Giving immigration lawyers space to breathe

The UK Border Agency has had more than its share of bad headlines in recent months – with stories about inefficiency and a backlog of cases going back up to ten years. What has received less media attention, however, than reports of files found abandoned in damp basements, is that UKBA earlier had to abandon a policy introduced in 2009 towards asylum seekers facing destitution.

The change followed a successful judicial review, and means that refused asylum seekers awaiting a fresh decision, must have their applications for financial support (under section 4 of the Immigration & Asylum Act 1999) assessed without delay. The judge in the case commented: “There are human beings behind each application and some may be extremely vulnerable… the vulnerability being exacerbated by being destitute and homeless at the time.”

There is nothing new about the UKBA facing legal challenges – according to government figures, applications for judicial review in immigration cases went up from 2,221 in 2004 to 8,649 in 2011 – but what made this one different was the role played by funding from the Strategic Legal Fund. The SLF, initially set up as one-year a pilot but now extended, awards funds for strategic legal work to improve the rights of young, vulnerable migrants. In the recent UKBA case, SLF funding enabled the Migrants’ Law Project (acting on behalf of the charity Refugee Action) to intervene in the review, and provide evidence that large numbers of asylum seekers were being forced into destitution by blanket delays in considering them for financial support until after their new claim had been assessed.

This landmark case is being seen as proof of the value of SLF’s ‘pump-priming’ approach – providing small, one-off grants for pre-litigation research or interventions in existing cases (as in the UKBA challenge). In order to make its money go as far as possible, SLF does not fund actual litigation, and grant applicants are expected to do some work pro bono. Awards are decided by members of a 16-strong panel of leading immigration and asylum lawyers (who also give their time pro bono), led by Manjit Gill QC.

Time and space

SLF’s aim is to allow practitioners to scratch an itch. Lawyers in complex and demanding areas like social welfare law will often see endless clients facing the same kinds of problems, sometimes caused by exactly the same defendants. However, the pressure of case work, means they may never get the chance to investigate that niggling suspicion that this is an issue which would be better tackled strategically, by challenging the law or procedure causing the problem in the first place. An SLF grant is intended to buy lawyers the time and space to conduct pre-litigation research and, if possible, identify a suitable test case.

The fund has come as a welcome boost to a fairly beleaguered sector, according to one panel member: “I’ve had enthused lawyers contacting me. They can’t believe it exists, saying, ‘Do you think this is something we can take up?’ It’s not just the funding to do the work, but the space to do it in.”

Sue Lukes, SLF director, says it can help re-energise lawyers in other ways, too. Asylum work tends to have quite a high attrition rate, with those at the coalface often at risk of burnout. Lukes says: “It’s an opportunity for people on the front line who are having a hard time of it to step back and do something that for once is not about interviewing desperate people and urgent deadlines, but about getting their teeth into researching an important issue and make changes at a different level that will affect a lot more people.”

SLF accepts applications from both private practice and not-for-profit organisations, but so far most have come from the latter. Just three out of the 23 grants have gone to firms, with the vast majority going to law centres, campaign groups, charities and other not-for-profit organisations. One reason for the discrepancy may be that there is still cultural resistance within firms to the notion of applying for grant funding, whereas grant applications are all in a day’s work for most not-for-profits. Lukes adds that lawyers in private practice may also be less likely to take a strategic view of their work, seeing their job as obtaining justice for each individual client, rather than trying to bring about broader change. She suggests that one consequence of initiatives like SLF is that firms may become ‘more NGO-ised’, and change the way they approach litigation. An evaluation of the project’s first 12 months by an external consultancy says some practitioners have already changed the way they think and act.

Partnering up

Interestingly, a high number of grants have gone to joint bids, made by sometimes quite different organisations, which have decided to pool resources to tackle issues of mutual concern. So far, these include: Coventry Law Centre and Warwick University’s Centre for Human Rights in Practice; Asylum Support Appeals Project, and Maternity Action, the charity which campaigns for the rights of pregnant women; Elder Rahimi Solicitors, and the Howard League for Penal Reform; and the law firm Deighton Pierce Glynn and the Children’s Society.

Zubier Yazdani, the solicitor at Deighton Pierce Glynn leading the project, says linking up allows both organisations to play to their strengths. “It is a good partnership. As a solicitors practice, we are not well placed to do research as such, so we asked the Children’s Society, who have far more expertise in conducting research and producing reports. We have got the expertise on the legal issues.”

The DPG project has involved investigating an as yet unnamed London borough’s treatment of migrant teenagers leaving care, compared with non-migrant care-leavers. It came about because he had a spate of migrant care-leavers, who all “seemed to be getting a raw deal in terms of the services they were given”.

If evidence of systematic discrimination is uncovered, the firm will seek to develop a test case, and Yazdani is optimistic that this will happen.

The evaluation of SLF’s work suggests that there may also be scope for more formalised cooperation between disparate organisations on a broader scale, to ?ensure that evidence and insights gleaned in funded projects are shared between ?all its stakeholders, and even for a ?shared database.

Three-pronged approach

Despite SLF’s obvious success and the degree of support it has attracted from the profession, the problem is whether its model of pump-priming, or ‘bridging funding’, is sustainable in the longer term. At the moment, it relies not just on a substantial pro bono contribution from all applicants, but also on legal aid to step in and fund cases which do get as far as ?being litigated.

As is well known, when the Legal Aid, Sentencing & Punishment of Offenders act comes into force in just a few short weeks (April 2013), legal aid will be axed for most social welfare law, including immigration work. (Although, SLF is in fact funding Islington Law Centre to research the prospects of developing a litigation strategy to challenge aspects of LASPO.)

SLF shows how a three-pronged approach to funding can work, but – given that two-legged stools are rarely as stable as those with three supports – when one of those limbs is removed post-LASPO, what remains is likely to be de-stabilised, at least for a while. SLF is already considering whether it should change its policy of not funding litigation, although this will have obvious consequences for its resources.

Lukes is far from despairing. She points out that the kind of work SLF funds may ?be less badly affected than many other areas (although legal aid is axed for immigration, it remains largely unchanged for asylum work); and other types of case may continue to qualify, under the exceptional funding provisions, or be higher court work.

She adds, however, she is far from complacent about what the knock on ?effects of the legal aid changes might be, ?“If you take one animal out of an eco-system, everything changes. No one knows what will happen after April.”

For more information visit ?www.strategiclegalfund.org.uk