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What works well in the provision of immigration legal advice to forced migrants living in Wales?
Interviewees believed that ‘most people’ do find a representative for initial asylum applications in Wales, despite the difficulties in accessing representation for fresh asylum claims and other matters, and the problem of clients being dropped before appeals. Some of the legal aid providers in Wales were described as doing good quality work (while others are ‘best avoided’), and the networks between legal representatives and support organisations are working well in some well-established areas.
In one dispersal area, a support organisation interviewee felt that the legal aid providers generally do a good job (within the constraints of legal aid) because there is a level of accountability within the local community, because they can generally work out from a user’s description which representative they are with. The same could not be said when the representatives were in England. Interviewees also described a close network with co-operation between support organisations, the local authority and the MP’s caseworker, which combined to give fairly holistic support around access to advice, chasing the Home Office, and preventing homelessness.
In another dispersal area, interviewees were positive about the recent (2018) arrival of a legal aid provider, having previously had to travel out of the area for representation, though they recognised the precarity of relying on a single caseworker for the entire area. Cardiff is described as having more providers and support organisations than elsewhere, and several interviewees cited Asylum Justice as a particular strength, albeit that they felt it needs far more capacity than it has.
The 2 legal aid providers in a third dispersal area received praise from interviewees, although there is not enough provision to meet the need in the area. It also has ‘very good partnership of organisations working together’, which ‘is so well established that people know where to refer to.’ This ‘took set-up work at the beginning… to pull it all together’ but no longer needs strong co-ordination. This perhaps offers a model for new and emerging dispersal areas within Wales, for understanding the level of input needed to get a network well established, though it is unclear whether it is feasible to establish a similar network in a small dispersal area.
What gaps exist in this provision (to include mapping the availability of current immigration legal advice services on offer to regular migrants in Wales)?
Particular shortages exist in Wales for the following matters:
- domestic violence cases, particularly for the DVC, and there is no provision for those who are just over the legal aid means threshold but are nevertheless unable to afford the cost of legal support to make an application under the domestic violence provisions. This does appear to result in some women being unable to escape abusive relationships
- fresh asylum applications, where an initial asylum claim has been refused, sometimes because of poor quality legal provision (whether in Wales or not), or where circumstances have changed in the home country
- all immigration-related public law matters, including age assessment challenges for unaccompanied children and issues around local authority support
- provision for matters outside the scope of legal aid, particularly applications for leave to remain for people who are undocumented, or to extend leave to remain on the ten-year route to settlement. This shortage of non-legal aid advice arises in many parts of the UK, but there is a severe shortage in Wales
- prisons. There were 217 foreign nationals in prison in Wales as of December 2020, with no routine access to immigration advice, and significant barriers for legal aid providers to take their cases. The Welsh Refugee Council has begun working with the Home Office and prison service to build capacity among prison staff to understand the different possibilities facing foreign nationals, as well as seeking to develop ways of supporting released prisoners who may not (or no longer) have a secure immigration status, ‘Otherwise we’re just driving more irregularity and homelessness and criminal behaviours by not intervening’
There is also a severe shortage in all parts of Wales apart from the area around Cardiff, Newport and Swansea. This has become more relevant as local authorities throughout Wales have taken in resettled refugees under the Syrian, Afghan and most recently the Ukrainian schemes, as well as EU nationals or their family members beginning to encounter immigration legal problems. One MP felt that all local authorities are now seeing immigration issues, but that smaller authorities would never be able to employ their own immigration specialists. They believed that an in-house solicitor shared by all authorities would very significantly support those local authorities.
What challenges, barriers and/or facilitators exist in the provision of immigration legal advice to forced migrants living in Wales?
Many of the challenges and barriers apply throughout England and Wales, and are briefly set out in relation to the impact of UK government legal aid cuts below. There are, of course, wider social and cultural barriers to access relating to power relations, race, class, and so on, but discussion of these is beyond the scope of this report.
Funding cuts and burdensome auditing have reduced the number of providers, limiting access to legal aid provision, with large geographical areas of advice desert in immigration and other social welfare areas of law. Alongside this, cuts to local authority funding have caused cuts in advice services, again across the board in social welfare, causing the closure of many not-for-profits and law centres. Speakeasy in Cardiff is the only currently operating law centre in Wales, and it does not do immigration work at present. This is exacerbated by poor transport links from some parts of Wales, making it difficult for people to access advice if they live outside the areas where it is available.
Aside from funding, the immigration and asylum processes implemented by the UK Home Office drive up need for immigration legal advice. The asylum system is complex and increasingly slow, meaning each individual is likely to remain for longer in the asylum process, in asylum accommodation, and in the caseload of a legal representative. Given the high grant rate for certain countries, many of these people could be granted asylum quickly, moving into communities, freeing up asylum support accommodation and legal advice capacity for genuinely complex cases. The hostility of the immigration system adds to advice demand: people dare not make their own applications for fear that a single error will jeopardise their leave, or at least their progress along the ten-year route to settlement. The 10 year route, with expensive renewal applications every 2.5 years (with limited new exceptions) drives a relentless demand for immigration advice and casework which no amount of capacity building will ever fulfil. For a more detailed discussion of this issue, see Wilding, Mguni and Van Isacker (2021).
