New legal aid immigration fees ‘will not undo years of underfunding’

The Chartered Institute of Legal Executives (CILEX) has told the government its proposed increases in legal aid for immigration and asylum work are “welcome” but will not fix longstanding issues in the system caused by years of underfunding,

A Ministry of Justice (MoJ) consultation has proposed an increase to fixed fees, but CILEX members – around 500 of whom work in immigration law – have argued they still will not cover the work they must do when preparing cases or appeals.

CILEX said the consultation recognises, for example, that the system of online appeals to the First-tier Tribunal – introduced in 2019 – requires significantly more upfront work by lawyers, but this is not adequately reflected by the new fee.

Many respondents to an earlier MoJ call for evidence said fixed fees encouraged representatives to work ‘within the fee’, rather than do all that was required to prepare the case, and raised concerns about the financial viability of firms, the sustainability of the market and access to justice.

One CILEX member commented: “I've seen far too many cases poorly prepared because they are trying to bash through a complex case as quickly as possibly because the money isn't worth it. This means that appellants are being let down by negligent representatives.”

CILEX said it was “encouraging” that the MoJ acknowledged the need to increase fees but, in doing so, it must take into account the years since the last rise, as well as current economic challenges.

Members said the guideline hourly rates (GHR) used in the civil courts should be the starting point to calculate legal aid fees. “Members felt that rates should reflect work carried out and an average of GHR would help to do that. CILEX is inclined to agree with such a suggestion, providing that GHRs are regularly kept under monitoring and adjusted to reflect the current economic climate.”

In the same way the MoJ has recognised unnecessary barriers put in front of CILEX’s criminal practitioners, the response calls for it to examine the impact of accreditation schemes within immigration law.

The response said: “Whilst these schemes differ in their final delivery, the principle of alternative routes or an analysis of burden of cost should be undertaken by government to fully understand if such a scheme is appropriately balanced.

“CILEX believes that accreditation schemes need to reflect the equivalence of different forms of legal training. This inevitably has the potential impact of driving healthy market incentives by offering multiple recognised and tailored schemes. It will also further help prevent monopolisation of products available, setting an equal industry standard between legal service providers.”

The response also highlights the need to monitor the impact of the reforms to ensure they deliver for clients, as well as the lawyers they need to support them.

CILEX president, Matthew Huggett, said: “We commend the MoJ’s overall ambition to ensure legal aid providers are paid an appropriate level of remuneration. But the reality is that it has to go further and faster to achieve this.

“Immigration and asylum clients are often among the most vulnerable lawyers deal with and possibly the least politically popular. But ministers need to recognise what years of underfunding have done to the system and put justice ahead of headlines to ensure these people have equality of arms when facing the state.”