Legal Update: Crisis in asylum law

Following huge cuts to civil legal aid over a decade ago, children going through care proceedings, SEND education issues or asylum claims remain entitled to legal aid. But there are critical problems with the legal aid system that are worsening access to justice issues for children and families. Children’s services departments are increasingly shouldering the burden of the issues caused by poor provision, delay and the rapidly decreasing supply of solicitors for children.

Nowhere is this more evident than in immigration and asylum law. Although asylum and trafficking have always been in scope for legal aid, and all other immigration and nationality matters specifically relating to separated children were brought back into scope in October 2019, social work professionals are increasingly on the front line of a crisis of provision and are helpless to act in the face of the damage caused to children and young people in their care.

Reform overdue

The civil legal aid system has been subject to various reviews since the Legal Aid, Sentencing and Punishment of Offenders Act 2012 brought large-scale changes to the system in 2013. This has included a review by the National Audit Office in summer 2023 which found evidence of a significant cost-shift to local authorities, especially in immigration-related matters.

The current Review of Civil Legal Aid, undertaken by the Ministry of Justice, accepted evidence in January and February 2024. It is scheduled to publish its findings before the end of 2024, and has seen incredible contributions from the legal sector, with organisations including Coram Children’s Legal Centre (CCLC) sharing expertise and key recommendations for much needed reform.

Unmet need

The centre provides outreach immigration advice to children and young people across London, including in partnership with many community organisations, schools and several London boroughs. As need has increased and legal providers have dwindled, CCLC’s outreach legal advice services have become even more critical in meeting what the Public Law Project calls “an ocean of unmet need”.

The children and young people we work with often arrive in the UK unaccompanied; they are without family support systems, with limited or no English, and the traumatic circumstances that brought them to the UK create profound confusion and fear. These are compounded by an immigration and asylum process that is impossible to navigate, and a hostile system that can result in serious ramifications for a young person without help.

Increasing numbers of young people at advice clinics are unrepresented, and often waiting for legal assistance for many months or even years. Children and young people are living in an environment of uncertainty and desperation. Dr Jo Wilding identified in her publication No Access to Justice that 51 per cent of asylum applicants were unable to access representation. Capacity in the legal aid sector is at breaking point, with referrals seemingly impossible.

We are witnessing legal aid providers withdrawing from representation at pivotal moments, leaving young people vulnerable. Even young people with legal representation often present with worry; firms are pressured to take large caseloads to financially survive, which can result in a lack of attention and time on young people’s cases, and at worst, negligent practice.

Chaos and limbo

Why is legal aid provision getting so much worse? Legal aid rates have not been raised since 1996, and inflation has made the business of delivering legal aid unviable for many. In addition, the immigration and asylum policy environment has also changed rapidly. The pace and chaos of current policy changes create a difficult environment to advise in. This is particularly hard when advice should be accessible and easy to understand for children and young people.

CCLC’s partnerships with local authorities in London have highlighted the deeper impact on children’s services in supporting the growing number of unrepresented children and young people in care. Delay in finding representation causes delay in resolving children’s legal cases. Children are kept in limbo, which takes a toll on their mental health. Local authorities must keep financially supporting care leavers who are waiting for status because, without leave to remain, those young people cannot work or claim benefits to support themselves. To fulfil their statutory obligations to looked-after children, local authorities are sometimes having to pay privately for representation, which should be covered by legal aid.

The future

Ultimately, until central government agrees to pay legal aid providers a fair rate for their work, the system will continue to be broken and children and young people will continue to pay the price.

As CCLC states in our response to the legal aid review, children need a legal aid system that both responds to the scale of demand and is sustainable long-term. The legal aid crisis should prompt a rethink of why legal aid matters, and strengthened efforts to create a system for access to justice which is humane, compassionate and dignified.

Nikki Clarke is an immigration adviser with Coram Children’s Legal Centre www.childrenslegalcentre.com

Further reading: No Access to Justice, Refugee Action, June 2022 www.refugee-action.org.uk