The System for Providing Free Legal Aid to People Seeking Asylum Is Broken, Some Say
Waqas Ali grabs a file of papers and drops it on his work desk. His hands hover in the air for a few seconds after the file has landed.
It’s Tuesday 7 September and that was how the file – which holds his asylum application and those of his family – was dropped on the desk in front of him at the Legal Aid Board offices in Smithfield when he picked it up earlier that day, he says.
“Like, okay, these are your files, take them, literally like this. Like they didn’t really care what I have been going through,” said Ali.
His and his family’s asylum case never progressed beyond an unsuccessful appeal of an initial negative decision. That’s because the Smithfield office didn’t work on it for more than a year, which extended, Ali says, the family’s stay in direct provision.
He is now taking it out of the hands of the Legal Aid Board entirely, he says, and a solicitor outside Dublin has agreed to work on it for free.
Many asylum seekers like Ali rely on free or close-to-free legal help through the Legal Aid Board to pursue their cases and advocate for their interests. Mostly, the Legal Aid Board outsources those cases to private solicitors.
But Ali and others say they face issues with that too, that sometimes those private solicitors show little appetite in representing their cases, which extends their time in limbo.
Some solicitors say the fee system is banjaxed. The fees the Legal Aid Board offers don’t come close to covering the time and effort that asylum cases take – and, they say, it’s time for reform.
A spokesperson for the Legal Aid Board says it has quality-control measures in place and that its private solicitors have to follow best-practice guidelines. They couldn’t comment on particular cases, they said.
Between 2015 and 2019, the number of applications to the Legal Aid Board for help with asylum cases rose from about 1,500 to 2,500, show government figures in the “Catherine Day” report.
During the same period, the number of cases the board was handling in-house dropped sharply (from about 1,500 to 600), and the number of cases it referred to private solicitors shot up (from about 650 to 2,100), shows the same report.
The Legal Aid Board has three offices dedicated to dealing with asylum cases, including the one in Dublin city witha small full-time staff.
There are, by work hours, just shy of six full-time solicitors and five legal clerks in the Smithfield office of the Legal Aid Board, says the Catherine Day report. That number is small, the report says, “and they deal with other matters in addition to international protection applications”.
Ali says that, at first, an in-house solicitor from the Legal Aid Board’s Smithfield office helped him with his case. “But after, like, my first interview, I think she left that office or she wasn’t available.”
He was assigned a second solicitor, he says. “They couldn’t get one from their office, that’s why they gave me a private one.”
In 2019, Ali and his family’s cases were then assigned again to different private solicitors, the Stoneybatter firm of Cahir O’Higgins and Company.
O’Higgins isn’t on the list of private solicitors used by the Legal Aid Board for immigration cases any more, he says. But it’s unclear since when, as neither O’Higgins nor the Legal Aid Board answered a query about that.
On 24 October 2019, Ali was refused asylum. On 16 July 2020, the International Protection Appeals Tribunal (IPAT) rejected his appeal of that decision, which O’Higgins’ firm had filed.
After a refused appeal, asylum seekers can either file for a judicial review or ask their solicitors to apply for leave-to-remain.
The costs of taking a judicial review aren’t automatically covered by the legal aid scheme, but applying for leave to remain is.
But Ali and O’Higgins couldn’t agree “on terms”, says O’Higgins. Ali has a slightly different account.
O’Higgins’ firm decided against putting in a review of the leave-to-remain application on his behalf, says O’Higgins.
Ali says he let the Legal Aid Board office in Smithfield know how the situation had changed. Its managing solicitor Chris Walsh agreed to help with the case and file the application, Ali says.
So he dropped supporting documents, including proof of employment and several payslips, to the office twice, including on 3 September 2020, according to a receipt signed by the managing solicitor there.
A year later, the leave-to-remain application review still hadn’t been filed, Ali said on 7 September.
The legal aid board didn’t respond to a query about that, saying it couldn’t comment for client confidentiality and data protection reasons.
