Our anonymous contributor considers the non-availability of legal aid in the context of a recent Afghan case, and what the future holds for legally aided immigration advice.

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Sara was in Kabul when the Taliban entered the city. Her husband, Hassan, a British national, was in the UK, working towards the Minimum Income Requirement for her spouse visa. He had not worked for long enough in order to make an application by the time the Taliban arrived.

Sara was therefore alone, looking after Yacoob, their severely disabled son, born with a congenital heart defect and constantly in and out of hospital. She was 6 months pregnant with their second child. The application for Yacoob’s British passport had been stuck with HMPO for several months. 

Hassan was an old client, and I liaised with the Foreign Office on the family’s behalf as Operation Pitting got underway. After several days of wrangling and mining contacts, we managed to get Sara and Yacoob onto an evacuation list. But given their circumstances, and the risks and chaos of attending the airport, Sara was understandably reluctant to attempt the journey. 

My advice was that if they didn’t get on a plane then it would be a year before we could get to them to the UK. Hassan had been told by doctors in Pakistan that Yacoob’s condition needed urgent treatment which was beyond their capability. He could not wait. 

Hassan took the next flight to Islamabad, hoping to escort them across the city himself. He made his way across the border, through the Taliban checkpoints, and to Kabul. 

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Hassan’s return to Afghanistan was significant.

A decade prior he sat in my office, an Unaccompanied Asylum Seeking Child, as the Home Office would say. He explained through an interpreter why he would be in danger if he had to go back. His claim was refused and he was given Discretionary Leave by the Home Office on account of his age.

I represented him in a subsequent appeal. He won and was eventually granted protection status. By this point he was cracking jokes in estuary English, playing county-level cricket, and complaining about the weather. 

Hassan later obtained indefinite leave to remain and British citizenship, and met and married Sara, an Afghan national, who had spent most of her life living in Pakistan.

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Hassan arrived in Afghanistan on the same day the last British plane departed from Kabul airport. 

I advised Hassan on the merits of the various conceivable options for Sara and Yacoob as best I could at the time: the government’s slow and shifty commitment to an Afghan resettlement scheme; a spouse visa application meeting rules on exceptionality; a visit visa application; a discretionary outside the rules entry clearance application; a Part 11 refugee reunion application; and the (then suspended) process for fee waivers in entry clearance applications. 

Hassan had borrowed heavily to get to Afghanistan, and would need to borrow more to afford the £3500+ required for a spouse visa application. He had been given a compassionate leave of absence from work which would not last forever. 

But he was faced with a winter in Kabul under the Taliban, caring for a pregnant wife and a son with a hole in his heart. As the Home Office eventually announced that its Afghan “scheme” could not actually receive applications, it became clear that the spouse visa would be the least bad option. 

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HMPO finally issued Yacoob’s passport in the autumn, and the family took the difficult decision to separate mother and child, and bringing Yacoob to the UK for treatment. We made preparations for the spouse visa application, whilst Hassan got a crash-course in single parenting. 

Doctors assessed Yacoob when he arrived. There was nothing they could do but offer palliative care, they said. He would not survive into adulthood. 

Hassan relayed this news to Sama over the phone, whilst she waited in Afghanistan. 

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Advising Hassan and his family during this time was a complex exercise.

For instance, how could Sara make an entry clearance application from Afghanistan, when the location to provide biometrics – usually required in any application – had been closed? If expected to apply and give biometrics in Pakistan, she would usually be required to have permission to stay in that country, and which she did not. Could we use the suspended fee waiver process in these exceptional circumstances? 

The Home Office provided little, if any, formal guidance on any of these and other key questions. In fact, on the biometrics location question, it emerged a few months back during litigation that the Home Office would have been fine if people essentially lied on the form as a “workaround”. This obviously would have been helpful to have known at the time. 

In these cases, advisors must balance questions of law with issues of practicality. One is looking at the rules, but with an eye also on government statements, ILPA meeting minutes, experiences of other applicants and other lawyers (the ILPA Afghan Google Group is a treasured resource), and good old fashioned instinct. 

Immigration advice is given in a legal ecosystem which changes at ferocious speed, with advisors needing to be across detail in multiple areas, and where the law can change when you refresh your browser. 

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Would legal aid be available to assist with any of this advice? Ordinarily, no. Advice to individuals making spouse visa applications is not covered. 

Could a case be made for Exceptional Case Funding? Potentially. But even assuming that a person with a salary meeting the Minimum Income Requirement was financially eligible, the fixed fee is £234. 

There is scope for a case to “escape” the fixed fee threshold by reaching a certain number of hours, although subject to reductions by the Legal Aid Agency if work has not been properly evidenced, or was not, in its view, necessary for the progression of the matter. 

So the absolute best case would be for the time in the matter to be remunerated at around £50 per hour.

Are there many lawyers prepared to work at that rate, and with that risk? No, there are not. 

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Legal advice of the type provided to Hassan and his family should be available under the legal aid scheme. 

It should not be available just in the technical sense: if I could bill the Legal Aid Agency for the time spent in a case in the same way that I bill commercial clients (subject to reasonable caps, of course, extendable on application), I would take that, even at £50 per hour. 

As any legal aid lawyer will tell you, though, it is the process of dealing with the Legal Aid Agency which is so draining, and the amount of administrative work required to even get £50 per hour (and which will, in any event, be the absolute maximum you will receive for work done in any matter) is significant. 

