Droughts and Deserts: a report on the immigration legal aid market
In this article, we provide you with an overview of Dr. Jo Wilding's recent report on the immigration legal aid market, "Droughts and Deserts", which aims to demonstrate where problems have arisen and to propose ways forward, taking a systemic and holistic view that facilitates all parties obtaining the value they need from the system.
The full report is available here, and our summary can be downloaded here. The report delves into a detailed analysis of the difficulties currently at bay for both legal aid practitioners (caseworkers, solicitors, barristers) as well as clients in need of legal support.
- Demand and supply are misunderstood at policy level, which has caused not only advice deserts (where there are no legal aid providers at all) but also advice droughts (where there appears to be a supply but clients cannot access advice or representation).
- Funding – the standard fee is inadequate for high-quality work, across all branches of the legal profession.
- Quality, financial viability and clients’ access to justice – high-quality providers reconcile quality and financial viability by reducing access for clients or by prioritizing work which is paid at hourly rates
- Some providers cap the amount of work done on cases at the amount they will be paid on the standard fee – they avoid exceeding that level due to a risk of not being paid; financially sound but the lack of detail is said by practitioners, judges and support workers to harm the overall case
- Poor-quality providers are protected in the market – clients lack information when they choose a provider and are prevented from changing if they discover the existing one is of poor quality
- Market failure – there is already a market failure in immigration and asylum legal aid, both in terms of geographical availability of services and the ability to ensure adequate quality
The Legal Aid Agency (LAA) currently operates under a ‘standard fee’ which is meant to include all costs incurred by a legal practitioner when tackling an asylum claim. The standard fee for asylum appeals work does not cover the work high-quality practitioners and organisations do on the case. For barristers in an asylum appeal, the standard fee is £302(gross). Taking the hourly rates as a reference, the standard fee cover as an example, three hours of preparation and attendance, including a discussion with the client before court; one-and-a-half hours’ travel and waiting and an 80 minute hearing, amounting to £303.92. However, barristers said that this would be an exceptionally short time in all three sections, even in the simplest cases. As a minimum, they would spend three to five hours on preparation in a case which presented no special legal or factual challenges, plus half an hour in conference with the client at court before the hearing. Barristers in the study said the simplest cases cost around 1.5 times the standard fee paid for doing them. The private firms and not-for-profits in the study said the average case cost double the standard fee paid for their work.
Out of approximately 13,000 registered barristers in England and Wales, only 700 specialise in immigration and many of these avoid taking on legal aid work since they are at risk of not being paid for their services. The standard fee does not adequately cover the costs of high-quality work. This is what creates the so-called ‘advice deserts’ where applicants are unable to find someone to take on their case.
The idea of markets for public services is that they should control both price and quality. Competition between ‘suppliers’ should keep price down and quality up, because of the need to attract customers. But the existing system protects the market position of poor-quality providers in four main ways:
1. The Asylum seekers are usually accommodated on a no-choice basis in a part of the country where there may be few or no legal aid asylum lawyers
2. The auditing regime (by its own admission) is largely unable to discern substantive quality – that is, whether the advice given is correct, whether the instructions taken from the client are detailed enough, whether the lawyer does enough evidence gathering. This is only assessed on peer review, which is little-used. Combining that with the standard fee means there is a strong incentive to cut quality and work within the guaranteed payment.
3. There is no legal assistance for the complaints process, and most clients do not feel able to undertake it alone, even if they understand their right to complain.
4. Even if the asylum seeker is aware of the low quality of the advice they receive, they are unable to change to another provider unless they have been through the complaints process and had a complaint upheld.
The report states that supply and demand have been severely misunderstood at policy level – supply is currently assessed through unused matter starts and should rather be analysed from the point of view of functionality. What LAA ought to do, as a monopsony purchaser that has a responsibility to regulate the market, is oversee whether providers have the capacity to meet potential-client or in-case demand.
If there is not to be a catastrophic market failure, policy-makers will need to make changes which support those lawyers and organisations that wish to continue (or resume) providing good-quality legal aid services.
The contentiousness of immigration at the moment means that frequent changes to law and policy, often aimed at imposing a harsher regime on migrants, will drive legal challenges which have to deal with the lawfulness of policies and other provisions. Judicial review applications will probably only increase, following the harshness of recent government decisions regarding immigration.