Malik Amir Iqbal, another asylum seeker, says he and friends had issues with an assigned solicitor through the Legal Aid Board’s office dealing with asylum cases in Cork. (He’s unclear if they were in house or not.)
They deal with their cases half-heartedly and mostly ignored them, he said. “She contacted me just once in year.”
“Solicitors are expected to communicate effectively with clients from the time a case is referred to them until the client’s case is closed and to keep clients informed of all developments in relation to their cases,” says the legal aid board’s terms and conditions.
The advice Iqbal got for his first interview came late and wasn’t helpful, he says.
“They called me day before interview and said have a look on your story they will question you about your story,” says Iqbal. Everybody knows that they’ll be asked questions about their story, he says.
Later, he found a private solicitor and asked the board to transfer his case, he said. “He did very well efforts for me so not all are same but mostly are not interested in our cases.”
Keeping an Eye
Asylum seekers unhappy with a solicitor from the Legal Aid Board or its private panel canfile an official complaint.
The board also has quality-control measures in place to “ensure that private practitioners carrying out legal aid work provide a quality service”, said a spokesperson.
All solicitors have to follow the legal aid board’s best-practice guidelines, they said.
And the legal aid board reviews the files of legally aided people “from time to time”, they said, choosing files at random.
The spokesperson didn’t say how many complaints against its private solicitors had been filed in recent years.
Stephen Kirwan, an associate solicitor at the law firm KOD Lyons, who is on the board’s private practitioners’ panel, says it’s challenging to police things when there is no documented proof of misconduct.
“If there is no paper trail, it’s very difficult,” Kirwan said.
Before Ali finally gave up on waiting for the legal aid board to help him with his case, he filed an official complaint.
The 26 August complaint says how frustrated he is at the managing solicitor of the Smithfield office, who never filed his review application for leave to remain and how it was delayed in the first place because of disagreements with O’Higgins’ firm.
After he filed the complaint, he heard back in early September from the managing solicitor that some documents – those related to Ali’s wife and brother’s cases – were missing from the file.
That refuelled Ali’s frustration, he says.
“I think this [is] going beyond a joke. Is there anyone who can listen to me and help me with this situation,” says Ali in another email to the Legal Aid Board’s head office in Caherciveen, Co. Kerry. He threatens suicide in the email.
A letter from Walsh, the managing solicitor at the Smithfield office from 7 September – the same day Ali picked up his case documents from there – describes the latest chapter of the saga.
Ali has been in “constant contact” about his case, it says, but “unfortunately I had not been in a position to progress the matter”. It doesn’t say why.
The letter recognises Ali’s frustration and how Ali wanted to pick up the file in its entirety, including his brother’s and wife’s documents, to take it elsewhere but they still didn’t have them.
“Our office contacted the private practitioner’s office on the 3rd September last. The files were collected by courier on the 6th September last,” says the letter.
O’Higgins, meanwhile, says Ali had picked up all the files in August 2020. He has an email proving it, he says, although he didn’t share that.
(When Ali emailed him asking to share a copy of the email, O’Higgins asked for his date of birth, address and name. Ali said he didn’t feel comfortable sharing those details further and that he’d always used the same email address.)
As for the Legal Aid Board, O’Higgins said they “received all referral files back a very long time ago”.
“This is an absolute fact. Any assertion to the contrary is false,” said O’Higgins, in an email.
O’Higgins said Ali should have contacted him if he had any complaints instead of going to the media.
Changing the System?
In September 2020, a government advisory group, establishedin October 2019 and chaired by the former secretary-general of the European Commission, Catherine Day, produced the Catherine Day report.
Its recommendations for good practice in supporting asylum seekers guided the government in drafting its white paper on ending direct provision.
Among other things, the Catherine Day report recommended that the government pump more resources into the Legal Aid Board.
The Legal Aid Board “should be sufficiently staffed and resourced to support around 3,500 new applications annually, from the reception stage until a final decision has been taken, including, if required the judicial review stage”, says the report.
