experts and interpreters in immigration and asylum cases,
Officials from the Home Office, Department for Constitutional Affairs and Legal Services Commission are examining the initial decision-making stage of the asylum process, with particular regard to the role that legal aid and publicly funded practitioners play. This work may lead to further changes in the way that legal aid for asylum seekers is delivered beyond those now proposed. In particular, consideration is being given as to whether legal aid is needed at the initial stage in all cases. The Government will make an announcement on any further changes in due course.

Implementation

Current processes and procedures will need to be changed significantly following the introduction of prior authorisation by the LSC in every asylum and immigration case (with the exception of 5 hours for advice at the initial stage and any other earned autonomy granted by the LSC). It is expected that these changes will take some time to bed in efficiently. To aid this there will be a transitional period where an additional 2 hours will be added to the initial stage for most firms before extensions are required from the LSC. This will only be during the transition. The timetable will be as follows:
- Transitional 7 hour threshold for asylum (and 5 hour threshold for non-asylum) for initial stage applies to suppliers in London on 1 March 2004
- Transitional 7 hour threshold for asylum (and 5 hour threshold for non-asylum) for initial stage applies to all other suppliers on 1 April 2004
- 5 hour threshold for asylum (and 3 hour threshold for non-asylum) for initial stage applies to all suppliers in England and Wales on 1 May 2004, when the transitional arrangements end.
- Authorisation from LSC required for appeals from 1 April 2004. The thresholds will apply to all work whether done on new or old cases started.
Accreditation will be introduced from April 2004, and will become compulsory by April 2005. The Unique Client Number will be introduced from April 2004. The requirement to apply to the LSC for prior approval to appeal an initial Home Office decision will also apply from April 2004.

