ASYLUM APPELLATE PROJECT

ASYLUM APPELLATE PROJECT

SECOND YEAR REPORT

Summary

After two years of assisting asylum seekers refused ‘Controlled Legal Representation’ (i.e. legal aid), the Asylum Appellate Project’s results should make for a serious re-think of the way the public funding system for asylum cases is currently administered. If similar results were to be found across the country, it would suggest that solicitors are wrongly refusing Controlled Legal Representation in over 80% of cases and almost a third of all asylum seekers who are refused Controlled Legal Representation have a valid claim to some form of protection. Moreover, the Project has found that asylum seekers are prevented from accessing justice in a whole host of other ways. Although further research is needed in some of these areas, it is evident from the Project’s findings alone that, unless changes are made, significant numbers of asylum seekers are going to continue to be denied access to justice. Given that the alternative for genuine asylum seekers is between unlawful residence and potential destitution in the UK, if they are ‘lucky’, or persecution in their country of origin, the case for amendments to the public funding of asylum cases is compelling. Furthermore, in our view, some relatively minor changes could go a long way towards addressing these problems.

Aims

Funded by the Lankelly Chase Foundation and the A B Charitable Trust, the three year Asylum Appellate Project’s aim is to examine the extent to which asylum seekers with genuine claims for asylum are failing in their asylum applications for lack of public funding at the appeal stage.

Specifically, the Project aims to:

· enable asylum seekers who are refused publicly funded legal representation for their asylum appeals - on the basis that their legal advisers consider their appeals to have insufficient merit - to challenge the decision of their legal advisers; and

· demonstrate that significant numbers of asylum seekers are wrongly denied public funding and thereby wrongly denied asylum.

The desired outcomes were:

1. to reduce the numbers of asylum seekers becoming destitute in the UK, enabling more to succesfully claim asylum; and

2. to obtain the evidence necessary to affect public policy on the funding of legal services for asylum seekers.

Background

The judicial process in applications for asylum in the UK is, in essence, a two stage process:

1. The asylum seeker applies to the Home Office for asylum. This is an administrative decision, rather than a judicial one, and at this stage only about 17% of asylum applications are successful.[1]

2. There is then an appeal stage where those refused asylum can appeal to the Asylum and Immigration Tribunal and then, if the Tribunal makes an error of law, to the tribunal or the higher courts. Around 23% of appellants are initially successful in their asylum appeal to the Asylum and Immigration Tribunal.[2]

Legal representation can make a crucial difference to the outcome of a case. Compared to the 23% success rate of all appellants (represented and unrepresented) before the Asylum and Immigration Tribunal, appellants with legal representation have a 51% success rate.[3]

Public funding to allow asylum seekers who cannot afford a legal adviser to be legally represented at the appeal stage is granted by legal suppliers. These can only grant public funding if a case satisfies certain conditions, one of which is whether it passes a ‘merits test’: public funding is granted only where an asylum seeker has, in the opinion of their legal advisers, at least a 50% chance of success in their asylum appeal. To enforce this, the Legal Services Commission introduced ‘Key Performance Indicators’ in October 2006 whereby suppliers have to achieve at least a 35% average success rate in their asylum appeals (and a 40% average in their asylum and immigration appeals overall).

Asylum seekers have a right of appeal to an Independent Funding Adjudicator against any refusal of public funding by their legal representatives. However, Asylum seekers are given no legal assistance to challenge the decision of their legal advisers. Furthermore, a positive decision by the Independent Funding Adjudicator does not automatically lead to a grant of public funding; it is, at best, only relevant in persuading another legal supplier to look at the case again.

Since June 2007 the Asylum Appellate Project has worked with the refugee support organisations in Devon and Cornwall to see all asylum seekers, regardless of merit, who are refused Controlled Legal Representation as a result of failing the merits test. The Project employs a part-time lawyer to examine the cases of these asylum seekers and submit appeals on their behalf to the Independent Funding Adjudicator appointed by the Legal Services Commission.

