The asylum seekers facing a Kafkaesque legal nightmare
guardian.co.uk, 4 August 2011
Government cuts to legal aid for asylum seekers have left many without expert advice or access to their own case files
Willy lgilima, an asylum seeker from the Democratic Republic of Congo Photograph: Felix Clay
Woldat Teklebrhan has found an unusual way to pass the time. The 28-year-old Eritrean asylum seeker keeps practising his driving licence theory test on a DVD. "I do the test because I don't have anything else to do. I get them perfect – 20/20," he says with pride. But Teklebrhan can't drive in this country. In fact, there is not much he can do. He can't work. He can't study. He can't claim support from the state. Officially he is not allowed to stay in Britain. But he can't leave. And now he can't get even find a solicitor to help him escape this demoralising and exhausting state of limbo.
The number of people fleeing persecution and arriving on our shores has fallen significantly in recent years. In the first three months of 2011, 4,845 people sought asylum in the UK. Yet these people, from failed states and oppressive regimes, from Somalia, Eritrea, Iran and the Arab Spring uprisings, are funnelled into a Kafkaesque nightmare. Legal aid has been slashed and is facing another £350m cut. More than 400 barristers have warned that victims of torture, children and the mentally ill will have their lives put at risk by cuts that, they say, will create legal aid "deserts" where it is impossible to find publicly funded access to justice.
Asylum specialists are going out of business. Last year the legal charity Refugee Migrant Justice (RMJ) shut down, leaving 10,000 asylum cases in limbo. Twelve months on, some case files are still locked away in storage. The largest remaining provider of publicly funded legal representation for asylum seekers, the Immigration Advisory Service (IAS), was placed in administration last month in acrimonious circumstances. Another 8,140 asylum and immigration cases are now in limbo. Asylum seekers such as Teklebrhan are used to living in a poverty trap; now they are caught in a legal trap.
"No representation. No access to justice. It's the end of the road for asylum seekers across the country," says Christine Majid, the founder of Positive Action for Refugees and Asylum Seekers (Pafras), a Leeds-based charity. "If you've got no legal representation what hope have you got of going to court and representing yourself? There's no justice. It's tragic."
Trapped in a seemingly hostile and certainly confusing system, many asylum seekers are too scared to give their names to journalists. Teklebrhan isn't. "I am not a criminal," he says. "I have nothing to hide." Under rules established by the Blair government, asylum seekers are placed in hostels while their initial claim is assessed by the Home Office, given limited benefits (two-thirds of the lowest level of income support, which works out at just over £35 a week) and not allowed to work. Most people fleeing danger do not arrive with ID and paperwork to support their claims. Many are too traumatised to tell the coherent chronological story of their flight from oppression that the authorities demand, and so their claims are, at first, rejected. Once rejected, in most cases they lose their accommodation and other state support. They are classified as "destitute", a condition designed to deter others from seeking asylum in Britain. Still not permitted to work, they must survive on charity, find themselves a solicitor who can access legal aid, unearth new evidence and submit a fresh claim. One further hurdle recently added to the system is that asylum seekers who submitted their first claim more than four years ago must now travel to an office in Liverpool to personally hand in a fresh claim. The train or bus fare is beyond the means of many.
Two years ago, the most recent period for which figures are available, there were 3,000 destitute asylum seekers in Leeds. Although asylum arrivals have fallen, refugee charities in the city say they are busier than ever this year because people are more in need of help. Last year, six law firms were licensed to take on legal aid asylum cases in Leeds. This year, a new system of distributing legal aid for asylum devised by the Legal Services Commission (LSC), a government quango, cut those providers to two. Of these two firms helping asylum seekers, the IAS was contracted to provide 97.1% of the legal aid cases. Its collapse means the majority of the city's asylum seekers now have no access to justice.
Teklebrhan, a trim, young man in a fitted black shirt, blue jeans and black trainers – all donated to him by friends – never intended to come to Britain. He just wanted to escape Eritrea after he was imprisoned for befriending Pentecostal Christians. He was mistaken for one, he says, and was sent to a labour camp, escaping with others during a sandstorm. He travelled through Libya, into Italy and then to Calais, from where, in 2009, he was smuggled into Britain inside a lorry.
According to Teklebrhan, the Home Office interpreter made mistakes in his crucial first interview and so his claim was rejected. Since then, he has been sleeping on friends' sofas and, occasionally, the floor. "When you see me you can't tell I do that," he says with pride. "I'm always clean. I don't want to be demoralised. I have to meet the challenges in my life, whatever they are." Eritrean asylum seekers cannot be deported because the Eritrean authorities will not accept deportees without a passport – and Teklebrhan is extremely unlikely to be granted one. So he has learned good English and hoped to submit a fresh asylum claim with new evidence, until the closure of the IAS ruined his plans.
Teklebrhan's IAS caseworker had just commissioned an expert report when the charity closed. Teklebrhan does not know the name of the expert. So his paperwork, and the new report, is locked away. It may take months to retrieve. "It is too frustrating," he says softly. "I don't think the Home Office in this country can do human rights. I'm not a bad man. I'm not doing anything wrong."
