Successive lord chancellors have managed a steady decline in provision for civil legal aid. In immigration and asylum, the sector is now at the point of collapse: in the past decade, 63 per cent of providers have left the market1In 2013–14, there were 418 providers of immigration and asylum legal aid (Legal aid statistics in England and Wales 2013–2014, MoJ, 24 June 2014). In 2022–23, there were 153 providers of immigration and asylum legal aid (Legal aid statistics England and Wales bulletin Jan to Mar 2023, MoJ, 17 July 2023). This represents a reduction of 63 per cent. and two-thirds of the population do not have access to an immigration and asylum provider in their local authority area.2‘Immigration and asylum – legal aid deserts’, The Law Society, 7 June 2022. As a result, many refugees, migrants and asylum-seekers who are fleeing persecution cannot access legal support. Our immigration system is unfairly denying them the freedom to build new lives.

The legal aid system enables us to enforce our rights, but its current design and operation has driven the market to near collapse. In immigration and asylum, the drivers can be summarised as follows:

The first driver has been the reduced scope of immigration and asylum legal aid. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) came into force on 1 April 2013 and underpins the legal aid system. After its adoption, legal aid was not available for a legal problem unless it was expressly included in the Act,3LASPO s9 and Sch 1 Part 1 – reversing the previous position. or caught by the safeguard of exceptional case funding (ECF). In immigration and asylum, the cuts to the list of included issues were drastic. This has meant that applications for ECF have been made most often for immigration matters.4Sixty-four per cent of ECF applications were for immigration matters: Legal aid statistics England and Wales bulletin Jan to Mar 2023, note 1 above.

ECF can be used to grant somebody legal aid for an out-of-scope matter where a failure to do so would risk a breach of their fundamental rights. Unfortunately, as a safeguard, ECF is flawed. Applying for ECF is administratively burdensome and undertaken at risk of not being remunerated. This deters overstretched providers from making applications5See further Joe Tomlinson and Emma Marshall, Improving exceptional case funding: providers’ perspectives, PLP, January 2020. and, accordingly, means that individuals can struggle to access immigration services even where their fundamental rights are at risk.

The second driver of near market collapse has been the complexity of service delivery under the legal aid system. To understand the system in which they operate, immigration lawyers must navigate and interpret complex and frequently changing information from multiple sources. They are not paid for the time-consuming work of meeting compliance requirements and complex files can be scrutinised repeatedly, significantly delaying payment. Accreditation requirements increase the cost of staff training and retention. To demonstrate how the complexity of service delivery threatens providers’ ability to maintain a sustainable business model, PLP has produced Adrift: an explainer for navigating the immigration legal aid framework (Daniel Rourke et al, September 2023).

The complexity of delivering immigration and asylum services has been compounded by the rapid pace of changes in legislation and policy. The (poorly drafted)6The Law Commission describes the comprehensive criticism received by the rules’ drafting in Simplification of the Immigration Rules: report, Law Com No 388, HC 14, January 2020, para 1.1, page 1. Immigration Rules, for example, have quadrupled in length over the past decade. Such changes can raise training and development needs, regardless of whether changes are ever actually implemented. This and administrative requirements act in conjunction, so that providers spend time, unremunerated, on administration and training that could otherwise be spent helping those in need.

The third driver, which is perhaps the most significant, is that immigration and asylum legal aid work is not sustained by legal aid fees. All civil legal aid fees were cut by 10 per cent in 2011. Hourly rates have been otherwise frozen since 1996, even though £1 now is only worth £0.56 then. Most work is paid by a fixed fee, which is often even lower.7Duncan Lewis, for example, estimates that it would have been paid £342,517 more in 2019/20 had fixed-fee work been paid at the hourly rate: see Daniel Rourke, Ed Cripwell, Joseph Summers and Jo Hynes, Access to immigration legal aid in 2023: an ocean of unmet need, PLP, September 2023. Overall, legal aid fees do not meet the cost of providing legal aid services, so providers must find other ways to fund them. Often, firms rely on dedicated staff to undertake additional, unpaid work. This means that providers struggle to recruit and retain staff; they lack capacity to meet demand for their services; and they are unable to increase that capacity.

The Ministry of Justice (MoJ) has recently announced that it will increase fees for immigration and asylum work by 15 per cent, but only for work related to the Illegal Migration Act 2023 (IMA). While any increase is welcome, the increased rate is insufficient to cover the cost of delivery, let alone subsidise other work. So, providers who are already facing closure might be forced to make a difficult choice: prioritise higher-paid IMA work to the detriment of the pre-IMA cohort, or go bust and help no one at all.

PLP has gathered evidence to demonstrate that, effectively, the three drivers have acted such that legal aid is not available for those seeking support with immigration and asylum issues. We have worked with Haringey Migrant Support Centre to make the detail of the evidence public in our joint report, Access to immigration legal aid in 2023: an ocean of unmet need (September 2023).

What it shows is that in 2023, when somebody asks for help with immigration or asylum and is referred for legal aid, more often than not those supporting them cannot find anyone to take that referral up. We found that, on average, only one in 16 of such referrals is successful. While our evidence shows that these problems are not confined to any one part of the country, the picture is clearest for three groups: those seeking to access immigration or asylum services in the North West or the South West,8The geographical areas of most acute unmet need were identified by Dr Jo Wilding in No access to justice: how legal advice deserts fail refugees, migrants and our communities, Refugee Action, May 2022. and those seeking to access immigration services through ECF.

In south-west England, at least six providers have closed in the past two years, leaving only four to five providers covering an area where there are 4,603 asylum-seekers. We now estimate that there are fewer than 300 matter starts available annually in the South West. The picture is similar in the North West: in 2022, Dr Jo Wilding estimated that there was demand for providers to open a further 6,470 matter starts but no provider capacity to actually do so.9Ibid. Accordingly, the North West appears to hold the highest level of unmet need for any procurement area, despite it having the second-highest amount of legal aid provision.

Under LASPO s1, the lord chancellor is under a duty to ‘secure that legal aid is made available’. To do so, he is empowered by s2 to make ‘such arrangements’ as he considers appropriate for carrying out his functions (including arrangements such as grants or loans to providers). As of January 2020, the lord chancellor had never exercised his powers to provide grants or loans to organisations to provide services or facilitate access;10Freedom of Information Act request by Devon and Cornwall Refugee Support. nor are we aware of these powers being used since then.

The lord chancellor is required to discharge these duties in a manner which is consistent with the principle established in R (UNISON) v Lord Chancellor [2017] UKSC 51: impediments to the constitutional right of access to justice will be unlawful ‘if there is a real risk that persons will effectively be prevented from having access to justice’ (para 87) (unless authorised to do so by express words in statute).

Accordingly, the lord chancellor will act unlawfully if he fails to discharge his duty under LASPO in such a way that there is a real risk that individuals will not have effective access to justice. PLP submits that:

PLP seeks evidence of the problems being experienced by those who cannot access legal aid for immigration and asylum issues. We are interested in any examples where someone was eligible for legal aid for immigration or asylum but was unable to obtain it and suffered problems as a result. More information and a template can be found on our website. Completed templates or other information can be sent to: enquiries@publiclawproject.org.uk.