Results

Statistical Evidence

The Project has had a total of 45 eligible[4] referrals since its inception in June 2007. 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.[5] 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,[6] 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.

Specific Issues Identified

Lack of legal assistance to appeal to the Independent Funding Adjudicator

For asylum seekers to be able to challenge the decision of a legal adviser who, in their legal opinion, considers that the merits of a case are insufficient to justify public funding, inevitably requires a certain degree of legal knowledge and understanding, let alone a certain fluency in English. However, once public funding has been denied, asylum seekers no longer have any legal assistance. They are therefore deprived of the very means with which to mount an effective challenge to the refusal of funding.

The Project’s findings demonstrate how important on-going legal assistance, even if limited to the assistance of another solicitor to review the refusal of funding, is following a refusal of public funding. The Project is currently working with the Immigration Law Practitioners Association to seek a solution to this issue through discussions with the Legal Services Commission.

Lack of representation following a successful appeal to the Independent Funding Adjudicator

Although 84% of all the Project’s appeals against refusals of Controlled Legal Representation have been successful, fewer than two-thirds of these have then been able to find an (alternative) solicitor to represent them in their asylum appeal. This is significant in that, as outlined above, legal representation can make a crucial difference to the outcome of an asylum appeal.

The difficulty is that, even where an appeal against a refusal of Controlled Legal Representation has been successful, legal suppliers are not obliged to take a case (back) on. Invariably, the previous legal representatives also prove unwilling to take a case back on and it can be difficult to convince new legal representatives to run the risk of doing so.

This state of affairs renders the right of appeal against a refusal of Controlled Legal Representation ineffective. We have therefore been working with the Immigration Law Practitioners’ Association to get the Legal Services Commission to change their rules so that any successful appeal against a refusal of Controlled Legal Representation enables an asylum seeker to find an alternative solicitor. However, to date, little has changed in this area.

Solutions

It is somewhat beyond the remit of the Asylum Appellate Project to research and propose specific solutions to the above issues. Nevertheless, it occurs to us that a solution to both may be relatively simple.

If the Key Performance Indicators are to be retained at all, we suggest that, at the very least, cases assessed by the Legal Services Commission, or the Independent Funding Adjudicator, as passing the merits test should not be taken into account when calculating whether a firm of solicitors has met such indicators. Whilst acknowledging that solicitors have an on-going and continuous duty to assess the merits of a case, it would, we suggest, be perfectly feasible to introduce separate and more relaxed Key Performance Indicators for such cases or to assess the performance of solicitors in such cases in other ways. This would hopefully go somewhere to resolving the injustice whereby an appellant whose case has been assessed as meritorious is still denied legal representation.

We further suggest that the above solution might also introduce an incentive for solicitors to review refusals of Controlled Legal Representation by other solicitors and appeal such refusals where appropriate: if solicitors know that cases that are successful before the Legal Services Commission (or the Independent Funding Adjudicator) are then less ‘at risk’ (i.e. they are less likely to be penalised for failing to win them) they may come to regard it as in their interests to try to take such cases on. This could thus go some way towards addressing the first issue identified above, whereby appellant’s have a supposed right to challenge a refusal of Controlled Legal Representation but no realistic means of doing so.

Other issues

Four other issues have been identified during the course of the Project. These are more anecdotal in nature, being factors that have prevented certain asylum seekers from having adequate access to justice, but are not endemic to all cases.

1. Refusals of Adjournments by the Asylum and Immigration Tribunal

In a number of cases seen by the Project, appeals to the Independent Funding Adjudicator were successful but the Asylum and Immigration Tribunal then refused an adjournment to allow the asylum seeker sufficient time to find another solicitor. The Asylum and Immigration Tribunal has targets to meet in terms of how quickly it deals with appeals and these can be applied somewhat inflexibly with little understanding of the realities of the existing public funding system.

