Refused asylum seekers being denied representation in legal aid ‘Armageddon’

At first glance, the UK government’s recent attempts to ‘clear the backlog’ of legacy asylum claims (outstanding for more than 18 months) appears to be relatively successful. While not completely cleared, the legacy backlog is down from 33,000 to 4,500 cases, and overall pending asylum cases are down to below 100,000. This has apparently been achieved by recruiting more caseworkers and urging them to process cases faster.

However, faster processing risks poorer decisions and more refused asylum seekers lodging appeals – essentially kicking the can down the road. There is some evidence that this is already happening: more Home Office rejection decisions has led to a 15% increase in appeals from March 2022 to March 2023 (more recent figures are yet to be published).

This rise in asylum appeals has occurred in the context of a catastrophic drop in availability of legal aid support. Over the past decade, successive cuts in government funding for legal aid has resulted in a 90% fall in people being able to access legal aid as law centres across the country closed down, while most firms have closed their legal aid departments.

Over the same period the number of people having to go to court without representation has trebled.

No communication

Whilst conducting research about recent migrants to the UK, I have spoken to several asylum seekers who had been waiting for years with no communication from the Home Office. During this time, those who at one point had legal representation to help them submit the original application have subsequently lost that support, as their former solicitors stopped providing legal aid due to financial constraints.

In the past 6 months, however, many asylum seekers have been suddenly summoned to their substantive Home Office interview. Without any legal support or adequate preparation, these interviews tend to be very stressful, hostile and intimidating – in the words of one research participant, “it’s like they don’t want to believe or understand you”.

Most people whose asylum claims are rejected want to submit an appeal, and often with very legitimate disputes regarding the Home Office’s rationale for refusal. However, submitting and substantiating an appeal is a complex, technical process which requires a high level of legal knowledge (not to mention English language proficiency). Without the assistance of a legal representative, asylum appeal cases are much less likely to be successful.

Legal aid 'Armageddon'

Two months ago I attempted to help a refused asylum find a legal aid lawyer to support his appeal. We spent hours calling legal firms based across the West Midlands. Only about 30 solicitors offered legal aid for immigration cases; in Coventry, a city with a 350,000 population and hosting over 2,000 asylum seekers, there is not a single firm providing legal aid for immigration.

Of the 30 legal aid providers we reached (based mainly in Birmingham), only one had the capacity to consider taking on my research participant’s appeal case. Firms who operated waiting lists told me they had over 200 asylum seekers waiting to be seen; one solicitor described this time as legal aid ‘Armageddon’, the busiest he had seen it in his 16 years of working in law.

Many firms suggested I call back in 2 months where they might have more capacity, but once a Home Office refusal decision has been made then the asylum seeker only has 14 days in which to submit an appeal; after that, they are liable to be deported. After years of waiting with no idea of when their cases will be processed, refused asylum seekers suddenly face the incredible stress of trying to comprehend and deal with the courts bureaucracy and processes.

Both the interminable periods of waiting and the panic of appealing without legal aid representation have profoundly deleterious effects on people’s mental health.

Denied their right to legal representation

The net result of ‘clear the backlog’ rushed asylum decision-making, combined with the difficulty of accessing legal aid, means that thousands of asylum seekers are in practice being denied their right to legal representation – for both their substantive interviews with the Home Office and subsequent appeals.

Given the hostility of recent Conservative Home Secretaries towards immigration in general and asylum seekers in particular, this latest development could be seen as a cynical attempt by the Home Office to reject as many asylum seekers as possible in a short time period, in order that the majority are unable to successfully appeal decisions without legal representation.

The only humane solution to this situation is to urgently reinstate legal aid funding for immigration cases, as was urged in a 2021 independent review. So far, the government’s paltry response to calls for increased funding has been deemed ‘unlawful’. 

By Dr Seb Rumbsy
Leverhulme Early Career Fellow in the School of Social Policy