All of this, in turn, drives demand for the work of MPs and their caseworkers, who become the last resort when people cannot get responses from the Home Office or cannot access legal advice. When organisations and MPs have no real referral options, this leads to misplaced signposting, where people are sent to organisations which cannot help or are already over capacity, using up further capacity in turning people away. For example, Asylum Justice received two referrals in a month for criminal matters, where the individual happened to be a migrant.
Sustainable funding is an important part of the solution, but it is not a quick solution because the advice sector has been badly depleted and there is no pool of qualified caseworkers or solicitors waiting to move. The sector needs strategic re-growing, through financial support which is secure over a long enough period to train new caseworkers and lawyers, or at a high enough level to attract them to relocate. One possibility is that there are lawyers willing to move out of legal aid into grant-funded organisations, to continue doing immigration legal advice work while escaping the administrative burdens of legal aid, but this needs to be carefully structured so as not to undermine legal aid: ‘use it or lose it’, as several interviewees commented.
This discussion highlights the complex issues around devolution and reserved matters, which also arise in Scotland. The overarching policy to become a Nation of Sanctuary is frustrated by the UK government’s hostile environment policies, much as Jones and Wyn Jones (2019) found that Wales’ progressive policy intentions in criminal justice are frustrated by policy from Westminster. Although both justice and immigration are reserved to Westminster, this also impinges on specific issues such as age assessment of unaccompanied children, since the Children Act which governs this in England does not apply in Wales, but there are no firms doing age assessment judicial review work in Wales, which has hampered development and understanding of the law relevant to Wales. It would be useful to investigate in the migration context precisely where Wales has powers to depart from UK policies on benefits, housing, social care, and so on, perhaps through an expert research and advisory group.
How adequate and timely is immigration legal advice for those with varying immigration statuses and those with particular vulnerabilities or with protected characteristics, such as migrants that are children, LGBTQ+ or disabled?
The position for some specific groups is dealt with in detail in the Findings section above. There is variation across Wales, because much depends on individual legal practitioners’ and support workers’ knowledge and expertise. Many of the problems are systemic: the Independent Chief Inspector of Borders and Immigration found that the Home Office deals inappropriately with claims based on sexuality, including by stereotyping, viewing sexually explicit material, asking questions of substance in the screening interview, and asking inappropriate or sexual explicit questions in the interview (Vine, 2014; Rainbow Migration, 2018). Legal aid practitioners’ ability to support clients and challenge this is negatively affected by legal aid cuts, as explained in the following section. Similarly, the bigger problem for disabled migrants may be housing, rather than the asylum or immigration claim per se, but in circumstances where there is very little public law provision or asylum support advice, which may make it difficult to challenge the decisions at the root of the housing problem. The fragmentation of legal advice detracts from the ability to deal holistically with cases of intersectional need arising from systemic problems.
As for support for those with varying immigration statuses, there is very little immigration advice and casework available in Wales for people with a status other than first-time asylum seeking. People with a visa but seeking support on a domestic violence case, or people outside the asylum system and with no leave to remain, face an almost total lack of availability of immigration advice. So do ‘failed asylum seekers’ making later applications based on family or private life or long residence. The same applies to those needing to make fresh asylum claims after a refusal. If (free or low cost) advice is available at all, it is often subject to a long wait and dependent on the capacity of one Level 3 and one Level 2 organisation, both based in Cardiff, or on persuading a private firm or legal aid provider to work pro bono. This drives debt, poverty, destitution and irregularity within communities in Wales, and affects numerically the largest group of people.
What is the impact of the UK government’s decision to reform legal aid provision on the availability and adequacy of immigration legal advice provided to forced migrants living in Wales?
The impact of legal aid cuts in 2013 has been severe throughout England and Wales. The removal of almost all non-asylum immigration work from the scope of legal aid had a profound effect on both users, who were no longer able to access legal representation to regularise their immigration status, and on providers, who lost a large proportion of their work. Although they were poorly paid, non-asylum cases tended to be quicker to conclude, close and bill, so they assisted with cash flow.
Also in 2013, administration of legal aid moved from the Legal Services Commission to the Legal Aid Agency, which implemented a ‘zero tolerance’ auditing regime after its predecessor had its accounts qualified by the National Audit Office for four successive years. This auditing is wholly focused on financial issues and procedural matters, such as whether the provider has evidence of the client’s means on file and whether all boxes in the assessment are ticked, including in the ‘partner’ column, even when there is no partner. One of the Welsh legal aid providers was almost forced to close because of auditing errors by the Legal Aid Agency, which resulted in the Agency refusing to pay for work done for a period of time. For providers who have withdrawn from legal aid across England and Wales, auditing was an even more significant factor than low fees (Wilding, 2021, 2022).
