Like many other jurisdictions, the First-tier Tribunal (Immigration and Asylum Chamber) has been forced to change how it works as a result of the COVID-19 pandemic. First, HM Courts and Tribunals Service made expanded use of an online procedure which it was already piloting as part of ongoing digital reforms. A further adjustment has now been made, this time to legal aid, in the form of the Civil Legal Aid (Remuneration) (Amendment) (Coronavirus) Regulations 2020 (SI 2020 No. 515).

What do the coronavirus legal aid regulations do?

The regulations introduce two new standard fees for First-tier Tribunal asylum and immigration (non-asylum) appeals that use the online procedure. They have already been thoroughly analysed by the Immigration Law Practitioners’ Association. ILPA’s analysis, in summary, is that:

• the online procedure is designed to facilitate the review of appeals by the Home Office at an earlier stage, with a view to withdrawing unsustainable decisions — meaning that more cases may conclude without a hearing;
• under the new regulations, legally aided appeals that conclude without a hearing will have to reach a significantly higher threshold to reach the “escape” claim fee and be paid at hourly rates;
• the majority of appeals under the online procedure will exceed the new fixed fee and therefore risk falling into the gap between the fixed fee and the “escape” fee threshold, where all work goes unpaid;
• there is no fee specifically for the appeal skeleton argument, leaving only £60 for counsel to draft this document;
• the risk of financial loss will deter lawyers from taking on more complex cases;
• for appeals that do proceed to a hearing, the new regulations offer only an increase of £60 for the 4-12 hours additional work the Ministry of Justice has calculated cases under the online procedure require;
• hourly rates are the best temporary option, until a consultation is possible; and
• the new regulations will do “irreparable harm” to the legal aid sector.

We have been conducting general research with legal representatives on how they are experiencing tribunal procedures during the pandemic. As part of this research, we have been hearing practitioners’ concerns about the potential impact of the new regulations.

It is important to be clear that this data, covering interviews with 27 people so far, cannot be seen as representative. But it still provides an insight into the dynamics the new regulations give rise to.

What interviews with lawyers reveal about the new system

First, we heard concerns about lack of consultation. One representative was concerned about the speed at which the new Regulations had come into force:

When ILPA and various other bodies made the MOJ and HMCTS and the Home Office aware that there was a funding problem, there was going to be a consultation, we were at the early stages of that. And then the pandemic seems to have precipitated this mass or general application of the pilot to all cases and then obviously we got the new fee regs which had been rushed through Parliament.

Second, there was a repeated view that the new regulations undermine the commercial viability of legal aid providers in this context and make “surviving on legal aid… near impossible.” Our interviews were conducted before the new regulations came into force, but practitioners were already concerned. The core of the problem was stated to be: 

Generally these appeals take longer to prepare and yet you’re not getting paid more money for them. Unless they’re hourly rates cases, but if they’re fixed fee cases and they’re not going to become escape fee cases, which very few of them do. So you’re doing more work for the same money which is, you know, a bit of a worry. … The thing is, as a bare minimum on every single case it’s an extra 4 hours work and sometimes it will be lots lots more than that. So effectively, that sort of work you’re doing for free, so that’s the concern.

One solicitor told us of the impact on their practice:

I mean, we’re not [a large firm], but we’ve got three or four different departments in the law centre, so it’s trying to then explain this madness to the CEO and the director who don’t do immigration. And they’re like what? … From a business perspective grappling with what this could mean, what the main remuneration rates could mean. Because if we’re doing the work for if it would be paid, paid to counsel for less than minimum wage, if we do the work that’s us being paid less than minimum wage. It doesn’t solve doing it. I mean we do our own advocacy in house, we do our own skellies from time to time, so it’s not something we can’t do, but obviously it’s still work we’re barely getting paid for.

Some barristers have experienced this from a different perspective:

I did speak to another firm who told me that they’re doing it in-house. … What that firm said was the directions basically include a lot more work. The money that was available on the fixed fee regime was not enough. They are unable basically to kind of forgo some of that income because the actual work they have to do to instruct a barrister and pay a barrister as well, so what they’ve been doing in effect is complying in the sense that they’ve been putting together something like a skeleton argument, but they know pretty well it’s not really adequate, doesn’t say very much because they can’t afford to do to do it properly. And as a result that firm at any rate, who send me normally quite a lot of the FT tribunal work haven’t sent me any.

Third, there were anxieties about the potential consequences of undermining the commercial viability of legal aid providers. For instance, one representative was concerned that the quality of representation would decrease if the legal aid issues raised by the pilot were not sufficiently addressed.

I’m worried that the [Home Office] will not engage as well as we are with it, and we’re going to put all this extra work into it without any financial reward. Because at the end of the day, if I’m going to be spending 4-6 hours extra on this, and not being paid more, it’s just not financially viable. … What I’m afraid will happen is a lot of firms will start just doing standard skeleton arguments where they’re not really engaging. Because if you’re not getting paid for it and you’re doing all this hard work…

Another representative shared this concern:

You said the solicitor would do it, but let’s face it, in legal aid there are a lot of non-qualified caseworkers who do this work. So I mean obviously they will need to have their immigration and asylum accreditation, but you can’t tell me that a paralegal is going to do the same job as a barrister. So then it’s an access to justice [issue].

One representative suggested this will ultimately lead to cases that “should have won” losing:

It incentivises bad representation because it makes it profitable to do as least work as possible. I think in the long run, obviously the impact on the client is massive, but it also means that appeals aren’t getting finished because cases that should have won that weren’t properly represented and can be won. And we see a lot of them.

Others suggested firms will likely start cherry-picking viable cases. In reference to complex trafficking cases, one representative told us: “firms aren’t going to want to take on cases where they’re not going to get paid that much for doing all this work.”

Fourth, the perceived issues with the regulations have led some barristers to refuse legal aid work:

A number of chambers of decided to adopt a chambers wide policy that says, unless there are exceptional circumstances, we won’t accept instructions in this reformed procedure. And I that would certainly be my approach if I ever got asked to act on legal aid basis.

As another barrister put it, “my view is that we’re striking. … [i]t’s completely impossible for you to do essentially a full day’s work for 60 quid”. Some junior barristers reported feeling particularly exposed by this situation: “people down at the junior end may feel less secure”. 

This position has had knock-on effects on solicitors:  

So understandably they are now saying that they’re not willing to do that. And that’s putting the work back on representatives, it means we’re not getting that engagement with counsel…. The current situation we’re in, counsel can’t get paid for what they’re doing. I mean, that’s not fair and not sustainable for anybody. So that needs to be addressed by the LAA if this is going to be rolled out. And we sort of had assurances from the Tribunal, you know, they’re going to help us speak to the LAA. But until that issue been resolved, the situation we have at the moment is that a lot of counsel just wouldn’t take on these cases and they won’t take cases on until after the skeletons been done.

Some solicitors reported anxiety at the lack of involvement of counsel:

Some of us are thinking, maybe that means we should do the [appeal skeleton argument] ourselves, which I think is fine to an extent but often I think we don’t really have time to do justice to it. We are not so experienced as barristers in writing [ASAs] so in the best interest of the client, it would be better still to engage counsel, no matter if we think we can make a reasonable go at it.

Overall, the position communicated to us so far is of a process where two interventions, ostensibly in response to COVID-19, have rendered the legal aid system effectively dysfunctional in First-tier Tribunal immigration cases, with commercial viability being found only through alignment with perverse incentives that run counter to basic fairness.

This article was co-authored by Joe Tomlinson, Research Director at the Public Law Project.