|
UNHCR
comments on the consultation paper by the Lord Chancellor’s
Department on the proposed changes to publicly funded immigration
and asylum work of June 2003
I. Introduction
The UN General
Assembly has entrusted UNHCR with the responsibility for providing
international protection to refugees worldwide and for seeking permanent
solutions for them . Further, under Article 35 of the 1951 Convention
relating to the Status of Refugees (“the 1951 Convention”),
the United Kingdom (UK), as a State Party, undertakes to: “co-operate
with the Office of the United Nations High Commissioner for Refugees
in the exercise of its functions, and shall in particular facilitate
its duty of supervising the application of the provisions of the
Convention.” UNHCR has therefore a direct interest in national
legislation of signatory countries relevant to the application of
the 1951 Convention. UNHCR welcomes the opportunity to respond to
the proposed changes to publicly funded immigration and asylum work.
Our comments refer primarily to the asylum-related components of
the proposal.
UNHCR supports
attempts by the UK Government to increase the efficiency and cost-effectiveness
of its current asylum system, inasmuch as principles of fairness
are respected. UNHCR is concerned, however, that the proposed restrictions
on legal assistance would be contrary to the achievement of this
goal. Access to effective legal counseling and representation throughout
the asylum procedure is a key procedural safeguard. While UNHCR
acknowledges that problems may arise as to the quality of the advice
provided, in its view, the solution would be to focus more on ensuring
quality legal advice rather than on reducing the possibility to
access it. A purely cost-oriented approach aimed at limiting the
hours of legal advice available would likely harm very deserving
cases along with abusive cases, while likely not reducing overall
costs in the long term.
Asylum-seekers
are extremely vulnerable throughout the status determination process.
They are required to navigate an unfamiliar legal system, generally
without English language skills. This vulnerability is further exacerbated
by the extreme distrust of authorities felt by asylum-seekers, often
due to their experiences prior to and during flight. In UNHCR’s
view, limitations as a matter of principle, as suggested by the
proposal, fail to recognize the diverse legal needs of asylum seekers,
his/her specific background and profile, and take into account the
nature of the claims. A preferable approach would be to focus on
ensuring the quality of legal representation, for example through
the suggested accreditation scheme, and to focus on “frontloading”,
that is ensuring the necessary resources and competent staff to
ensure a high-quality first instance stage, as outlined in our section
on alternative approaches.
II.
Specific Comments on aspects of the proposal
Limitations
on the number of hours at the initial stage:
UNHCR is concerned
that limiting the number of hours of legal advice disregards the
unique situation of individual asylum-seekers. Asylum cases are
by their nature fact specific inquires. The statement of facts is
the foundation of a claim for asylum and thus it is essential that
the record reflects the full extent of the client’s experiences.
The level of
complexity may vary greatly with each claim. Moreover, there are
many reasons why persons may require some time before being able
to raise specific events which led to their flight, such as feelings
of fear, shame, culturally motivated taboos, or trauma. Establishing
a level of trust between the asylum-seeker and the legal representative
that would allow the asylum-seeker to share information that is
vital to the claim may therefore take some time. Placing limitations
on this stage of the process hampers the development of a full and
coherent set of facts. Limiting the number of hours a legal representative
may spend with a client may therefore create a system where very
deserving claimants are not granted asylum because their case-file
did not fully reflect the experiences that caused them to flee their
country.
This is combined
with concerns that strict limitations on the number of hours of
legal advice, will restrict the capacity of legal representatives
to research and remain knowledgeable about the current situation
in the countries from which their clients have fled. The effect
of this combination is that legal practitioners may be unable to
spot important factual and legal issues in a client’s case,
either as a result of not being aware of the current country situation
or as a result of the fact pattern not being fully developed or,
even more likely, some combination of both of these factors.
UNHCR is further
concerned about the ability of legal representatives to attend the
Home Office interview with their clients. The importance placed
on the answers given during the client interview makes it essential
that clients attend these interviews with legal representatives.
While legal representatives may not speak during the interview,
due to constraints that have been placed on the interview by the
government itself, part of the representative’s role is to
ensure the transparency of the process. This goal is vital not only
to the individual refugee, but to ensure the fairness of process
across the immigration system generally. UNHCR recognizes the problems
raised by the Lord Chancellor with respect to the quality of the
representation during such interviews. In UNHCR’s view, however,
the problem lies in ensuring quality representation rather than
limiting it.
Limitations
on the number of hours of advice and interpretation for appeals
work (adjudicators and courts):
Currently, according
to the proposal itself, a considerable proportion of first instance
asylum decisions, about 1 in 5, are overturned at the adjudicator
stage (22% in 2002 and 17% in the first quarter of 2003). Limiting
the amount of time allowed for appeals restricts, however, the ability
of the legal representative to prepare and develop high quality
cases for appeal, compounding the problems posed by lack of time
for consultations at the initial stage.
