Everyone should be able to access justice: The legal aid crisis

Lisa Matthews, our Policy and Campaigns Manager, 20th February 2024

Everyone should be able to access justice, not just those who can afford it. But in my seventeen years working with people who have migrated to the UK, I have never known it to be so difficult to find legal aid (free) representation for people - even though now, lawyers are needed more than ever. Over that time, the government has changed the legal aid system  so that the amount of time that lawyers can spend on cases is very limited; concurrently, the government has made the asylum and immigration legal system far more complicated , through the introduction of countless new laws, immigration rules and policy changes,  and it  requires far more expertise to get the right outcome. With asylum cases in particular, the consequences for young people of not successfully navigating a complex and hostile system can be huge – a denial of rights, risk of detention and forced removal, being sent back to the very persecution and harm that people seeking asylum have fled.  

As our Chair, Garden Court barrister Grace Capel says: 

"Young people find the asylum system confusing, intimidating and often re-traumatising. They need a legal representative to help them navigate this system and obtain a grant of international protection so they can start to rebuild their lives. Representing children and young people in their asylum claims is complex and specialised work. It is vital that all young people can access high quality legal representation to help secure their long-term safety in the UK." 

In the past, there were points in an asylum case when it wasn’t easy to find someone a lawyer (in the just two weeks people have to submit an appeal against a negative Home Office decision for example; or when submitting new evidence to the Home Office and explaining how it meets the highly technical legal test it must pass to be considered). Now, however, we are finding it nigh on impossible to find young people legal representation even at the very start of the asylum process, or for crucial stages such as the asylum interview – stages where once a legal aid lawyer was almost guaranteed for those (most people) who do not have the means to pay a private solicitor.  

I talk about this extremely concerning development in this podcast episode about the work of Young Roots, why it’s needed and what’s changed in the twenty years since we were founded: 

There are a few factors – all avoidable - that have combined to create this crisis in legal aid. Legal aid fees have been frozen since 1996. That’s 28 years of underfunding when the costs to law firms of delivering legal representation to those who most need it have gone up and up. Then in 2012, the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act reduced the fee paid for civil legal matters (which includes asylum and immigration) by 10%. LASPO also removed the right to legal aid advice and representation from a large number of cases. These changes made providing legal aid simply unsustainable for many practitioners and by 2016, there was a 37% reduction in legal aid providers , according to the Law Society. Many areas of the country are now ‘advice deserts’, where there is no or almost no free legal advice available. 

Additionally, government mismanagement results in a backlog of asylum cases, with 175,000 waiting for months and years for a decision on their case. The so-called “legacy” backlog was largely cleared after years of inaction, only to be replaced by a new backlog of people whose cases have been stalled while the previous backlog was dealt with. This lack of progression means that legal representatives do not have capacity to take on new cases – they have taken on their maximum number and there is no movement of those cases allowing capacity to free up.   

These bureaucratic messes have very real, human consequences - as our Brent Casework Manager Daniel Smith describes: 

“Every firm tells us that they are not able to take on legal aid cases due to capacity and firms that also do private work tell us they are reducing the proportion of legal aid work they take due to the unsustainable Legal Aid fees available for this usually very specialist, labour-intensive, high-stakes work. This results in large numbers of young people with complex but potentially meritorious cases not able to explain their case to the Home Office (because they do not have legal representation) and are subsequently refused. They have two weeks to lodge an appeal, which most will be unable to do without the support of a lawyer, and those that do so will attend their hearing unrepresented. The most likely result of this scenario is that the young person gets refused again, before ever properly having the opportunity to present their case at its best and access the legal protection to which they are entitled. Ultimately, the deprivation of legal representation to asylum seekers means their cases are not properly presented to decision-makers. The decisions are therefore less informed and less reliable, and this depletion of quality serves no-one.” 

There is a clear answer to this crisis – increasing the funding for legal aid. There are additionally many policy changes available to address this crisis without increasing costs to government, as set out by public law and legal aid expert, Jo Wilding, here.