Annex A - Respondents

NO:	NAME
1	James & Co Solicitors
2	Atkins Public Law Solicitors
3	Deputy President, Immigration Appeal Tribunal
4	Jackson & Canter Solicitors
5	Wilkin Chapman Solicitors
6	Solihull Visual Impairment Service
7	Coventry Law Centre
8	John Hick
9	Barbara Forbes
10	Elizabeth Lloyd-Philipps
11	Barbara Groombridge
12	Immigration Appellate Authority
13	Judy Entwistle
14	The Methodist Church
15	Belal Ballali
16	Wendy Needham
17	Peter Hague
18	Annette & Oscar Wallis
19	Robert Pocock
20	Albert Mosley
21	Administrative Court Office Lawyer (RCJ)
22	Malcolm & Jennifer Elliott
23	N Barnes
24	Jill Franklin Trust
25	Deputy Chief Adjudicator - Immigration Appellate Authority
26	Dr Lynne Jones MP - Ms Margaret Finch
27	Religious Society of Friends - Quakers
28	Val Hill
29	H E Mister
30	Margaret Catforth
31	Frank Rock
32	Stuart Mitchell
33	Linda Whittern
34	Elizabeth Lees
35	Joyce Harrington
36	Peter Yeo
37	Ruth Johns
38	M J Sackin
39	James Barrett
40	Marilyn Thomas
41	Vicki Squire
42	Magne & Co Solicitors
43	Trinity College Oxford
44	Janet Toye
45	Lydia Vulliamy
46	British Red Cross
47	University of Wales Swansea
48	The Rt Hon John Gummer MP
49	Jim Marshall MP
50	Susan Kupper
51	Margaret Good
52	Dudley Quaker Meeting
53	Duncan Miller
54	David and Susan Robb
55	Michael Mason
56	Michela Macchiavello
57	Ben Bradshaw MP
58	Asian Resource Centre
59	Fursdon Knapper Solicitors
60	The Council for International Education (UKCOSA)
61	David McDowall
62	Dr Lynne Jones MP - Ms Vicki Squire
63	Darwen Law Chambers Solicitors
64	Gerry Steinberg MP - Katherine Henderson
65	Justice
66	Council on Tribunals
67	Islamic Human Rights Commission
68	A number of people - A copy was also sent to Dr Lynn Jones MP
69	Legal Services Commission
70	Rob Marris MP
71	Margaret Murray, Elizabeth Mahoney & Josephine Lenihan
72	David Goodacre
73	Christina Goodwin
74	The Church of England- Bishop of Wolverhampton
75	Claire Thomas
76	Judith Chapman
77	Clifford & Patricia Crellin
78	Asylum Seekers Forum
79	The African Centre For Peace And Human Rights Initiatives (ACPHI)
80	Asylum Seekers Forum
81	Asylum Seekers Forum
82	Bury Law Centre
83	Psychological Services Directorate
84	Glazer Delmar
85	Attridge Solicitors
86	Avocet Solicitors
87	Tim Cowen
88	St Anthony's Health Centre
89	W Antony Reynolds
90	Shirley Balgobil
91	Newcastle, North Tyneside and Northumberland NHS Trust
92	Oxfordshire CAB
93	Jackson & Canter Solicitors
94	Avocet Solicitors
95	Corecog
96	Redbridge Refugee forum
97	Tooks Court Chambers
98	David Gray Solicitors
99	Sheila Mosley
100	Ian Cawsey MP- Mr Campion
101	Sue Arnall
102	Margaret Exley
103	HIV and Immigration Legal Group
104	Richard Burden MP- Asian Resource Centre
105	White Ryland Solicitors
106	Yorkshire Immigration Practitioner's Group
107	Bosnian Resource Information Centre Kosovar Support (BRICKS)
108	South London Congolese Association (SOLCA)
109	Detention Advice Service (DAS)
110	Browell Smith & Co Solicitors
111	United Nations High Commissioner for Refugees (UNHCR)
112	Doughty Street Chambers
113	North West Consortium (East) for Asylum Seekers and Refugees
114	Ann Doggrell
115	Mann Wey Li
116	Asylum Support and Immigration Resource Team (ASIRT)
117	Poppy Project, Eaves Housing for Women
118	Roelens Solicitors
119	Renewal Refugee and Migrant Programme (RAMP)
120	South London Tamil Welfare Group
121	Jane Aspden and Gail Elliman, ACT Project, The College of Law
122	Student Action for Refugees (STAR)
123	Refugees Children's Consortium
124	Law Centres Federation
125	Liberty
126	National Coalition of Anti-Deportation Campaigns (NCADC)
127	Hammersmith & Fulham Community Law Centre
128	Dr Christina Cock
129	Churches' Commission for Racial Justice
130	Chris Dolan
131	Luqmani Thompson & Partners
132	Phillip Turpin
133	Chambers of Sibghat Kadri QC, 6 King's Bench Walk
134	East Area Asylum Seekers Support Group of Newcastle upon Tyne
135	Ms Jackie Matharu
136	Nathaniel & Co
137	Immigration Advisory Service
138	Winstanley Burgess - Peer Review Consultants
139	The Nia Project (formerly Hackney Women's Aid)
140	Dennis Turner MP- Bishop of Wolverhampton
141	Rowchester Chambers
142	Ethel Street Surgery
143	Wilson & Co Solicitors
144	North Kensington Law Centre
145	Ethiopian Community Centre in the UK (ECCUK)
146	Parker Rhodes Solicitors
147	Hispanic Welfare Association
148	National Assembly Against Racism
149	Ramsbottom & Co Solicitors
150	P & W Slessenger
151	Dr Donald Kenrick
152	Association of Visitors to Immigration Detainees
153	Leicester Asylum Seeker and Refugee Voluntary Sector Forum
154	Horn of Africa Community Group
155	Eve Bartlett
156	Hugh McLeod-Roberts
157	Steven Weeks
158	Swansea Bay Asylum Seekers Support Group
159	Deighton Guedalla Solicitors
160	Two Garden Court Chambers
161	Popkin & Co Solicitors
162	Amnesty International
163	10-11 Gray's Inn Square
164	Stuart Turner
165	Jesuit Refugee Service UK
166	Sheikh & Co
167	TRP Solicitors
168	Christian Khan Solicitors
169	Refugee Council
170	London Detainee Support Group
171	Newcastle City-wide Asylum-Seeker/Refugee Support Group
172	Refugee Psychologists Forum
173	Rebecca Crerar
174	Gatwick Detainees Welfare Group
175	Stonham Housing Association
176	Bail for Immigration Detainees (BID)
177	Advice Services Alliance
178	Legal Action Group
179	Mitre House Chambers
180	Satwant Gill and Eric Fripp
181	Peer Review Consultants
182	Dexter Montague and Partners Solicitors
183	The Community Law Partnership
184	George House Trust
185	Lawrence Lupin Solicitors
186	Nick Raynsford MP- Plumstead Community Law Centre
187	The Law Society
188	Joint Council for the Welfare of Immigrants
189	Cathy Thornton
190	The Bar Council
191	Hackney Law Centre
192	S Osman Solicitors
193	Wandsworth and Merton Law Centre
194	Scottish Refugee Council
195	Brighton Housing Trust
196	Kevin Hopkins MP- Zoe Stevens of Avocet Solicitors
197	Bindman and Partners Solicitors
198	Terrence Higgins Trust, Specialist Advice Centre & HIV & Immigration Legal Group
199	Ole Hansen & Partners Solicitors
200	Luqmani Thompson & Partners Solicitors
201	Fisher Meredith Solicitors
202	Fisher Jones Greenwood Solicitors
203	Wesley Gryk solicitors
204	Praxis
205	Asylum Aid
206	DIASPORA (refugee community organisation)
207	Noden & Company
208	Tyrer Roxburgh & Co
209	A Margaret Laurie
210	Befriending Refugees and Asylum Seekers (BRASS)
211	London Refugee Voice
212	Refugee Support Group Devon
213	Avon & Bristol Law Centre
214	Wandsworth Refugee Network
215	Immigration Law Practitioners' Association
216	A J Paterson Solicitor
217	Refugee Legal Centre
218	Hammersmith & Fulham Community Law Centre
219	Greater Manchester Immigration Aid Unit
220	Howells Solicitors
221	Citizens Advice
222	National Consumer Council
223	Community Law Partnership
224	Duncan Lewis & Co Solicitors
225	Irving & Co Solicitors
226	Mr J Sargent
227	Advice UK
228	Restore, Birmingham Churches Together Project
229	Medical Foundation
230	Body & Soul
231	Office of the Immigration Services Commissioner
232	Dr Alec Frank
233	YMCA England
234	National Youth Advocacy Services (NYAS)
235	Legal Aid Practitioners Group
236	Courtney Burry
237	Variety of interested agencies in Nottingham
238	North East Immigration Practitioners Group Response
239	Association of Lawyers for Children
240	Asylum Welcome
241	Manchester Advice
242	ARMB Solicitors
243	Churches Together in Britain and Ireland
244	Rt Hon Sir Alan Haselhurst MP - Mr F Deutsch
245	Norman Lamb MP - Heather Spiller
246	South Manchester Law Centre
247	International Ministerial Council of Great Britain
248	Bromley Refugee Network
249	Dr Philip Steadman
250	The Forum
251	Bermondsey Citizens Advice Bureau
252	Keith Hill MP
253	London Refugee Voice Does not match with letter
254	Health Access Team for Asylum Seekers in Leeds
255	Southall Black Sisters
256	Religious Society of Friends In Britain ( Quakers)
257	Lawcomm solicitors
258	Refugee Women's Association
259	Iranian Community Centre London
260	Community Legal Services Partnership Wandsworth and Merton