The challenges
faced in seeking to do so are the same as faced at the initial stage
and outlined above. In addition, the increasing complexity of the
immigration and asylum system in the UK require more time to fully
and effectively navigate its intricacies. UNHCR is concerned that,
due to time restrictions on legal representatives in the initial
stages, cases will not be fully developed and that essential points
may only be raised at the appeal stage. If the appeals process is
further limited, important facts may never come to light.
While UNHCR
understands the problems raised as regards over-claiming in appeals
work, in its view, here as in the initial stage, the focus should
be on ensuring quality representation, rather than on reducing the
ability of asylum-seekers and legal representatives to do their
work.
UNHCR is further
concerned at the restrictions in interpreters costs proposed at
the adjudicator stage. Asylum-seekers are often requested to communicate
traumatic events in great detail. Feelings of fear, shame, culturally
motivated taboos, or trauma, as well as the foreign environment
may contribute to the difficulty of this task. It is impossible
to do so, however, when interpretation services are not provided
whenever necessary. Interpretation should, moreover, be provided
in a language which the applicant understands.
The
effect of time restrictions on changing legal representation:
UNHCR is concerned
that the limitations on time both at the initial and the appeal
stage may prevent refugees from seeking other counsel, for example
when a trust relationship could not be established or where the
claimant has doubts as to the quality of the legal advice. The quality
of legal representation may have an important impact on the outcome
of the case and the protection that is granted to the individual.
The “shopping around” for advice and of suppliers would
therefore best be countered by ensuring sufficient and quality legal
advice, rather than by pressuring claimants to remain with legal
counsel that may not be able to represent well the interests of
the claimants.
A further concern
arises in the context of asylum-seekers who are dispersed throughout
the UK. When individuals must change legal representatives as a
result of dispersal, the amount of time they can spend with a legal
representative once they reach their ultimate destination should
not be limited by the time they have spent with a legal representative
prior to relocation. A time limit on legal work at this stage would
have that effect and could significantly disadvantage those who
are subjected to dispersal.
Alternative
approaches
UNHCR strongly
believes that adequate legal advice should be available to any asylum-seeker
going through the refugee status determination process. Further,
a limited amount of time to prepare cases is likely simply to result
in a greater number of initial decisions that do not fully reflect
the asylum-seeker’s unique situation, and consequently, a
greater number of decisions that are appealed and increased costs.
It is for this
reason, that UNHCR strongly encourages Governments to engage in
“front-loading”, that is focusing on providing the necessary
resources and competent personnel – be they decision-makers,
interpreters or legal counsellors, to ensure a thorough and fair
initial decision-making process. This should in all cases include
a personal interview by the competent body, where applicants would
be able to present and challenge evidence brought against them.
Ideally, the interview and the examination of the claim should be
oriented towards co-operative inquiry rather than the adversarial
one which currently prevails.
A strong first-instance
system should also reduce the number of appeals, as decisions are
less likely to be overturned. It is of particular relevance when
the appeals process is to be reduced from a two-tier to a single-tier
system, as is currently under discussion in the UK. As noted above,
quality legal advice is an essential part of a strong decision-making
process. To the extent that cuts in funding are required, it would
be useful to stagger them over a number of years in order to ensure
that an alternative structure is in place to absorb the number of
asylum-seekers who will not be able to receive the assistance that
they need from a legal aid funded organisation.
Such alternative
structures could include more substantial pro bono programmes dedicated
to asylum work, legal clinics which have the capacity to advise
asylum seekers, increased capacity of NGOs to provide advice and
creating programmes dedicated to training law students in the area
of immigration and asylum law. While such programs are not preferable
to the current system, they would help to ensure the minimum rights
of asylum seekers who would not receive the service that they need
under the Lord Chancellor’s current proposal.
Accreditation
As noted above,
in UNHCR’s view, rather than strict time limitations, the
focus should be on ensuring the quality of legal advice. In this
respect, UNHCR welcomes the UK’s desire to promote and ensure
high quality legal representation for refugees. The proposed accreditation
scheme is a positive step towards establishing a standard for representation
and creating a means of monitoring legal representatives to ensure
that standard is maintained.
To ensure the
efficacy of the accreditation scheme benchmarks should be set by
the monitoring body which ensures uniformly high levels of competency
amongst all practitioners. Further, an effective sanctioning mechanism
should be put in place and used by the monitoring body in order
to maintain a high level of service across the profession. Further,
it would be useful to consult high quality practitioners within
the UK who work in the area of immigration and asylum and to utilise
their experience in the development of specialised programmes to
improve the quality of immigration and asylum legal services.
UNHCR London
August 2003
|
