Legal aid and immigration and asylum cases under the new ‘Reform Procedure’

News

The statutory provisions (SI 2020 No 515) for the funding of ‘Appeal Skeleton Arguments’ in legal aid cases were laid before Parliament on 18 May 2020 and come into force on 8 June 2020.  These provisions bring into force the Civil Legal Aid (Remuneration) (Amendment) (Coronavirus) Regulations 2020.

The members of Goldsmith Chambers Immigration Team have considered the new provisions in detail.  In light of their effect, each member of the Team has decided to adopt the following policy: 

Other than in exceptional circumstances, we will not accept instructions under the Immigration and Asylum Chamber’s ‘Reform Procedure’ to prepare an ‘Appeal Skeleton Argument’ (‘ASA’), unless specific provision is made for that work to be adequately remunerated.  

Our team members have joined numerous others across the country in adopting this policy.

In practice, this means that we will not be able to assist with ASAs for legally aided cases under the ‘Reform Procedure’, which currently requires these to be drafted in advance of Case-Management Review Hearings.

This is not a decision our members have taken lightly.  However, it is clear that the provisions as amended are unworkable.  We share all of the concerns set out by the Immigration Law Practitioners Association (‘ILPA’) in their recent statement. We highlight the following, specific to counsel:

1. The practical effect of the provisions is that barristers instructed to draft an ASA will not be paid an adequate fee for this where a legal aid appeal is settled between the parties and does not proceed to a full, substantive hearing.  The new provisions allow for a balance of a mere £60 for the drafting of an ASA, as compared to the previous fixed fee level. This does not in any way reflect the level of work that would be carried out in an average case by counsel. Further, where an appeal settles without a hearing, in ‘Reform’ cases very likely as a result of the ASA, counsel and solicitors would have to negotiate and apportion the new ‘fixed fee’ between them, which is unworkable.

2. In cases where appeals to proceed to a substantive hearing, counsel will not be remunerated for having had to prepare the appeal twice: once to draft the ASA, and again (after passage of time) to prepare the appeal for the substantive hearing, which could include the re-drafting of the ASA.

3.The new provisions have increased the ‘escape fee’ threshold.  In cases which are complex and which require a lot of case-work and preparation from both counsel and solicitors, the changes will leave solicitors and counsel without a fee reflective of the work done. There is no reasonable basis or justification for this.