Trafficking victims and vulnerable asylum seekers will be left unable to access legal representation because of new rules on legal aid that constitute a “hammer blow for access to justice”, lawyers have warned.
Changes to the legal aid fee for asylum and immigration appeals lodged online through the court’s new digital system will “heap further pressure” on legal aid providers when they are already “in crisis”, and will leave vulnerable appellants unrepresented, according to campaigners and legal professionals.
One of the country’s biggest legal aid firms Duncan Lewis is threatening to sue the Ministry of Justice (MoJ) over its “failure” to consult on the changes, which are set to come into force on Monday, warning that without any apparent evidence base, the amendment increases the likelihood that legal aid providers will be under-compensated for their work and places access to justice at risk.
Legal aid lawyers can only start charging an hourly rate once their work on a case exceeds three times the value of the fixed fee, which currently stands at £227 for cases that end before a hearing takes place. The new fixed fee is £627 for an asylum case, meaning £1,881 of work will have to go into it before they can charge anything above that fixed fee.
The changes also mean that barristers will need to prepare a skeleton argument at an earlier stage in the case. The Immigration Law Practitioners’ Association (ILPA) estimates that under the new rules, even in complex cases, a barrister might be expected to produce a skeleton argument for as little as £60.
Legal professionals said the new payment scheme essentially amounted to a cut for lawyers who are barely coping with existing fee levels, and would deter them from taking on the more complex cases for people with complicated histories and vulnerabilities, harming access to justice as a result.
The legal aid sector is already at breaking point, with research by Refugee Action showing there has been a 56 per cent drop in the number of asylum and immigration legal aid providers since 2005.
Karl Turner, shadow minister for legal aid, said: “This is a clear-cut case of giving with one hand and snatching away with the other. While I would normally welcome any increase in legal aid rates, in real terms this is a reduction, plain and simple.
“The MoJ’s ill-considered reforms will heap further pressure on to legal aid providers when they are already in crisis, and could leave extremely vulnerable appellants, including trafficking victims, unrepresented. The gaping hole these changes create is a clear affront to access to justice in the UK.”
Sonia Lenegan, legal director at the ILPA, said the type of cases most likely to be affected by the changes were the more complex ones, which entail more preparation time, such as those involving victims of trafficking or LGBTQI+ refugees.
She added: “The changes are being rushed through without proper evidence or consultation, and in the face of universal opposition across the sector. All lawyers are asking for is to be paid for the work that they do; this should not be controversial."
Toufique Hossain, director of public law at Duncan Lewis, said: "Years of cuts to public funding have decimated the legal aid sector, and these latest amendments make the situation untenable for migrant lawyers. There is now too great a risk that legal aid lawyers will simply be unable to represent those who need help the most, having a devastating effect on access to social justice."
Rebecca Kingi, committee member of Young Legal Aid Lawyers, echoed his remarks, saying: “This will prevent those who require legal support from accessing the protections they desperately need. The rules are a hammer blow for access to justice.”
A MoJ spokesperson said: “The increased fee structure has been under consideration for some time and reflects the digitisation of the tribunal system, which has allowed justice to continue to be done during the pandemic.
“These fees are time limited until June 2021, when they will be reviewed and any changes consulted on before new fees are brought into force.”
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