In this page
Introduction to the recommendations
An aim of this research is to propose viable, evidence informed actions and recommendations for future policy development which could improve the immigration legal advice services provided to forced migrants living in Wales and address the gaps identified in this review. The recommendations include a number of proposals for the Welsh Government and local authorities to consider, all of which have costs attached and some of which would require consideration of rules on fair procurement. There are also recommendations for other bodies including the Home Office and Legal Aid Agency on matters which are outside the devolved powers of the Welsh Government. These are matters on which the Welsh Government could consider lobbying the relevant bodies, which would either reduce the need for immigration legal advice or help to increase provision in Wales.
[Square brackets indicate the section of the report to which the recommendation relates.]
Funding, commissioning, and building capacity of immigration legal advice
Consider employing a shared in-house immigration solicitor for Welsh local authorities. This could be on a similar model to that in the East Midlands Councils, where eight authorities share an in-house solicitor based in the region’s Strategic Migration Partnership, who advises social workers and others on immigration legal issues. This could cover identification of children in care with an immigration or nationality issue, advising on age assessment procedures, providing information on the authorities’ powers and duties in respect of people with No Recourse to Public Funds conditions, employment rights, rights of access to domestic violence refuges, and so on. This could build on Newport Council’s model of employing an immigration caseworker, who cannot advise clients directly, because the council as an entity is not regulated to give advice, but can advise the council, and identify and signpost people with immigration issues. This is likely to be particularly useful for smaller local authorities outside the main dispersal areas which do not have the resources to develop their own expertise, as immigration advice need grows in new areas.
Commission legal advice for matters which fall outside the scope of legal aid, especially around people who have No Recourse to Public Funds, need the Domestic Violence Concession, are homeless, are looked-after children, or have no leave to remain. The Nation of Sanctuary Plan mentions the risk of exploitation for people with NRPF but does not mention the role of legal advice in helping prevent this. [Specific groups; Legal aid provision]
Consider supporting existing legal aid providers to prevent further provider loss. This could include grants to providers with peer review scores of two (or higher) to protect the highest quality provision by cushioning financial losses from legal aid work, or ‘client care grants’ to support additional communications with clients which are unfunded on the legal aid fixed fee scheme. [Legal aid provision; Size and nature of the immigration legal profession in Wales]
Fund trainees, both in legal aid providers and non-legal aid organisations. The costs of training include trainees’ salaries, supervision, courses and exams. Good quality, effective supervision is expensive for organisations funded by grants or legal aid. The Scottish government recently offered funding for legal aid trainees in private firms and not-for-profits and may have learning to share. [Size and nature of the immigration legal profession in Wales]
Addressing geographical gaps
Support provision in north Wales, which is particularly poorly served. There is currently a single immigration legal aid caseworker in the whole of north Wales, operating without even administrative support. There is also a project to set up a North Wales Law Centre, which at the time of writing has funding to recruit a development manager and intends to provide immigration advice from different locations. Options for securing provision in the north include funding administrative or other support for the sole legal aid provider and supporting the new Law Centre’s ability to recruit an immigration lawyer, perhaps to do work outside the scope of legal aid. [Geographical accessibility of legal advice]
This might be achievable by requesting the Lord Chancellor / Minister of Justice to exercise the power in section 2 of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 to make grants and other special arrangements for different parts of England and Wales and different areas of law, in order to fulfil the duty to secure the availability of legal aid in accordance with the Act. This power has never been used and there is no formal procedure for requesting its use. However, such a request should be approached in consultation with experts in public law, with a view to challenging any refusal or non-response. [Geographical accessibility of legal advice]
Minimise recourse to remote advice, which is not an adequate solution to the geographical shortages, nor is it good trauma-informed practice. This can be achieved by ensuring adequate provision of face-to-face advice. [Geographical accessibility of legal advice]
Addressing case-type gaps
Treat domestic abuse survivors as a priority category for improving access to legal advice within or alongside forced migrants, regardless of their status or mode of arrival, because i) they have specific immigration advice needs which are not always met through legal aid (the DV Concession application and those who are just over the means threshold); and ii) they do not have the immediate access to accommodation and subsistence support that asylum applicants do.
In respect of legal advice, this might include underwriting refuge spaces for a period of time to enable survivors to access legal advice and the DV Concession, and seeking funding from a range of sources including the Police and Crime Commissioner, Levelling Up funds and other ‘pots’ to fund legal advice.
As with other issues, this could be implemented as a pilot on the basis of already-available information, while collecting data during that pilot to evidence the benefits and financial savings. [Specific groups: Domestic abuse survivors]
Information, support and legal literacy
Note that all of these proposed actions will require regular review and updating.
