At least 51% of asylum applicants in England and Wales – 37,450 people – are now unable to find a legal aid lawyer.

That is the deficit between the number of new legal aid cases opened (‘matters’) and the number of new applications for asylum. This analysis comes from Freedom of Information data on immigration legal aid matter starts for the contract year 1 September 2022 to 31 August 2023. 

Calculation

The total number of matter starts opened in England and Wales in the contract year was 35,646.

Scotland and Northern Ireland have separate legal aid systems, so are not included in these calculations.

There were 78,768 asylum applications by main applicants in the whole UK in the year to June 2023. The years do not align precisely between the data for legal aid provision and the data for asylum applications, but they are close enough to give a reasonable estimate.

We then need to know what proportion of these were in England. The asylum support statistics tell us where people are accommodated, but they do not tell us how many are main applicants and how many are dependents.

Based on the asylum support statistics, 92.8% are accommodated in England and Wales.

That means approximately 73,097 new asylum claims likely to be in England and Wales. Subtracting the provision figure of 35,646 new cases leaves a deficit of at least 37,450 people, or 51% of new applicants in the year.

A widening deficit

This compares with deficits of at least 25,000 people or around 43% in 2021-22 and 6,000 people in 2020-21.

The real deficit will be larger than this because not every immigration legal aid matter is an asylum application. Some will be settlement applications at the end of a period of refugee leave, or one of the few other issues still in scope of legal aid.

There is in fact a small increase on the number of new legal aid cases opened in 2021-22. This is likely to be mainly because the Legal Aid Agency changed the way cases are classified mid-year. Until April 2023, one ‘matter’ could encompass two stages of the same case – both the application and appeal (though one client might still have more than one ‘matter’).

Since April 2023, each stage of a case is a new matter (Standard Civil Contract Immigration Category Specific Rules, at 8.25). This means that if the Home Office refuses an asylum application, the appeal is an entirely new legal aid case. That makes it difficult to compare exactly across the years but effectively means the same number of clients will look like a greater number of ‘matter starts’ or new cases.

Regional distribution of provision

There were 245 provider offices over the course of the year, of 161 different organisations. During the year, 34 offices closed or stopped doing legal aid work.

38 offices did not open any new cases in the year, while another 25 opened ten or fewer new cases. At the other end of the scale, the largest 16 offices (6.5% of the provider base) opened a combined total of 11,808 new matters. That’s one third (33.1%) of the total for the entire provider base in England and Wales.

As might be expected, this produces a very uneven regional distribution, as shown in the table below. The Legal Aid Agency divides England and Wales into ‘procurement areas’ and sub-divides those into ‘access points’. Users are normally expected to use a provider within the access point in which they live, unless they have been unable to find one with capacity within the access point, or justified under the Equality Act. Providers also need authorisation to take more than half of their matter starts remotely (Immigration Category Specific Rules paragraph 3.15).

All parts of the country are covered by a procurement area, but not all are covered by an access point. This is arrangement is left over from when asylum applicants were dispersed only to specific parts of the country.

There is no access point, for example, covering the Bibby Stockholm Barge in Portsmouth. The closest provider is a newly opened office in Bournemouth, of an existing provider, but even that is more than an hour and a half journey by car. The next nearest are in Portsmouth and Southampton, two to two and a half hours’ drive from the barge. Though obviously the people held there have neither cars nor the money for public transport.

The figures mask the fact that some fairly large provider offices have closed. In both Cardiff and Bristol, for example, the largest single office has handed back its legal aid contract, while another has closed some of its offices in those areas.

They also mask the fact that some firms simply refuse to undertake appeals work since the new fixed fee was introduced in 2022. Some formally announced this while others did not, but the consequence is that numerous people lose their representation if they receive a Home Office refusal – not on merits grounds but because the work is financially unsustainable.

What about the new providers?

The Legal Aid Agency allowed new providers to bid for contracts to start legal aid work in September 2023, before the main retendering round for September 2024. This resulted in an increase from 211 offices in August 2023, to 252 offices in October. This is a net gain of 41 offices and 35 new organisations.

Some of these are well known in the field and welcome additions to the legal aid sector, like Refugee and Migrant Forum of Essex and London (RAMFEL) and Project for the Registration of Children as British Citizens. Many, though, would not expect to take on high volumes of cases. It is unclear how many of the less familiar organisations have already recruited an immigration lawyer or team.

Conclusion

The 15% uplift for work under the Illegal Migration Bill is unlikely to be enough to stop the trend of providers leaving the market. There will likely be some increase in the number of new cases/ matters reported, given the revised method of counting them.

But short of a change to legal aid funding and structuring, and an improvement in Home Office decision making, the collapse in provision seems likely to continue.

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