For better or worse: the new Legal Aid Immigration contract
The new LAA immigration contract is due to start on 1st September 2018.
Old hands and new entrants are busy completing the verification process, which consists in providing the LAA with evidence that they meet the contractual requirements specified in the tendering process.
Many firms are ready, whilst other are still trying to recruit an accredited Level 2 Supervisor, an essential condition to be able to seal the deal with the Legal Aid Agency.
Despite the difficulties that having a legal aid immigration contact entails, including the constant audits, the amount of paperwork required and the small profit margins, there are many brave new bidders who have decided to enter the game.
Having an immigration contract allows firms to provide services in asylum and human rights claims. Since 2013, legal aid has been limited mainly to cases which engage the Refugee Convention or article 2 and 3 ECHR, some trafficking and domestic violence matters, cases to the Special Immigration Appeals Commission (SIAC), judicial reviews and bail.
Claims based on private and family life are excluded, even in the context of deportation, when the person is detained and therefore probably less able to pay for legal services. To get legal aid in excluded matters, one has to apply for exceptional funding, and explain why in their specific circumstances recourse to publicly funded representation is essential.
At some point it was virtually impossible to obtain exceptional funding but, following litigation, the interpretation of the rules has been slightly relaxed.
Firms who secured a contract will have access to untold riches: a whopping fixed fee of £413 to prepare an asylum application and £567 for an appeal to the First Tier Tribunal. Barristers will also make a fortune with the £302 paid to represent an asylum seeker at the FTT.
Only if a case is so complex that it would cost more than three times the fixed fee to prepare, remuneration will be paid at an hourly rate of around £50, but only if the file passes a Legal Aid Agency audit and it is assessed that it was “reasonable” for the provider to spend the claimed amount of time.
The fixed fee regime is not applicable to detained cases or cases involving unaccompanied children. These matters can be billed at an hourly rate, subject to a cap. Only caseworkers accredited at Level 2 under the Law Society scheme can deal with these cases, and an enhanced criminal record certificate is required to attend on minors.
A mainstream contract enables firms to apply for funding in judicial reviews and appeals to the higher courts.
In these circumstances, it is necessary to submit an application for each case, so that the Legal Aid Agency can assess whether the applicant satisfies the means and merits tests before granting a funding certificate.
Having a general immigration contract does not allow firms to deal with clients detained at Immigration Removal Centres, where an exclusive contract is required.
If an asylum seeker is detained at Harmondsworth, Colnbrook or Yarlswood, their case will be dealt with under the Detained Asylum Casework scheme (DAC), the new version of the abolished ‘fast track’. A new contract requirement is that firms can have an exclusive DAC contract only if they employ a Level 3 advanced caseworker, available to supervise. As there are not many Level 3s looking for a job, this is proving difficult for some firms to secure one in time.
Said advanced caseworker is not necessary to represent clients detained at other immigration removal centres, such as Brook House or Morton Hall, where no new asylum applications are processed.
But with such limited funds, how can a legal aid firm be profitable and at the same time provide a good quality service?
If you have been to one of my training courses, you probably already know my favourite metaphor, that running a legally-aided asylum application is like jumping on a (cheap) car with limited fuel.
You need to drive your client from point A of having no leave to point B, securing refugee status or some other positive outcome.
The legal aid funds are the limited fuel. To make it last you need to be very efficient, take the quickest route and waste no time detouring onto secondary roads for a scenic view. You must manage your time well, and manage your client in attendance to build a good rapport and obtain all the relevant information in support of their claim, but preventing them from delving into irrelevant issues.
Without being heartless, you need to know that hand-holding is out of legal aid scope and any time you wish to spend assisting your client in getting a GP, discussing accommodation or giving directions on how to reach their reporting centre is your own, unbillable time.
You need to manage your interpreter, who will probably be more inclined to make any appointment last longer, and you need to manage well-meaning third parties who phone you for an update or complain because you have not returned their call in the last couple of hours.
You also need to be a good administrator. Your files must contain detailed, accurate notes of time spent in attendance, preparation and on any other billable task.
Files must be tidy. Anyone leafing through your paperwork -especially if this person is an LAA auditor- should be able to understand quickly what the matter is, and easily follow each step you have taken to accompany your client on their journey.
Finally, you need to master volumes of LAA rules and cost regulations to avoid charging for what is considered an overhead or admin task, and risk failing an audit.
You will probably work long hours to accomplish all this. And at the end of the month you may still be called into a meeting with your supervisor because you are low on target.
But one day, when your car is running on fumes, you will receive a letter printed on a depressing beige piece of A4 paper, with the Home Office logo on it, which will finally confirm that your client has reached his destination.
And that will make it all worth it, because you will have managed to change someone’s life. And that’s priceless.
If you are interested in receiving training, including in-house training, on Legal Aid standards and procedures, contact email@example.com.