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Friday, 5 June 2009

Asylum seekers wrongly refused legal aid

Poor pay sees lawyers stop legal aid workImage by publik16 via Flickr

By Frances Webber

A local law centre project to help unrepresented asylum seekers has demonstrated that the vast majority are wrongly refused legal help for their appeals.

In June 2007, Devon Law Centre set up its Asylum Appellate Project (AAP), to help asylum seekers refused public funding for their appeals to obtain it, and to obtain the evidence necessary to change public policy. The law centre's second report demonstrates the importance of this project. It has succeeded in reversing funding refusals in thirty-eight of the forty-five cases it has dealt with (84 per cent), and ten of the thirty-three asylum appeals it has dealt with (30 per cent) have resulted in permission to stay being granted.

Asylum seekers whose claims are refused by the Home Office should be granted legal aid for their appeal provided their claim has at least a 50 per cent chance of success. But solicitors who take on too many unsuccessful claimants can lose their contract with the Legal Services Commission. This has made solicitors extremely cautious about the cases they grant legal aid to, and has led to a 'cherry-picking' mentality whereby they accept only the cases which are obviously going to succeed. And in a vicious circle, appellants who have no legal representation have a much lower chance of success on appeal - partly because asylum seekers lack the necessary expertise to know about calling witnesses or obtaining reports in support of their claim, let alone the finance to do so, and partly because, as the project appears to confirm, immigration judges take far less trouble over unrepresented claimants. There is an assumption that, because the person has no legal representation, their claim must be unfounded. So the wrongful denial of legal aid means that genuine asylum claimants are likely to have their appeals rejected.

People helped to gain asylum by the project include a Chinese trade unionist who had been tortured in a forced labour camp, Zimbabwean opposition members, a member of a persecuted Somali clan and two Pakistani sisters who were victims of serious violence, rape and abuse. Without the work of the project, all of them would have been forced either to go back to face the situation they fled from or to live a destitute life on the margins in the UK.

Although on a small scale, based on the asylum seekers assisted in Devon and Cornwall, if the project's results were replicated nationally, it would mean that solicitors are wrongly refusing legal aid in four out of five cases, and that in almost a third of those cases, representation would result in a successful appeal. This is an invaluable report for those campaigning for access to justice for asylum seekers.

Download the report (Word file, 83kb)

[1] Devon Law Centre, Asylum Appellate Project: Second Year Report, June 2009.
The Institute of Race Relations is precluded from expressing a corporate view: any opinions expressed are therefore those of the authors.

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