Original article by Frances Timberlake republished from Open Democracy under a Creative Commons Attribution-NonCommercial 4.0 International licence.

Extra £20m of spending should be celebrated, but it pales in comparison to funding for hostile environment policies

Navigating the UK’s Kafkaesque immigration system is incredibly challenging. One ‘wrong’ turn – a delay in an application, an incorrect form – can quite literally risk a person’s life.

This is deliberate; the system is designed to be hostile. If you’re someone with an immigration or asylum problem, you’ll probably need a lawyer for specialist advice. But what happens if you can’t afford one?

In theory, everyone claiming asylum in this country has the right to access legal aid if they can’t afford it themselves – which is the case for most people seeking asylum, who are not allowed to work. In practice, though, decades of chronic underfunding have left the system in crisis and many people without the necessary legal support. This year only 43% of people claiming asylum had access to a legal aid lawyer, down from an estimated 73% in 2020.

Last month, after years of concerted organising by communities and legal workers, we received a glimmer of hope. Justice secretary Shabana Mahmood announced an extra £20m of funding for the civil legal aid system – the first increase since 1996.

While this is to be celebrated, it’s nowhere near enough. To put the figure into perspective, the last government spent £22m on using the Bibby Stockholm barge as asylum accommodation, £318m on the failed Rwanda removals plan and £996m on asylum housing contracts with Clearsprings, a private firm that has been accused of “poor accommodation and lack of care for residents”.

We’ve seen almost 30 years of stagnating salaries for legal workers, legal aid providers shutting down, and more people being forced to face injustices without support. Now, we need to see much bolder action from the new Labour government if we are to get out of the downward spiral that legal aid is in.

How did we get here?

The UK’s legal aid system was created in 1949, on the post-war principle that wherever you are, whatever problems you face and however much money you have, you should be able to have legal advice and representation if you need it.

But while it has never actually been that easy for migrants to access legal aid, the last few years have made it particularly punishing.

In the 2010s, as successive governments’ austerity regimes violently stripped away safety nets for working-class people – migrants and UK citizens alike – legal aid was cut drastically. The appropriately named ‘hostile environment’ policies also meant people whose immigration claims fell through faced losing access to healthcare, housing and jobs.

All of this paved the way for Boris Johnson and Rishi Sunak’s governments to house migrants in disused military barracks for years on end and threaten to send them more than 4,000 miles away to Rwanda. At the same time, successive justice secretaries have refused to fund legal aid provision, making it almost impossible for a person to challenge a legal decision that could change their life.

In real terms, at least £950m of legal aid funding has been lost every year since 2012 and many people have lost their right to legal aid altogether as the scope for eligibility has been reduced.

Legal aid workers, meanwhile, have not just had their salaries slashed, but their public value degraded. Immigration lawyers in particular have been demonised, denigrated by ministers and in the press as ‘lefty lawyers’ – leading to them becoming targets of violent hate crimes.

We are now seeing the predictable and painful impacts of this on the people whom we at Migrants Organise, a charity supporting refugees and migrants, work with every day.

A person seeking asylum who doesn’t have access to legal advice is far less likely to be able to put together the evidence and testimony needed to ‘meet’ the Home Office’s stringent burden of proof.

If their case is refused, they’ll face an even more byzantine appeal system and be expected to represent themselves in front of a judge – still without getting any advice on the regulations that they’re expected to meet. But several large immigration firms have also stopped taking on asylum appeal cases because they don’t get paid enough to do so, forcing many people to tackle gruelling and complex immigration procedures without ever speaking to an adviser.

Then if a person is refused again by the court, because they had a poorly prepared application and no one to advise them, they could be detained and deported to a country where their life is in danger.

Mohammed*, an aspiring barrister and a young migrant advocate at the We Belong charity, has experienced this first-hand. “I waited over five years for a decision on my asylum claim, and then my case got refused and my legal representative dropped me because they’d stopped taking appeals,” he explained. “This was a month into my Masters. It took me almost a year to find another legal aid lawyer, and it was only through the support of community organisations who knew good lawyers and could refer me.

