Sanctuary Information Project

A joint project between City of Sanctuary and the Northern Refugee Centre to help unrepresented asylum seekers

Challenging Legal Aid refusals for asylum appeals to an Immigration Judge

by John Donkersley (Former Immigration Solicitor and NRC Advice Services Manager)

Asylum seekers who are appealing a refusal of their asylum application are often dropped by solicitors. The legal aid system is run by the Legal Service Commission (LSC). Their criteria for the grant of representation in an immigration appeal is based upon not only financial eligibility but that the case has a better than 50 per cent chance of success or, if 50:50, the case is of overwhelming importance to the individual (which will be true of most asylum applications.

The problem is that if there is a 49 per cent chance of success representation is not granted.

To say that asylum appeals are a matter of life or death, this criteria is harsher than criminal legal aid where representation is allowed under legal aid even where someone is guilty!

On top of this the LSC has told solicitors and others holding immigration law contracts with them that they must have a 40% success rate for them to retain their contracts. This means that solicitors may still decide not to pursue a case which is better than 50 per cent or borderline to avoid the risk to their overall success rate. There is real allowance for solicitors who may do a very good job but who take cases that push the boundaries or that face conservative immigration judges.

How to challenge a refusal

This section deals with appeals against refusals of legal aid for first appeal, not refusals to apply for a 'reconsideration', to which different criteria apply.

When an application for asylum is refused, good practice will be for the solicitor to take their client's instructions of the reasons for refusal letter and to assess the merits. If the solicitor already knows that the case is so poor for it to have few merits, then under legal aid criteria for the initial legal help ("the sufficient benefits test" -see para 3 of 12.2.12 of the immigration contract specification below) they probably should already have dropped the case.

A solicitor or representative who believes that a case does not pass the merits test should complete the CW2 application for 'controlled legal representation' and have the client sign it. They should then issue the client with:

• a letter including details of how the client can appeal; and
• a copy of the first few pages of the CW2; and
• the CW4 appeal form

The CW4 should contain reasons why the case does not pass the merits test. It should also be signed on page 2by the solicitor to confirm that the client is financially eligible.

There are a number of options which need to be taken quickly because an asylum seeker may have an initial (case management review) hearing within two weeks of lodging their appeal:

• contact the solicitor and ask them if they are prepared to see the client to complete the CW2 and CW4
• if they have completed a CW2 but not issued a CW4 complain directly to the National Immigration Team of the LSC (see below) because they are failing to comply with contractual requirements AND lodge a self-completed CW4 with covering letter
• lodge a complaint under the solicitor's own complaints procedure - LSC and Law Society require them to have one. Send it special delivery to the partner handling complaints and keep a copy. State that they have failed to issue necessary CW4 forms and prejudiced your chance of challenging the legal aid refusal in time to be represented in your appeal. Secify to them that you consider a reasonable time to respond to be 5 working days in view of the asylum appeal timetable.
• If the solicitor does not then issue a CW4, complain to the Legal Complaints Service in the manner described on their website with copies of the letters sent and details of any other contact with them.

How to lodge the appeal

The asylum seeker should complete page 3 of the CW4 (the grounds for challenging the refusal) and send it with the copies of the CW2 and any supporting material to the National Immigration Team in London (see below).

They will then list it for hearing before their appeals panel

When you have confirmation that the appeal has been received, if there is a case management review hearing, or otherwise by post, ask for the full hearing of the appeal to be adjourned on grounds that you are appealing refusal of legal aid and would be disadvantaged without representation because of the complexities of the case. Attach any acknowledgment letter and any date for the appeal panel. Information on applying for adjournments of asylum appeals can be found on the AIT Website

LSC National Immigration Team, 29-37 Red Lion Street, London WC1R 4PP
Tel: 020 7759 1591 Fax: 020 7759 1592

Legal Complaints Service Website

NCADC info on legal aid funding limits and appealing refusals

Legal Aid Forms including The CW4

LSC Immigration Contracting Details

LSC Immigration and Asylum policy page including Immigration Contract Specification