These cuts followed a move to fixed fees in 2007, as part of the marketisation of legal aid procurement, and a ten percent fee cut in 2010. The Immigration Advisory Service went into administration in 2011, closing its 14 offices, including in Wales and the South West and North West of England, which also served people living in Wales. Refugee and Migrant Justice (formerly the Refugee Legal Centre) went into administration the previous year and, although it did not have any offices in Wales, it had a well-regarded training programme for new caseworkers which (unintentionally) operated as a resource for the entire refugee law sector. Its closure gave rise to a growing recruitment crisis throughout England and Wales, which has been particularly difficult to address in Wales because there are fewer training opportunities, fewer supervisors, and fewer organisations which can afford training, meaning that Welsh graduates have to go elsewhere to qualify as lawyers.
As set out in the ‘Legal aid provision’ section above, this has left few providers in Wales, and these have had to limit legal aid capacity to cap their financial losses. The unpaid administrative burden on providers, excessive risk and low fees mean that providers have to cross-subsidise immigration legal aid work with other income sources and this is the reason why most do not use all of their allocated ‘matter starts’ or new cases per year (Wilding, 2019). Consequently, Wales has lost one fifth of its provider offices since the 2018 round of contracts (3 out of 15), including the Duncan Lewis office in Cardiff which was one of the largest providers for Wales and absorbed some of the unmet demand in the South West of England.
For clients, the cuts mean that 1) there are fewer legal aid providers available (although 2018 marked the entry of the sole provider in north Wales); 2) that those providers have less legal aid capacity; 3) that people ‘get less time with their solicitor’, as a support organisation put it, because lawyers’ work is constrained by legal aid fixed fees; and 4) that many people find themselves outside the scope of legal aid altogether, or must first secure Exceptional Case Funding, which has been shown to be inadequate as a protection against breaches of human rights (Marshall, 2020).
The role of Welsh Government, local authorities and public service partners in providing a strategic and co-ordinating lead to ensure sufficient, quality immigration legal advice services to forced migrants living in Wales
First, it is not necessarily useful to distinguish between ‘forced’ and other migrants in this context. Several respondents criticised the primary focus on ‘forced migrants’ in this research. The distinctions are not as clear cut as might be expected, especially as people move between categories, with risks of exploitation arising because of people’s immigration status. Welsh Government should therefore aim to provide a strategic lead in ensuring access to advice for all migrants who find themselves in a position of constrained choice, and with inadequate means to secure privately funded immigration legal advice.
The Welsh Government’s efforts to implement creative and compassionate policies to circumvent the worst effects of the UK government’s hostile environment policies were recognised and acknowledged, as are the constraints of funding and devolution. Interviewees also commented on the positive impact of Welsh Government funding on support organisations, though this had less of a direct impact on legal advice (with the important exception of Asylum Justice). However, there are frustrations around what are perceived as delays in implementing solutions because of a lack of data. On some issues, like the likely cost-benefit of commissioning advice for people with no recourse to public funds, clear data will be difficult to collate without piloting the proposed solution and identifying savings and benefits accruing during the pilot.
Another source of frustration among the migration support sector and some local authorities is the lack of specialist expertise within many local authorities, particularly social services. It is acknowledged that, for example, children’s services are overwhelmed with demand and it is understandable that they cannot maintain the required level of expertise when numbers of unaccompanied children and care leavers fluctuate within each local authority. The most useful role for Welsh Government here could be to take on an in-house legal adviser or solicitor, or create a centre of excellence, accessible to all local authorities in Wales to provide legal updates, advise on correct procedures, and ensure that they have access to the level of expertise needed. It was also argued by interviewees that the Welsh Government needs to legislate to ensure adequate expertise in local authorities, rather than only providing unenforceable guidance.
The Regional Advice Networks do not appear to have a significant impact on immigration legal advice, and do not have enough specialist immigration input to do so, but interviewees did not think that any of the immigration advice organisations had capacity to take a meaningful part in the networks. As one organisation put it, any partnership or network would need to bring in both funding and capacity: funding alone will not bring in a rapid increase in capacity if there are no qualified lawyers and caseworkers to employ, and increased capacity is not sustainable without increased, stable, long term funding.
Limitations and further research
The data collection took place over a relatively short period (February to April 2022) during what might be considered an unusual period of time, following two years of pandemic-related instability. Asylum and immigration procedures, asylum accommodation, Tribunal procedures, and methods of delivering legal advice and other support have all undergone significant changes, whether temporary or transformative, and much remains uncertain at the time of writing.
The research offers a detailed picture of the situation as of May 2022, but it would be very useful to monitor it with longer term research that is capable of identifying new gaps in access to advice, as well as any improvements arising from interventions and strategies adopted. As a larger number of local authorities in Wales gains populations of unaccompanied children and resettled refugees, and as people throughout Wales have new needs for advice and support around pre-settled status or a denial of any settlement status, it would be important to include these new stakeholders in follow-up research.