Asylum seekers must get good quality legal advice throughout the asylum process. Without legal advice, they may not know what they need to demonstrate in their claim. They may also be unable to get hold of evidence in the form of expert reports, human rights reports and case law - these are crucial to help with their claim.
Many asylum seekers do not manage to obtain advice before their asylum interview. Some are even forced to represent themselves at appeal before the Asylum and Immigration Tribunal (AIT). Accessing legal advice is particularly difficult for asylum seekers dispersed to areas of the country where there are very few solicitors who specialise in asylum law. In some dispersed areas, there are serious shortages of solicitors qualified to do asylum work. See the directory at the end of this section for contact details of legal organisations that specialise in asylum and immigration.
Note that UKBA’s asylum support does not cover transport costs to visit a solicitor. Legal help covers this.
Regulation of immigration advice
Office of the Immigration Services Commissioner (OISC)
When the Government introduced the 1999 Act, it set up the Office of the Immigration Services Commissioner (OISC) to regulate immigration advisers and crack down on unscrupulous or incompetent advisers.
Anyone giving advice on immigration or asylum in the UK must be registered or exempt from registration with the OISC. It is a criminal offence to provide immigration (including asylum) advice as part of a business (even a not-for-profit business such as a refugee community group) without being either registered or exempt from registration by the OISC.
Qualified solicitors or barristers are regulated by the Law Society, the Law Society of Scotland and the Bar Council, which have show the OISC that they are carrying out the same standards and checks.
Voluntary and non-for-profit organisations must seek exemption from registration, but do not pay a fee. You can register for three levels of service:
Level 1: An adviser registered to Level 1 cannot make an application for asylum on behalf of a client. Their work is limited to initial advice.
Level 2: An adviser registered at Level 2 can undertake asylum work. This includes all aspects of asylum applications and related human rights applications.
Level 3: An adviser registered at Level 3 can undertake advocacy and representation, including appeals before the AIT and specialist casework.
OISC advisers cannot carry out judicial review work. OISC also has the power to investigate and determine complaints made against immigration advisers. Find the rules, code of standards, competencies and complaints scheme on the OISC website.
We recommend the following for legal advisers working with asylum seekers:
- A legal adviser should always arrange an interpreter when one is requested
- They should always have the current address of their client
- If a legal adviser feels their client will not qualify for legal help an explanation for this should be provided in writing
- Legal advisers should write to their clients regularly to keep them informed on the progress of their case. These letters should never be ignored. If the client cannot understand these, help should be sought
- The legal adviser should give their client copies of all the work they do on their behalf. If translations cannot be provided, an interpreter should be booked to go through the information with the client.
- A client should always be accompanied when attending important interviews
- All phone calls and letters to the legal representative from the client should be responded to
- The legal adviser should give the client their contact details so they can be passed on to other service providers advising them
Community Legal Advice
In April 2000, the Government set up the Community Legal Service to improve the public’s access to quality legal information, advice and services. The service is now called Community Legal Advice (CLA). The CLA Quality Mark shows that an organisation meets the quality standards set by the Legal Services Commission (LSC) for the purposes of publicly funded legal work (see Legal aid below). The quality mark can potentially apply to any organisation that gives legal advice and also information about legal rights and entitlements.
Finding an adviser
To find an LSC funded adviser call the Community Legal Advice on 0845 345 4345. A full list of service providers holding the quality mark can be found on the CLA website or in the CLA legal adviser directory which local libraries should hold.
A list of OISC registered advisers can be found on the OISC website (click on adviser finder) or by calling the OISC helpline on 0845 000 0046.
Legal aid
In England and Wales, the Legal Services Commission (LSC) manages legal aid. Private law firms, law centres, citizens’ advice bureaux and voluntary organisations in England and Wales hold contracts with the LSC to provide free legal aid to people who need legal advice and representation. The LSC operates a fixed fees system. It means that a legal adviser doing a particular type of case receives the same payment for the case regardless of how much work the legal adviser needed to do on the case. To find the nearest franchise in the CLA directories, call CLA on 0845 345 4345 or go to their website.
There are different arrangements in Scotland and Northern Ireland. For more information contact:
The Scottish Legal Aid Board
44 Drumsheugh Gardens
Edinburgh EH3 7SW
Legal Aid Helpline: 0845 122 8686
Email: general@slab.org.uk
The Northern Ireland Legal Services Commission manages legal aid in Northern Ireland.
The Northern Ireland Legal Services Commission
2nd Floor
Waterfront Plaza
8 Laganbank Road
Mays Meadow
Belfast BT1 3BN
Tel: 028 9040 8888
Fax: 028 9040 8990
This section deals mainly with the provision of legal aid in England and Wales.