Work with support groups to build legal literacy resources both for migrants and for professionals working in the support sector. Both groups expressed a lack of understanding of the asylum and immigration systems, rights and entitlements to legal advice and other services, the standards and scope of work which could be expected from legal aid and other lawyers, and the consequences of making complaints. The in-house solicitor/immigration advisor (see recommendation 1 above) should also have a stakeholder engagement role via Wales asylum and migration forum, to support increased awareness around legal advice and literacy. [The importance of legal literacy]
Legal literacy work should include work with schools, health settings and other public services to support families and individuals with an immigration status problem to understand how to access support (before crisis point), to overcome some of the problems with exploitation and people receiving inaccurate advice and information through their communities. A variety of approaches and methods should be explored to maximise accessibility, recognising that translation of written information will still exclude some people. [The importance of legal literacy]
Provide an up to date list of legal aid providers on the Sanctuary website, indicating which ones can do judicial review work. A number of support organisations do not know where to find comprehensive information about legal aid provision in Wales and this would be a simple action. [The importance of legal literacy]
Provide easily understandable information about unregulated advisers on the Sanctuary website, including a toolkit showing how to check whether an adviser is regulated, and ‘red flags’ that indicate they might not be. This could be part of a wider set of legal literacy materials around what to expect from a legal aid representative or other adviser and what is outside their remit. [The importance of legal literacy]
Make available independent information about people’s right to complain about legal representatives where needed, the appropriate standards of service to expect, and the consequences of complaining; and consider possible sources of funding to cover support with complaints. [Quality]
Ensure wide dissemination of the WSMP’s Asylum Dispersal Toolkit to ensure local authorities entering into dispersal understand the importance of access to legal advice. Similarly, other toolkits which already exist or are prepared in the future should be made available in a single repository where local authorities can easily access resources and information. This may be a role for the Wales Strategic Migration Partnership (WSMP), the Welsh Government, the Wales Sanctuary Seeker Support Service, and/or others.
If not already in progress, urgently ensure that support and information are available for local authorities which are now responsible for unaccompanied children for the first time, including how and when to access high-quality legal representation for the children in respect of their asylum applications and any age disputes.
Create a toolkit for identifying potential public law challenges to unlawful decisions by public bodies, and sources of advice, information and representation to pursue these. [The importance of legal literacy]
At the same time, there is a need for wider learning in response to any public law challenges which are received, particularly where these are conceded by the defendant public body. Rather than simply conceding the individual case, it is important that there are consequent changes in the way that policies are applied, to avoid repetition of the same errors. [Public law in Wales]
Consider joining Refugee Action’s Asylum Guides programme, either with the Welsh Government co-ordinating or commissioning an organisation to do so. This is a mentoring programme in which those with lived experience are trained and then matched to a person going through the system. This could be extended to non-asylum matters as well. [The importance of legal literacy]
Consider creating a guardianship scheme that includes all unaccompanied and separated children, similar to that currently in place for trafficked children in Wales and for all unaccompanied children in Scotland. [Specific groups: Unaccompanied children]
Recommendations for other bodies
As well as direct recommendations to these bodies, these should be seen as campaigning and lobbying points for the Welsh Government.
Reduce the delays in the asylum system, to ease the demand for legal aid providers’ work. This should include effective triaging to identify cases which can be quickly granted (in a non-detained setting), where applicants come from a country with a very high grant rate.
Reduce the costs of applications for initial leave to remain, further leave to remain and citizenship, to help reduce irregularity, destitution and debt for people resident in Wales, and reduce the need for legal casework on fee waivers, which is unsustainable given the very limited availability of legal advice in Wales.
Work with local authorities and the WSMP to understand the evolving geographies of advice need driven by the Widening Dispersal plans and National Transfer Scheme, and fund independent advice in parts of the country where it is not currently available. [Geographical accessibility of advice; Legal aid provision]
Improve public communications so that it is easier for users and legal advisers to contact the Home Office, track progress on cases and find out whether any further evidence or actions are needed, to reduce demand for work by legal professionals and MPs’ caseworkers, and to alleviate the need for schemes such as the Navigator pilot.
Legal Aid Agency, Ministry of Justice and Lord Chancellor
Implement a scheme for making additional payments to cover client care and communications during periods of delay by the Home Office, in recognition of the problem that all financial risk caused by these delays (caused by a government body) is placed on legal aid providers rather than other government bodies.
Reduce the unpaid administrative burdens on legal aid providers in order to maintain the current provider base, and increase legal aid funding at least in line with inflation.
Exercise the power in section 2 of the LASPO Act to make grants and other alternative arrangements to secure the availability of legal aid in areas of extreme advice shortage, such as mid and north Wales.