It also recommends setting up a dedicated international protection unit and dealing with most asylum cases “in-house”. But the board “should also be given resources to maintain a small external legal panel if needed”, it says.
A spokesperson for the Department of Justice declined to respond to any queries including whether the international protection office has ever surveyed asylum seekers about the quality of services they get from the Legal Aid Board. It referred queries to the Legal Aid Board.
“The delivery of such legal services, and how they are delivered to International Protection applicants, is a matter for the Legal Aid Board and their Refugee Legal Service, who are statutorily independent of the Department,” they said.
Iqbal, the other asylum seeker, says he’d heard that the private solicitors the Legal Aid Board sends cases to, were poorly paid for that work. “That’s why they are not interested to work hard on asylum cases.”
Both Kirwan, from KOD Lyons, and Wendy Lyon, partner and solicitor at Abbey Law Solicitors, say the rates are too low.
Says Lyon: “The amount of work you need to do to a good job on these cases is phenomenal and the fees were never anywhere near what they should be.”
In 2019, the Legal Aid Board changed the fee structure for its international protection private panel, lowering rates.
It pays €300 for helping someone with an asylum questionnaire to be submitted to the international protection office (IPO), €300 to advise them for their first interview, and €400 to appeal a negative decision, says its website. An additional fee is offered if an applicant has a spouse or a child.
Those fee changes made it “unsustainable”, says Lyon. “I left the panel when the fee structure was redone in a way that would de-facto result in a cut of more than 50 percent in legal fees in many of my cases.”
Kirwan says the new fee scheme splits their previous fees in two and reduces them.
If you hire a barrister for the case, Kirwan says, you have to split the fee with them.
Lyon says policies like that are forcing experienced immigration solicitors out of the Legal Aid Board’s private panel. Although solicitors of other areas are “capable of learning refugee law”, she says.
“I was also increasingly uncomfortable with the policy of not paying for solicitor’s attendance at the IPO interview,” says Lyon.
Lyon has attended some interviews for free and they usually require a solicitor’s help or intervention, she says. “It’s completely unacceptable that applicants are expected to do these alone.”
A spokesperson for the Legal Aid Board didn’t respond to a query asking if the board plans on increasing its rates for solicitors on its private panel.
Kirwan, who is still on the panel, says that as someone trained to handle refugee cases, he hopes to stay and help disadvantaged clients through the scheme.
“There is a lot of people who take immigration work at the Legal Aid [Board] that just don’t have sufficient training,” he says.
But the board does sometimes provide trainings and they’re excellent, he says.
“But we don’t have an awful lot, so it’s important to put resources in. My fear is that immigration clients become the forgotten-about,” says Kirwan.
The Legal Aid Board has to provide for people in all kinds of cases, he says. “For people with mortgage arrears, they have to apply it to family law, you know, child care. There’s a whole load of other cases that they have to consider.”
The Movement of Asylum Seekers Ireland (MASI) had advised those working on the Catherine Day report that private solicitors shouldn’t be used, says Bulelani Mfaco, who is part of MASI.
Low pay for these cases discourages solicitors from doing their best, he says, and for some, the money isn’t worth the effort. “Especially if the applicant has to appeal for protection,” said Mfaco.
Lyon, the solicitor at Abbey Law, says doing away with most private solicitors is a terrible idea as having solicitors employed by the government to fight its own decisions isn’t appropriate.
“The clients are people who are effectively going up against the state. They need independent representation,” she says.
For Ali, who’s been living in direct provision since 2017, what matters is getting the closure of a decision on his asylum case.
“I live in direct provision. I have three kids. It’s too much living like this, you can’t imagine how it is,” he says. “My kids keep asking me when are we moving?”
[CORRECTION: This article was updated at 10am on Wednesday 22 September to correct the year that the Legal Aid Board last changed its fee structure for its private solicitors.]