In cases such as these, and where, as a result, the appellant has been refused asylum, the Project has used its limited resources to seek the services of a barrister to apply for reconsideration of the appellant’s case. In all such cases, it has been successfully argued that the appellant should not have been deprived of the opportunity to obtain new legal representatives. We are also working with the Immigration Law Practitioners’ Association to try to change Asylum and Immigration Tribunal policy with regard to such adjournment requests but little progress has been made.

2. Merton Compliant Age Assessments

Many of the cases involving disputed minors seen by the Project, (i.e. unaccompanied minors whom the Home Office do not accept as being under the age of 18,) have initially been assessed as being over the age of 18 by their Local Authority. The case of R(B) v Merton London Borough [2003] EWHC 1689 (Admin.) sets the standards required of Local Authorities in making age assessments. Unfortunately, the case allows for the most cursory of assessments where the appellant is “very obviously” over the age of 18. We suspect that faced with the prospect of having to expend resources to care for and shelter older minors, some Local Authorities are wrongly assessing minors as being very obviously over 18 without making a proper assessment; the minors then become the financial responsibility of the National Asylum Support Service and are thereafter treated as adults.

We are very concerned that vulnerable youths, many of whom admittedly look older than their age by UK standards, are being wrongly refused discretionary leave - whereby the Home Office acknowledge that they are currently too young to be sent back - and are not being given the support of social services that they need. They are often ill-equipped to deal with the adult environment they are thrust into and are deprived of the benefit of the procedures that are in place to ensure that the asylum process for minors results in a fair determination of their case.

The Project has challenged a number of such assessments and, thanks to the cooperation of Plymouth Social Services, has had full and proper age assessments carried out. However, we are concerned that, at present, we have no other way of addressing this issue. It may be that a separate research project of some kind is needed in this area.

3. Unrepresented Appellants

The Project is in the unusual position of occasionally reviewing in detail the determinations of the Asylum and Immigration Tribunal for appellants that were unrepresented at their appeal hearing. In practice, if an appellant has had representation at their appeal hearing then their legal representatives will review the determination to assess whether the appellant has any prospects of challenging the determination. However, no such service exists for appellants who were not represented at their appeal hearing.

In the course of challenging Tribunal determinations where adjournments had been refused (see above), the Project identified that most of these determinations were also challengeable on completely different grounds. Such determinations could, in the opinion of barristers whose expert opinion was sought on the issue, be of a very poor standard. It is our suspicion that, where asylum seekers are unrepresented at their appeal hearing, certain Immigration Judges are not dealing with the cases with sufficient rigour. As, according to the Project’s results, 84% of asylum seekers are wrongly refused representation and therefore appear unrepresented before the Tribunal, this issue is of grave concern.

Here again, a further separate research project may be required. It is our hope that such a project would bring about a small change in public funding to enable unrepresented appellants to have their determinations scrutinised by a lawyer.

4. Unjustified refusal of Controlled Legal Representation

During the course of the Project, it has become apparent that some appellants with evidently good cases are being refused Controlled Legal Representation. The rationale for doing so does not immediately appear to be apparent given that these cases are far from borderline. Our suspicion, although, once again, further research would be required to verify this, it that certain solicitors or firms of solicitors are refusing Controlled Legal Representation so as to be paid a fee for taking on the case without having to undertake the work of preparing the appeal. Most asylum seekers first claim asylum, and are assisted in doing so, in one area before being ‘dispersed’ to another area in which they are found new solicitors to represent them. The new firm of solicitors taking on the case needs do little more than await the Home Office decision and, if it is negative, then refuse Controlled Legal Representation. Their incentive for doing so lies in the fact that the Legal Services Commission will pay them a fixed fee regardless of how much work they have actually done on the case. This appears to be a serious flaw in the way in which Legal Services Commission funding is currently administered. This is yet a further area we hope to raise with the Legal Services Commission through discussions with the Immigration Law Practitioners’ Association.

