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Immigration lawyers attack Patel’s reform proposals

By Monidipa Fouzder >>

(6 May 2021)

Immigration lawyers have issued a robust defence against proposed reforms that could see them being hit with wasted costs orders as part of plans to end what the Home Office believes to be the practice of unmeritorious immigration and asylum claims brought at the last minute to frustrate the deportation process.

A six-week consultation on the Home Office’s New Plan for Immigration closes today. Proposals to streamline asylum claims and appeals include a ‘good faith’ requirement for claimants and their representatives, and encouraging courts to use wasted costs orders (WCO) in immigration and asylum matters.

The Law Society said the proposals lacked credibility because they are not supported by evidence or detail, and muddle immigration, asylum and nationality laws.

I. Stephanie Boyce, Society president, said: ‘The suggestion of so-called “good faith” requirements for lawyers working in asylum is not only a nonsense, it would also undermine trust in the justice system. Asylum solicitors are already bound by the highest ethical and professional standards – they are highly regulated, not just by the Solicitors Regulation Authority, but also by the Ministry of Justice’s own Legal Aid Agency.’

In an 81-page consultation response, the Immigration Law Practitioners Association said: ‘Even if the WCO rules are framed in such a way as to have equal application to both parties, the impact will fall disproportionately upon appellants, because the Home Office is able to treat adverse costs orders as operating costs. The burden of meeting them does not fall upon the Secretary of State or a Presenting Officer personally, but upon the taxpayer, so they have little deterrent effect. By contrast, costs orders against appellants and their representatives do fall upon them personally.’

The association voiced concern over additional details about the wasted costs proposal that were provided at a roundtable held in April. ‘One of those details was that the stated policy objective for these proposals is to reduce the number of adjournments and postponements in the First Tier Tribunal. Some data was provided verbally during the meeting, however when questioned, it was clear that the impact of [HMCTS] reforms had not been taken into consideration when making this proposal. Reform is expected to reduce the number of adjournments and postponements as appeals are only listed once the appeal is ready. This was accepted in the meeting and undermines the stated policy objective.’

Priti Patel said the plan would ‘tackle the practice of meritless claims which clog up the courts with last minute claims and appeals’.

ILPA explained in its response that the UK already operates a decision-making process that weeds out unmeritorious repeat claims. The association added that there were broadly two scenarios where repeat claims go on to be heard at the First Tier Tribunal and both operate in the context of widespread trauma-related mental illness.

‘Refugees’ ability to secure advice, disclose their experiences and effectively investigate and evidence their own claims are sometimes seriously hampered by symptoms of depression, anxiety and post-traumatic stress disorder. Victims of torture, domestic abuse, trafficking or sexual assault often need time and a sense of safety before they can begin to disclose their experiences. Detention and isolation, in particular, greatly impede the full disclosure and evidencing of asylum claims,’ ILPA said.

The association said repeat appeals are seen when circumstances have changed or the applicant had no or poor legal advice in their first appeal.

(Courtesy: The Law Society Gazette)