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Since 2007, and the implementation of proposals from Lord Carter’s review of legal aid (Carter, 2006), most immigration and asylum application and appeals work is paid for on a system of fixed fees. The premise of the fixed, or standard, fee is that providers are paid a sum which represents the average cost of a case. Some cases will cost more and some less, but overall the payments should roughly equal the work done – the ‘swings and roundabouts’ principle. The fee varies depending on the type and stage of the case, and is set out in regulations (secondary legislation) which are updated periodically. Cases which cost three times the fixed fee will ‘escape’ the fixed fee and be paid at hourly rates, which also vary according to the type and stage of work.

Even before the Carter Review and the LASPO Act (2012), which reduced fees further, Moorhead noted the discrepancy between the government view that the legal aid scheme was generous and practitioners’ arguments that it was a ‘toxic job’ and they could barely survive on legal aid rates (2004:p186). He pointed out the lack of robust data on the operation of firms and not-for-profits working in legal aid, the relationship between legal aid and commercial practice, and how legal aid practices responded to economic changes. He also discussed the increased bureaucracy and surveillance and the passing of administrative costs to the providers even before the fixed fee and the most recent cuts were implemented, which made those cuts more difficult to manage. Still less is known about how barristers manage these issues.

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The provider base of publicly funded asylum legal services under contract to the Legal Aid Agency (LAA) consists of solicitors’ firms and not-for-profit organisations of different sizes, business models and cultures. The exact number of provider offices changes constantly, usually increasing at the time that new contracts are awarded and declining throughout the contract period. In June 2020, 3,476 offices held a legal aid contract across civil, criminal and family law (down to 3,379 by December 2020). Some of these are multiple offices of the same firm, others are sole offices or practitioners; some offices offer multiple categories of law and others only one. Of these, 279 offices were authorised to offer immigration and asylum legal aid, according to the LAA’s Directory of Legal Aid Providers spreadsheet (dated 17 June 2020).1 This had fallen from a peak of 326 when the contracts were awarded in September 2018, after a low of 231 before those contracts were awarded. It compares with 1,637 offices authorised to do family legal aid work, 1,682 criminal providers, 430 for housing, and 56 for welfare benefits (which is largely outside the scope of legal aid).

These offices are not spread evenly through the country. The LAA divides England and Wales into geographical ‘procurement areas’, which vary in size for different categories of legal aid. For housing and debt, the country is split into 130 procurement areas, often comprising one or two local authority areas. For family law there are 108, whereas for community care there are 12 much larger procurement areas, and just 4 for welfare benefits.

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Mariam was subjected to serious violence by her husband in a country which offers women little protection from family violence. She borrowed money secretly from a relative to flee to the UK with her daughter Zainab, after her first daughter was forced into marriage against her will by Mariam’s husband. She suffers from depression, anxiety and post-traumatic stress disorder (PTSD) as a result of her experiences. With her daughter, she was accommodated in Suffolk, in the East of England region.

As Figure 3.1 shows, no legal aid advice is available in Suffolk, nor in the counties to the north and south, although all of those counties accommodate dispersed asylum applicants. Those to the west appear to be well supplied, with five providers having received contracts in September 2018 in the closest access point, Cambridgeshire and Northamptonshire. One of them either lost or surrendered its contract within the first year, leaving four in Figure 3.1, and another did not open any cases in the year. All but one of those providers is in Northampton, to the far west of that access point, over two hours by car and three by train from Ipswich. The total number of cases opened in that access point that year was just 49. Eventually, Mariam found a solicitor in Bedfordshire, also over two hours away by train – a daunting journey for a woman suffering with anxiety and PTSD, and barely able to speak English.

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This book argues throughout for a whole-system approach to legal aid, in any category of law. That approach means there is a need to develop frameworks for understanding demand and supply, the conflict between quality, financial viability and client access, and the system factors which drive those. Within such frameworks, rising demand (if unaffordable) can be addressed not by reducing the scope of legal aid (or any other service), but by changing the system to create less need. Building those frameworks requires an understanding of the context and history of the bodies and actors involved. The ‘memory’ of that history is stored throughout an organisation or system (Cilliers, 2000), so that everyone in a system can act ‘dutifully and rationally’, yet still experience a bad result (Meadows & Wright, 2008: p5). When history is ignored, there is a risk of developing and attempting to impose solutions and reforms that cannot succeed.

This chapter offers that framework of context, history and politics, beginning with the development of immigration law and the legal profession, then introducing the key stages of legal aid development. The next chapter fills out the framework with the micro-level introduction to individual provider organisations and practitioners.

In the late 1800s, as poor Jewish refugees fled persecution in the pogroms of Eastern Europe, the UK Parliament passed the Aliens Act 1905, aiming to stop them entering Britain. That began the development of both the modern system of immigration control in the UK and the right of appeal against immigration decisions.