Case Histories

1. Cases of M and N – Pakistan

M and her sister N fled serious domestic violence, rape and abuse at the hands of M’s husband. As there was no alternative protection or escape in Pakistan from such abuse, both claimed asylum in the United Kingdom. The Home Office refused both applications. M was then refused Controlled Legal Representation by her previous solicitors. N, who was represented by the same solicitors, was ‘discarded’ at the same time without being informed or receiving a formal refusal of Controlled Legal Representation.

The Asylum Appellate Project successfully appealed the refusal of Controlled Legal Representation in M’s case. We then submitted a detailed adjournment request to the Asylum and Immigration Tribunal requesting an adjournment to allow M to find an alternative solicitor. This was refused. The Project therefore submitted detailed submissions on the injustice of refusing M asylum after having denied her the opportunity to obtain legal representation, on the strength of M’s case and on our intention to appeal any refusal of asylum accordingly. M was subsequently granted asylum.

The Project also found N an alternative solicitor and she too was granted asylum.

2. Case of L – China

L was forced to flee China because of trade union activities which had already seen her detained and tortured daily in a forced labour camp for over two years. The Home Office refused L asylum and L’s solicitors then refused L Controlled Legal Representation shortly before the date of her appeal hearing. The Asylum and Immigration Tribunal refused to allow L an adjournment to allow the Project to challenge her solicitor’s refusal and L consequently appeared unrepresented at her appeal hearing. L’s asylum appeal was then turned down.

The Project instructed a barrister and successfully challenged the Tribunal’s determination, not only for refusing the adjournment but, more fundamentally, for numerous fundamental errors of law. L’s case was then re-heard by a different Immigration Judge, this time with legal representation arranged through the Project, and L was granted asylum.

3. Case of S - Zimbabwe

S came from Zimbabwe. Fleeing a regime that had sought her arrest, torture and possible extra-judicial execution as a member of the Movement for Democratic Change, M came to the United Kingdom as a visitor. Here she fell victim to a fraudster who convinced her not to claim asylum but to apply for a student visa instead to study in his ‘school’. When the school was closed by the authorities and the fraudster charged and subsequently convicted, S finally claimed asylum in the United Kingdom but was refused. Her solicitors did not feel able to challenge the credibility findings made by the Home Office and refused her Controlled Legal Representation.

The Project successfully challenged the refusal of Controlled Legal Representation and helped S demonstrate that she was, and had been, a member of the Movement for Democratic Change. Her previous solicitors agreed to take the case back on and S was subsequently granted asylum.

4. Case of K – Nepal/Bhutan

K had lived almost all of his life as a Bhutanese refugee in a refugee camp in Nepal. Like all the other refugees in the camp, he was effectively stateless, was forbidden from working in Nepal and had no existence or future outside of the camp. K claimed asylum in the UK and was refused. His solicitors refused him Controlled Legal Representation.

The Project successfully appealed the refusal of Controlled Legal Representation and convinced K’s previous solicitors to take the case back on. However, shortly before the hearing, his solicitors became concerned about the strength of K’s case and ceased to represent him. Thankfully, by that stage, detailed submissions had already been submitted to the Asylum and Immigration Tribunal by K’s solicitors and K was granted asylum.

5. Case of S – Somalia

As a member of a persecuted minority clan in Somalia, S fled for her life and claimed asylum in the United Kingdom. The Home Office refused to believe that she was from that particular clan and refused her asylum. Her solicitors then refused her Controlled Legal Representation.

The Project were able to demonstrate that S had been unfairly refused Controlled Legal Representation, successfully appealed the refusal of Controlled Legal Representation and found S an alternative solicitor. With the help of her new solicitor, S was able to obtain the evidence she needed to demonstrate that she was from the minority clan and was granted asylum.

