New legal aid immigration fees will not undo years of underfunding
Planned increases in legal aid for immigration and asylum work are welcome but will not fix longstanding issues in the system caused by years of underfunding, CILEX has told the government.
A Ministry of Justice (MoJ) consultation has proposed increased fixed fees, but in response CILEX members – around 500 of whom work in immigration law – said they still did not cover the work they have to do when preparing cases or appeals.
While the consultation recognised that the system of online appeals to the First-tier Tribunal – introduced in 2019 – required significantly more upfront work by lawyers, CILEX said this was not adequately reflected by the new fee.
Many respondents to an earlier call for evidence by the MoJ said fixed fees encouraged representatives to work within the fee, rather than do all that was required to prepare the case, and raised concerns about the financial viability of firms, the sustainability of the market and access to justice.
These fears were borne out by the comments of CILEX members. One said: “I've seen far too many cases poorly prepared because they are trying to bash through a complex case as quickly as possible because the money isn't worth it. This means that appellants are being let down by negligent representatives.”
CILEX President Matthew Huggett commended the MoJ’s overall ambition to ensure legal aid providers were paid an appropriate level of remuneration but said “the reality is that it has to go further and faster to achieve this”.
He said: “Immigration and asylum clients are often among the most vulnerable lawyers deal with and possibly the least politically popular. But ministers need to recognise what years of underfunding have done to the system and put justice ahead of headlines to ensure these people have equality of arms when facing the state.”
Members said the guideline hourly rates (GHR) used in the civil courts should be the starting point to calculate legal aid fees, that rates should reflect work carried out and an average of GHR would help to do that. CILEX was inclined to agree with such a suggestion, providing that GHRs were “regularly kept under monitoring and adjusted to reflect the current economic climate.”
In the same way that the MoJ has recognised unnecessary barriers put in front of CILEX’s criminal practitioners, CILEX called for the examination of the impact of accreditation schemes within immigration law.