But is there any appetite to meaningfully reform the legal aid system? No, not at any level of government. 

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In order to even tender for a legal aid contract, you need to have office premises staffed throughout the week. I would need to obtain an SQM quality assurance standard, which I would also need to pay for.  

My clients paid me just shy of £180,000 in the last financial year. They were not put off by the fact that I offer advice now almost entirely remotely, or by the absence of a Law Society quality assurance mark. 

I trained and practised as a legal aid lawyer before setting up my non-legal aid private practice. I would hear the older heads talk about early legal aid pioneers, like Winstanley Burgess, and other providers, like Refugee Legal Centre, where so many giants of the field cut their teeth. 

It feels as though the places at which lawyers can do this are disappearing. And if the amounts which can be paid are just about enough for younger caseworkers (even with graduate and postgraduate loans to pay off), the salaries are simply not enough for anyone wishing to start a family, and/or get on the housing ladder later in their lives. 

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On 13 June 2022 the Ministry of Justice announced a consultation on legal aid in immigration cases. 

As ILPA pointed out in its robust response, the consultation did not deal with any of the fundamental problems facing legal aid lawyers. 

It was like a prisoner being handed a questionnaire by his gaoler, asking if the gruel could do with some seasoning. 

The proposals set out in the consultation do not come anywhere close to addressing the issues faced by what remains of the immigration legal aid sector.

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What is the solution, then? 

It is difficult to see a government of any stripe committing to meaningful reform of the immigration legal aid system by either increasing rates, widening scope, and/or changing how lawyers get paid for the advice they provide. (Even Labour was luke-warm in its support in 2019.)

At what point do we accept that this is not going to happen and start thinking seriously about alternatives?

We have less leverage than those striking at criminal bar, whose participation affects “good guys” (witnesses, victims), and not just the criminal “baddies”. One imagines that if the immigration legal fraternity went on strike, the government would get out the bunting, and schedule another flight to Rwanda.

Is pro bono a viable alternative?

I provide 2 or 3 clients (like Hassan) at any one time with entirely free legal advice, sometimes through several stages of their case: fee waiver application, immigration application, and then appeal, if necessary. I provide several other clients, usually those facing deportation, with heavily discounted rates. 

However, whilst pro bono work – from actual immigration lawyers, not City law firms filling a quota – may be an answer in some cases, it does not work, for example, in an appeal, requiring expert reports, and which would ordinarily be funded by legal aid. 

And to come anywhere close to meeting demand, there would have to be a significant shift in mindset in the sector, where legal aid has generally been available for the last two generations of UK immigration lawyers, meaning that it was simply not something which they felt compelled to do (c.f. the United States, where pro bono work is much more part of legal culture). 

Could charity work? Bail for Immigration Detainees has done incredible work for over 20 years funded entirely by donations, and a team of committed volunteers. The same could be said more recently with the Ukraine Advice Project. 

Though it is difficult to see how this model – which concentrates on a narrow aspect of legal practice (immigration bail, or the Ukraine Scheme) – could work where advice was required across the full spectrum of immigration and asylum law. 

And when, in 2017, I applied to several charities for funding for a legal project to assist elderly Caribbean migrants who were having difficulties demonstrating their status, I was unsuccessful. In 2018, this became the Windrush scandal. 

The way that most remaining legal aid firms currently operate is via a cross-subsidy model, as Jo Wilding sets out in her excellent work reviewing the state of the Legal Aid market. Here, lawyers charging for private and higher court work subsidise caseworkers doing (much) less well paid legal aid work. 

But the problem with this model is the future: it requires experienced practitioners and firm-owners who can bring in relatively high private fees, and which they are then willing to surrender to subsidise the salaries of their employee caseworkers. 

I worry that the number of lawyers willing and able to do this is rapidly diminishing. 

Should we revisit the idea of a levy on non-legal aid law firms in order to subsidise the legal aid sector? This was raised by Michael Gove in 2015 as a possible solution, and had apparently been supported by New Labour in the 1990s, although was dropped when they got into government in 1997. 

Any such suggestion would clearly meet resistance (Gove’s proposal was dropped in 2016), but it would, in my view, be a more effective use of commercial firms’ resources than insisting on non-specialist associates and trainees meeting pro bono targets. 

It feels as though waiting for the government to reverse its position on legal aid funding is preventing proper discussion of these alternatives. 

In the meantime, if awarded a legal aid contract, I will attempt to cross subsidise, as this is the only way in which legal aid lawyers can currently make ends meet. 

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Sara gave birth to a baby daughter as the snow fell in Kabul. We made the application for a spouse visa, Hassan paying over £3600 in money he had to borrow. 

A few months later, I had to explain why applications under the Ukrainian scheme could be made for free, whereas his could not.

The passport application for their new baby daughter was repeatedly delayed, to the extent that I had to get involved and write to HMPO.  

We tried to escalate the spouse visa application when Hassan was told that Yacoob might only have a few weeks or months to live, and was repeatedly admitted to A&E. 

The visa was finally available for collection in Pakistan, almost 6 months after the application was made. 

Given delays by HMPO, an Emergency Travel Document application had to be made for the baby, with Hassan having to attend the visa centre in Peshawar in person. 

The family was reunited in the UK earlier this month. And on good days, Yacoob swings on the swings, and chases the ducks, whilst his parents watch on. 

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Names used in this post have been changed to protect their identities.