Willy Igilima, an asylum seeker from the Democratic Republic of Congo, is in a similar predicament. Igilima's original claim was turned down in 2007; his second claim was mistakenly turned down after the UK Border Agency lost his original paperwork. Homeless, and living off charitable food parcels in London, his hopes rest on a letter sent from the Congo to his IAS caseworker that prove his claims of being tortured for being an opponent of President Joseph Kabila. The trouble is that this letter is now somewhere in the locked offices. So far he has had no reply from a letter he sent to the IAS administrators. "I don't know if it's the UK government's policy to make asylum seekers struggle. Because most [politicians] are rich they think everybody is able to buy something or get a solicitor but we need help from them. That's why we are here," he says. "There's no justice."
Kate Ferguson, of the charity Solace, which provides counselling for traumatised asylum seekers in Leeds, says the sudden shutdown of the IAS has caused "a lot of distress". One woman was found in floods of tears outside the Bradford IAS office; her visa was about to expire and all her original paperwork was inside. Another asylum seeker who fled domestic violence in central Africa says the IAS closure is the third time her paperwork has gone missing in the hands of solicitors. "We're a small charity," says Ferguson. "We're not in a position to help fund people to travel for a solicitor. But people are turning up with us saying: 'Can you help with our train fare to Rotherham or Sheffield?'" Teklebrhan hopes to find a new representative in Rotherham but first he must find £8.40 for an off-peak train fare to get there.
Immigration lawyer Phil Wilcox lost her job when RMJ closed last year. She joined the IAS and has now lost her job again. Like other staff, she was escorted out of the Leeds office, unable to take any casework with her so she could give (unpaid) help to her most vulnerable clients. "At a cynical level, our clients are assets, so the administrators want to keep hold of them," she says. Although she is now unemployed and has not been paid for her work in July, she is primarily worried about her destitute clients. Several had appeals pending. A few had been shunted from RMJ to the IAS and are now without legal representation once again. She regularly sees one client sleeping rough at Leeds railway station.
The IAS closed because the Legal Services Commission, which provided it with a £15m annual grant, discovered it had incorrectly claimed legal aid payments totalling several million pounds. "The IAS was a good firm. We did good work and people really appreciated that," says Wilcox. She was not aware of over-claiming at the IAS but points out that legal aid entitlement rules are "exceptionally complicated". Other legal professionals agree. A group of prominent lawyers including Gareth Pierce and Louise Christian accused the LSC of using "a smokescreen of financial irregularities" to close the organisation. According to the LSC, however, it was the charity's trustees who ultimately took the decision to go into administration and the LSC has been left to pick up the pieces.
The LSC itself will soon be abolished and incorporated into the Ministry of Justice as part of the government's bureaucratic "bonfire". It claims it is working to transfer the 8,140 IAS cases (of which 45% are asylum and 55% other immigration cases) "as soon as possible", and has found new legal representatives to take on 1,991 of them.
The closure of the IAS is, however, only a small part of a wider squeeze on legal representation for asylum seekers. Alison Harvey, general secretary of the Immigration Law Practitioners' Association, has witnessed a steady decline in the number of asylum lawyers since 2004. Many private firms are shutting their loss-making immigration departments. Solicitors used to receive legal aid for asylum cases based on how many hours each case took. To a government faced with a spiralling legal aid bill this appeared to be a legal gravy train with no incentive to conclude cases swiftly. So a fixed-fee system was introduced. Public hearts probably won't bleed for lawyers but the fees are comparatively modest – £450 for the first stage of legal advice – and Harvey argues they have been set too low. "Most immigration and asylum cases cost more," she says. "Do them well, and you lose money."
Worse is to come. There will be a further 10% cut to legal aid fees this October, and the forthcoming legal aid bill seeks to drastically reduce its scope. Asylum seekers will still get legal aid but immigrants won't, create two categories: "worthy" asylum seekers and "unworthy" economic or family migrants. In reality, people move between these categories. A 13-year-old fleeing civil war in the Congo who is given leave to remain in the UK for five years may no longer be judged at risk once they turn 18 but by then they have a British partner and a British education. So rather than seeking asylum they hope to stay on as an immigrant, except that in future they won't be able to afford the legal fees. "People say: 'Oh, immigration is not as serious as asylum,'" says Harvey. "For most people, being able to stay with their parents or children is the most important thing in the world. These are the things that people die for." In tears, one asylum seeker tells me that if she is returned to central Africa she will kill herself.
Harvey is convinced the bill will not save money. Unable to afford lawyers, immigrants will represent themselves. Their hearings will be more muddled and will take longer. They will need more help from the judges – "and judges aren't cheap," says Harvey. The government has carved up what qualifies for legal aid in a complicated way and individuals will challenge this – costing more money. As well as cutting costs, the government should look at what is value for money, believes Harvey. Without financial help, people with a legal right to stay in Britain may get turned away. Bad decisions will put people's lives at risk.
For asylum seekers such as Teklebrhan and Igilima, they must hope their files are not lost, and that a law firm somewhere not too far away will be willing to take them on. "I like the language. I have a lot of dreams to be here and stay here," says Teklebrhan. But he wonders how he will do it. "If someone doesn't have a place to sleep or a permit to work or a permit to stay, how can he survive? That's why it's no life here. But if I get a permit to stay I know 100% I can survive myself." If only claiming for asylum was as straightforward as passing your driving theory test