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This book is a close investigation of the immigration and asylum legal aid market in England and Wales, based on six years of empirical research (set out in more detail later in this chapter). It explores the interactions of demand, supply, quality of services, financial viability for legal aid practitioners and organisations, and clients’ access to advice and representation. Above all, it argues for a whole-system perspective on legal aid, but one which is informed by evidence and a detailed understanding of the participants in the market.

The focus on one sector, across the branches of the legal profession, helps to understand legal aid as one part of a whole system. It enables assumptions about markets and legal aid to be examined in context. The frameworks for understanding demand and supply in immigration and asylum law should be equally applicable to any category of law and, to some extent, other public services. They should also be relevant over time, although policy changes rapidly. The core concepts of demand, supply, client access and quality will remain central to any systems for governing migration, justice, social welfare and legal aid, and this book aims to offer a toolkit for interpreting the human and economic costs and benefits of reforms.

The Lord Chancellor has a legal duty to secure the availability of legal aid services in certain categories of law. They also have a duty to appoint a senior civil servant as Chief Executive of the Legal Aid Agency (LAA), the executive agency of the Ministry of Justice (MoJ), which is responsible for administering legal aid.

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Challenges for Publicly Funded Immigration and Asylum Legal Representation
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Even though legal aid is available for people seeking asylum, there is uneven access to advice across Britain.

Based on empirical research, this book offers fresh thinking on what has gone wrong in the legal aid market. It presents a rare picture of the barristers, solicitors and caseworkers practising immigration law in charities and private firms. In doing so, this book examines supply and demand and illuminates what constitutes high-quality legal aid work/provision, subsequent conflicts with financial rationality and how practitioners resolve these issues.

Challenging existing legal aid policy, this book presents innovative insights to ensure public service markets around the globe function well for all those involved.

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What drives demand? What drives supply? How can the two be made to match in a way that safeguards rights, dignity and the rule of law, and secures, as far as possible, value for money? The answers to these questions should form the bedrock of all legal aid policy and influence the design of asylum procedures. Without understanding demand, it is impossible to operationalise a market that protects availability and quality of services. Yet there is no clear framework for making sense of demand and supply in social welfare legal aid which, as Moorhead (2004) put it, is an obstacle to the development of solutions.

To address this problem, two main arguments are made here:

  • There are different kinds of demand. Any aspect or instance of demand for asylum legal services can be placed into a four-square matrix, which allows for exploration of the drivers of each type of demand and their impacts on cost.

  • The failure to build the market around demand in immigration legal aid has led to systems of payment and auditing which are poorly aligned with the drivers and consequences of demand, creating obstacles to high-quality provision responsive to that demand.

What do we already know about demand? Legal aid received little academic or policy attention until the early 1990s, when the managerialisation of public services was well underway and politicians began to view legal aid spending as out of control.

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To what extent is the market, in its current form, capable of ensuring that the quality of work done on legal aid is adequate? It has been argued throughout the book that the funding regime creates an explicit conflict between financial rationality and quality in the sense of ‘doing all the work the case needs’ and responsiveness to in-case demand. The peer-review criteria used by the LAA’s independent peer review panel havebeen validated in other research and are applied by both practitioners and funders for substantive quality assessments, so are treated here as a reasonable framework for discussing quality (see Appendix). The market-based system of procurement introduced following the Carter review (2006) was intended to maintain quality through market mechanisms and that system of peer review.

The fundamental idea behind public-choice markets is that users have a choice of providers, who therefore have to compete for custom. They may compete for clients directly, or they may compete for a contract to provide a service to everyone who qualifies for it. In either case, the competition (hypothetically) means that providers have to offer a good quality of service (whatever ‘quality’ means to the choosers) at a reasonable cost (whatever that means to the payer).

Choice, Voice and Exit are the main strategies supposedly available to members of the public to maintain quality in public services (Hirschman 1970). They make a Choice of provider when they enter the market, based on reputation and whatever other factors are important to the user.

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In 2019, the Tribunal and Home Office began piloting a new system for appeals, aiming to promote early review of the evidence and withdrawal of poor-quality decisions, or those where the new evidence and legal arguments suggested the appeal should succeed. In the new model, the Home Office should upload all of its paperwork to a shared platform. The appellant’s representatives should respond with all the evidence that they wish to rely on and an Advance Skeleton Argument (ASA). The Home Office should review all of this before the hearing and, if appropriate, withdraw the refusal decision and grant asylum.

This would have been an entirely positive development, except that legal aid payments were not aligned with the in-case demands of the pilot scheme. The barrister had to review all of the papers, then write and submit a skeleton argument as if attending court. If the Home Office decided to grant asylum, the barrister would not get paid because the hearing would not go ahead. The problem was brought to the attention of the LAA, the Home Office and the Tribunal. Barristers from some of the main immigration teams said they would not participate until legal aid funding was amended to fit the new demands. Consultation, through the Civil Contracts Consultative Group, was ongoing and the Group was assured in the March 2020 meeting that: ‘The policy team were keen to take on board the rep bodies’ views and so would consult with them before implementing the changes’ [emphasis added] (CCCG, 2020).

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