Garden Court Chambers responds to the Ministry of Justice (MoJ) consultation on the fees applicable to immigration legal aid work brought by the Illegal Migration Act 2023 in England and Wales.
Legal aid hourly rates have not been increased since 1996 and were in fact cut by 10% in 2011. Accounting for inflation, hourly rates of around £52 in 1996 would be double at approximately £100, as of May 2023. During that time, overhead costs have steadily increased in line with inflation. The hourly rates are now entirely unsustainable; lawyers actually lose money by taking on controlled asylum and immigration work and have had to reduce the amount undertaken for this reason.
Structural change needed
To ensure that individuals can access legal advice and representation in this complex area, make legal aid sustainable, and increase capacity for work undertaken under the Illegal Migration Act 2023 (IMA 2023), the following structural changes to the funding arrangements must be made urgently:
- a) Hourly rates must increase for all legal aid controlled work in line with inflation since 1996. Based on the Bank of England inflation calculator this equates to around £100 per hour.
- b) A 50% uplift on work undertaken under the IMA 2023 must be granted given its complexity, on top of the inflationary increase set out above, to enable providers to train new staff and take on this new and highly demanding work at pace.
- c) Payments on account should be made by the LAA every three months for controlled work as it is for civil legal aid. In the current system, providers are often not paid for work undertaken for up to three years after it commences. This creates an unmanageable, unnecessary and unsustainable financial burden on providers.
- d) Enhanced rates for controlled work must be available where they can be justified in line with the pre-existing criteria for enhanced rates for certificated work (exceptional competence, skill, expertise, speed, circumstances or complexity).
- e) The cost of accreditation for trainee casework assistants, casework assistants and senior caseworkers must be funded in full by the MoJ. Accreditation is a hugely costly barrier to maintain and increase existing levels of controlled asylum and immigration work.
- f) Disbursements incurred on controlled work matters must be paid by the LAA as soon as they are incurred, in line with the rules for certificated work. The lack of provision for this means that providers are forced to carry large levels of debt for months and even years at a time.
- g) Interpretation fees should be recalculated in line with inflation. At the current available rates, which have not increased at least since 2011, it is often impossible to find interpretation services that meet the interpreter qualification criteria set by the LAA. This problem is particularly acute for certain languages and is a key aspect of effective access to justice in this field.
The civil legal aid system is in crisis. Securing access to legal aid in the context of the new IMA 2023 will only exacerbate that crisis, and the MoJ proposals currently on the table go nowhere near tackling this. If the Lord Chancellor is serious about ‘ensuring fair payment and access to justice for all who seek it’, there are no shortcuts.
The structural changes, as set out above, a number of which would simply bring controlled work into line with civil legal aid, must be made to avoid tens of thousands of the most vulnerable people in our society being unrepresented and denied access to justice, compounding the many obstacles they face in pursuing legal claims under the new provisions of the IMA 2023.