There are different forms of funding available for advice and representation at different stages of the asylum process.
Preparing and making an asylum application
Legal help pays for advice and assistance in preparing an asylum application. The LSC operates a fixed fees system whereby legal advisers receive the same fee for all cases of the same type regardless of how much time they spent on the case unless the case is exceptional. The Immigration Law Practitioners Association argues that the fixed fees are unrealistically low and has caused many of their members to stop doing legal aid work. It has become increasingly difficult to find a lawyer to take on immigration cases.
However, in some asylum cases the fixed fees system does not apply. For more information about the type of cases exempted, visit the Immigration Law Practitioners Association.
Preparing an appeal and representation before the AIT
Funding for appeals is called Controlled Legal Representation (CLR). This pays for representation in the Asylum and Immigration Tribunal. It cannot be used to pay for asylum support appeal hearings before the asylum support adjudicators. Solicitors are expected to only grant CLR if the prospects of success of a case are at least 50 per cent (this is knows as the merits test).
Further legal advice and representation
Public funding certificates are issued by the LSC for judicial review proceedings in the High Court and for further appeals to the Court of Appeal.
You can calculate eligibility under the means test and see full details of various public funding tests on the Legal Services Commission website.
Means and merits testing
As with all applications for legal aid, the client will have to pass a means test in order to qualify. Clients should provide evidence of their income as soon as possible.
An adviser providing legal aid is required to obtain proof of client’s income. This includes payslips, letters from the Jobcentre Plus, the Home Office’s UKBA asylum support, or anyone else supporting the client.
Preparing and making an asylum application
Even if an asylum applicant passes the means test, they do not automatically get legal help for making their application. Asylum applications are also subject to a merits test known as the ‘sufficient benefits test’.
Legal help is only provided if it is of sufficient benefit to the client – in other words that there is a legal case to argue. This essentially is designed to avoid vexatious claims. The LSC accept that legal advisers normally need to spend some time taking initial instruction from a client but are expected to make a judgment about how much work is required. Most asylum applicants should meet the ‘sufficient benefit test’. The sufficient benefit test must be applied as long as the case is in process.
Preparing an appeal and representation before the AIT
Controlled Legal Representation (CLR) is provided for asylum appeals before the Asylum and Immigration Tribunal. The merits test for CLR is more stringent and has to be applied right from the start of an appeal case. The prospect of success in a case has to be 50 per cent in order fro CLR work to be carried out.
If the prospects of success are unclear or borderline, an appellant should receive CLR if their case is overwhelmingly important to themselves, if it raises significant human rights issues, or if the case is of significant public interest.
Such cases can be problematic as individual solicitors may take a completely different view as what is ‘borderline, unclear or significant’. If a client is refused CLR under the merit test, their solicitor should notify him or her in writing of their right to appeal to the Funding Review Committee OF the Legal Services Commission using the form CLR CW4.
From April 2007, all immigration legal suppliers have been able to grant themselves CLR subject only to audit. They are expected to succeed in 40 per cent of the cases in which they grant themselves CLR. Many legal advisers are very cautious about granting CLR because if more than 60 per cent of their cases fail, it will jeopardise their contract and therefore their funding.
Legal advice for unaccompanied children and detainees
As mentioned in Preparing and making an asylum application there is a fixed fees reimbursement system for handling asylum applications. However, legal advice for unaccompanied children and for detainees is outside this system and is provided by exclusive contacting with certain firms who are required to provide legal services for these groups on a rota basis. This however places severe restrictions on children and detainees in relation to choice of adviser. If they are not happy with their allocated adviser they will no longer be able to go to an adviser elsewhere to take on their case. Only those with exclusive contracts will be able to act for them.
Making a complaint
All law firms and OISC regulated organisations should have an internal complaints procedure. They should let their clients know about this in writing when they take on a case. If an applicant is not happy with their legal adviser’s service, they should use this complaints procedure first and complain directly to the firm or organisation of the adviser.
If the complaint is not satisfactorily resolved, the client can complain to the Law Society if the adviser is a solicitor (or the Law Society of Scotland or Law Society of Northern Ireland). The Law Society can provide a special form to help clients make a complaint to their solicitor in writing. The Law Society also has a complaints helpline: 0845 608 6565.
In all other cases, the client can complain to the OISC. The OISC can take up complaints against solicitors but it tends to pass them on to the Law Society. Details about how to complain to the OISC and to download relevant forms are on the OISC website at: www.oisc.gov.uk