“For people who don’t speak English or have the confidence to seek out support, it’s impossible. Now, after having thought I wouldn’t make it to study anything, I’m able to study law and go into the work that I know will help to fix the problems I myself experienced.”

Pushing back

Having an unsupported legal aid system ruins lives – but it does not need to be this way. Experts, lawyers and the communities who need them have increasingly been speaking out and coming together to document and challenge the impacts of not having access to legal aid.

Organisations and legal aid providers from across the country have been working to have their voices heard. Many contributed to a review of civil legal aid that Sunak’s government launched last year to better understand how well the current system works (or, more to the point, doesn’t). And this year, Young Legal Aid Lawyers and Migrants Organise have run a joint campaign to help those most impacted by the legal aid crisis to educate their MPs on it and demand change.

Researchers such as Jo Wilding, the author of The Legal Aid Market, have also shed light on the extent of the crisis and drawn attention to the expanding ‘legal aid deserts’ where no legal aid is available at all. And legal cases have been brought against the government. Most recently, in June this year, Duncan Lewis Solicitors challenged the government’s violation of its duty to ensure legal aid is available as a result of not increasing fees. The case was settled in September on the basis that the new lord chancellor would decide whether to increase rates in November.

This organised pressure has been impossible for the government to ignore. Finally, the new Labour government has taken heed of the decades of evidence shared, and taken a first step towards positive change by committing new funding.

The additional £20m announced last month, which will be spent over the next four years, is intended to “mark the next step in government plans to rebuild the legal aid sector”. The money will be used to increase legal aid fees for those working in the housing and immigration sectors, with the government saying it is aiming for a 10% uplift in hourly rates, to £65 outside London and £69 in the capital.

Though the final figures have yet to be announced, we at Migrants Organise calculate that the proposed payment fees could increase immigration legal aid work by just over 30%. This, we hope, will open up some capacity amongst legal aid providers to take on cases of people who have been waiting without support.

But in the grand scheme of things, this remains a small injection of cash into two severely neglected areas of legal aid, which will struggle to make any significant indent.

A small uplift in fees isn’t enough to make working in legal aid any more attractive, meaning it won’t address the current crisis in the recruitment and retention of legal aid workers. There is also no sign of a commitment to regularly review funding for legal aid, in order to avoid us ending up in the same position we are now after four more years of inflation.

As successive governments have built a profitable industry out of cruelty, money has been syphoned off to private companies at the expense of public services – housing, transport, legal advice – needed to create better futures for our communities. The hostile environment for migrants remains very much alive, with Labour promising more money for immigration detention centres, increased deportations, and terrorism charges brought against those forced to cross the Channel by boat. Many people still face barriers to accessing justice even with the latest announcement – whether due to language issues, misinformation, or delays.

“Yes, we’re fighting to have more legal aid lawyers. But when will the next increase happen?” asked Mohammed. “We need lawyers now that care, especially when the immigration system is so damaging. Quality work, care and compassion should be the core of legal aid. It’s not just about funding, it’s about the ideology and principle.”

So, whilst we’re celebrating the work that went into this change, we’re under no illusion that for people caught up in the hostile environment – or indeed anyone in the UK in need of a lawyer – life is going to get much easier.

In the short term, we need a legal aid system that is better resourced than the government’s current proposal, for funding to be sustained and raised with inflation (like in many other publicly funded services), and for it to be available to all groups of people who need it.

And ultimately, it is only an end to the hostile environment that will prevent people from being forced into precarious situations in the first place and bring about the dignity and justice that we all deserve.

With renewed hope for change, we need to continue organising with all those impacted by the crisis in legal aid to speak out and call for what’s needed.

*Names have been changed

Original article by Frances Timberlake republished from Open Democracy under a Creative Commons Attribution-NonCommercial 4.0 International licence.