By Stephen Meili
Following on from Jo Renshaw’s piece on this blog about the impact of the legal aid cuts on immigration, Stephen Meili presents an insight into lawyers’ perceptions of these cuts on asylum claims.
As part of my current research project on the circumstances under which international human rights treaties help – or hurt – asylum seekers, I have been interviewing UK lawyers (26 so far) who represent claimants and/or the government in asylum proceedings. One of the more intriguing sets of responses I’ve received thus far concerns the lawyers’ perceptions of the likely impact of cuts in legal aid funding scheduled for April 2013 (an earlier round of cuts contributed to the closing of Refugee and Migrant Justice and the Immigration Advisory Service, which provided legal assistance to large numbers of refugees and other immigrants). Even though this next round of cuts largely exempts lawyers representing asylum-seekers, lawyers in my interview sample have described the cuts as “drastic”, “devastating”, and likely to have an “enormous” impact on persons seeking refuge from persecution.
The lawyers, who include solicitors and barristers (including barristers who represent the government in asylum proceedings), cite several reasons for these grim assessments. The most common response has been that the cuts will reduce the number of lawyers representing asylum-seekers because most lawyers currently doing so offer other types of advice to immigrants that will no longer be funded through legal aid. As a result, many of these lawyers are likely to leave the immigration field entirely. Another consistently-cited concern is that people with otherwise valid claims under Article 8 of the European Convention on Human Rights (the right to respect for family and private life) will be returned to their home country. As one lawyer put it, “I’m sure that every day dozens of people will be removed from the United Kingdom who, were their [Article 8] case dealt with properly, would have succeeded in demonstrating that it was not proportionate to remove them.”
In addition to these oft-cited effects, a few lawyers articulated other, less obvious impacts that demonstrate the logical inconsistency of the Government’s proposals. For example, at a time when the Government is otherwise trying to reduce the number of asylum claims in the U.K., the cuts will likely increase the number of asylum claims because it will be one of the only government-funded ways to seek to remain in the U.K. The consequences of this development are significant, and go beyond the obvious one of an increased judicial caseload. Many litigants in these cases will be unrepresented, which will put even greater pressure on limited judicial resources. Moreover, lawyers I interviewed predict that many of these cases are likely to be of questionable merit, which will heighten public hostility toward refugees generally. As one lawyer put it, the “panic” over asylum-seekers will return. Another lawyer indicated that the rise in such cases will impair the reputation of lawyers, who will be viewed as litigating baseless claims. And finally, lawyers anticipate that the increase in less meritorious asylum cases will intensify what they termed the culture of disbelief among asylum adjudicators.
One response that seemed counterintuitive at first blush, but logical upon further reflection, is that the upcoming legal aid cuts will hurt government lawyers, as well as those who represent refugees. Why? Because lack of funding for most immigration-related matters will mean that solicitors who later in their careers represent the government in refugee cases will no longer acquire experience doing a range of immigration work.
It was also intriguing to hear lawyers articulate two silver linings to legal aid cuts. One is that they will probably weed out some of the lesser-skilled immigration lawyers currently representing refugees. A second is that because of the last round of cuts some of the more skilled lawyers stopped representing refugees and became immigration judges, which has improved the overall quality of the immigration judiciary.
But the following overall assessment reflects the views of most of the lawyers I’ve interviewed:
“It will stop people being able to assert their rights. And it will not save money because it will mean that [applicants] lose their cases for the wrong reasons and re-emerge somewhere else in a different context – the criminal justice system, or the immigration detention system or the mental health system, or somewhere else down the line and their problems will not go away; it just means that they will get solved later in a different context. It’s a completely pointless exercise … but there is no debate about it because the government knows it can do what it wants to migrants because it is not a popular cause.”
In the aggregate, lawyers’ concerns about impending legal aid cuts extend beyond their obvious impact on individual refugees. They suggest that the cuts will damage the reputation of the legal profession, the efficiency of the judiciary, and the efficacy of human rights treaties, such as Article 8 of the ECHR. For without adequate enforcement, such treaties lose their meaning and become mere window dressing that states feel free to ignore.
Stephen Meili is Vaughan G Papke Clinical Professor in Law at the University of Minnesota Law School. He is currently on leave at the University of Oxford, where he is an Academic Visitor at the Faculty of Law and Senior Associate Member of St Antony’s College.