6. Case of A – Afghanistan

A fled Afghanistan fearing that he would be killed for his father’s Christian proselytism. A was refused Controlled Legal Representation after the Home Office refused him asylum and refused to accept that he was a minor. The age assessment carried out by the local social services at the time had involved no more than two social workers asking A three questions: his name, the name of his father and why he was claiming asylum. They decided, on the basis of this most cursory examination, that A was not a minor (and therefore, conveniently for the local authority, not their responsibility). A had produced two forms of ID to establish his age but neither the Home Office nor his previous solicitors had attempted to have these authenticated by an expert. A was then dispersed to Plymouth, a different local authority.

The Project successfully appealed the refusal of Controlled Legal Representation and produced the evidence necessary for Plymouth social services to carry out their own proper age assessment (whereas otherwise Plymouth would have been bound by the previous age assessment). When this concluded that A was, in fact, 15 years of age, the Project found A new legal representatives who were able to have his documentary evidence authenticated. A was subsequently accepted as a minor by the Home Office and granted discretionary leave until the age of 18. He decided not to challenge the refusal of asylum, choosing, instead, to renew his asylum application later as an adult and to gather further evidence in the interim.

7. Case of S – Iran

S was wanted by the authorities in Iran for his involvement in peaceful but political activities. S’s asylum application was refused by the Home Office subsequent to which his legal representatives refused him Controlled Legal Representation.

S was referred to the Project which successfully challenged the decision of his previous representatives and found S new legal representatives. However, due to the stress of his experiences, S was admitted to hospital suffering from mental health issues and was therefore unable to comply with his new solicitors’ instructions. Unaware of the situation, S’s new solicitors ceased to act for him and, owing to time constraints, refused to take S’s case back on once the mitigating circumstances were explained to them. S therefore had to appear unrepresented before the Tribunal. Nevertheless, S’s case and his credibility as a witness were strong enough that he was granted asylum.

8. Case of N – Zimbabwe

N had been involved with the Movement for Democratic Change in Zimbabwe and, according to recent case law, clearly merited the protection of the Refugee Convention as he would otherwise face persecution upon his return. Nevertheless, the Home Office refused N asylum and, in spite of the clear merits of the case, his legal representatives simply followed suit and refused him Controlled Legal Representation.

The Project successfully challenged the decision of N’s previous solicitors and found him new legal representatives. N’s asylum appeal was then successful and he was granted asylum.

9. Case of G – Nepal/Bhutan

G’s case was almost identical to that of K (case history example number 4 above). As with K, he was refused asylum by the Home Office and then refused Controlled Legal Representation by his legal representatives.

As a result of the Project’s intervention, G was able to successfully appeal the refusal of Controlled Legal Representation, obtain new solicitors and was successful in his asylum appeal.

10. Case of S – Iran

S applied for asylum as a minor. On arrival in the UK he presented the Home Office with a copy of his Iranian Identity document which confirmed his age as being 16. However, S was then summarily assessed by Croydon Social Services as “very obviously over 18”, interviewed as an adult and put into adult accommodation.

The Project referred S to Plymouth Social Services who, in spite of the alleged ‘assessment’ by Croydon Social Services’, confirmed that S was indeed only 16. When the Home Office refused to withdraw their reliance on the assessment made by Croydon Social Services the case proceeded to appeal. Although S was then unsuccessful in his asylum claim, the Immigration Judge did accept that S was only 16 and the Home Office were obliged to grant him discretionary leave until the age of 18.

Jean-Benoit Louveaux

Devon Law Centre

29 June 2009

[3] Figures supplied by the Legal Services Commission under the Freedom of Information Act

[4] Three clients ceased to instruct Devon Law Centre before their funding appeal could be submitted, two clients had their asylum appeal heard by the Asylum and Immigration Tribunal before a funding appeal could be submitted and one client had their refusal of asylum withdrawn by the Home Office.

[5] 10 cases out of the 33 which have been fully determined by the Asylum and Immigration Tribunal; 8 cases resulted in a grant of asylum, one in a grant of discretionary leave where the refusal of asylum was not appealed by the appellant and one in a grant of discretionary leave where the asylum appeal was then dismissed.

[6] See statistics quoted in ‘Background’ section