Early Legal Advice for Protection Applicants September 2012 – June 2014

Overview

The ‘Early Legal Advice’ (ELA) research project was undertaken to examine the provision of legal advice to people seeking international protection in three EU Member States: Estonia, the Republic of Ireland and the UK. It focussed on the impact of ELA on the determination of protection claims in very different EU member states, with variations in terms of numbers seeking asylum, the countries from which asylum seekers come and different administrative systems for the determination of asylum claims. It was conducted with a view to encouraging collaboration between legal advisers, case owners, non-governmental organisations (NGOs) and asylum seekers, and moving away from the current, often adversarial, model.

Topics

Asylum and RefugeesDetention and DeportationEuropean Union

Regions

Europe

Theory

There is a considerable body of regulatory research examining what motivates compliance with the law, and how regulators can encourage this. There are particular issues that arise in the field of migration, but the question of how to encourage voluntary compliance with the law has broad ramifications. Criminologists and legal theorists are generally sceptical of the extent to which compliance can be elicited through the implementation of harsh penalties (the deterrence view) or even through appeals to self-interest, preferring instead to emphasise the role of procedural justice. Justice must not only be done, but it must be seen to be done. Braithwaite (2010) argues that the three elements that are necessary to facilitate compliance are a) ensuring asylum seekers know and understand what is required; b) ensuring they have the capacity and resources to comply; c) ensuring that they are willing (if not committed) to comply. We were interested in ELA as an element in generating a sense of procedural justice. According to Tyler et al’s (2009) study on procedural justice, people’s compliance with the law is strongly linked to their views about justice and injustice.

Methods

The research was commissioned with a view to producing an advocacy toolkit and was principally concerned with evidence gathering rather than research per se. The three selected countries (Estonia, Ireland and the UK) are all states where there were legal support organisations with an active interest in ELA. They were selected to reflect differing experiences and understandings of ELA. All three countries have quite different experiences of dealing with asylum seekers and different ways of processing applications and dealing with people during the asylum process.

We began the project with a two day workshop on the asylum process and the legal context in each state. In these discussions we developed four arguments in favour of ELA that we wanted to explore with asylum seekers and other stakeholders:

1. ELA means better decisions, resulting in a reduction in the volume of appeals and reduction in expenditure;
2. ELA encourages trust in the system on the part of asylum seekers, meaning more engagement, and reduced likelihood of absconding;
3. Late or no legal advice means poor decisions, creates problems for genuine claimants, increases complex appeals;
4. ELA facilitates co-operation between different stakeholders, including NGOs, legal representatives and decision makers.

In this initial workshop we also considered arguments that might be used against ELA. We thought that these might include: set up costs; running costs; vexatious claims; acting as a ‘pull factor’; and the possibilities of the promotion of poor quality advice. The outcomes of the workshop were used to design the interview schedules. Separate schedules were designed for asylum seekers and for stakeholders. In total, we interviewed 19 people, seven of whom were asylum seekers or refugees, three were from NGOs and nine were in some way involved or had an interest in the decision making progress, for example as providers of legal aid or with oversight of decisions at the first level. All of the individuals were already known to the organisations at a national level through their own practice.

We originally intended interviews to be supplemented by analysis of case files. However, given that the researchers were all legal practitioners conducting this project alongside their own advice work this was considered to not be necessary given their extensive knowledge of the area.

The evidence for this report was gathered between September 2012 and May 2013. Interviewees were accessed and interviewed by project partners, all of whom worked in legal advice provision in the asylum sector. All interviewees were given information about the project and signed consent forms.

Findings

ELA can be a vital part of a high quality system of international protection and it should include, where possible, advice for people before they make an application. It should not be seen in isolation but as part of a fair and humane decision making process and therefore as an element of an integrated system. When in place, it increases the confidence of all parties in the decision making process and improves the quality of decisions.

ELA can be undermined by other elements of the asylum system. For example, the practice of dispersal, whereby an asylum seeker is moved away from the location of the legal advisor before the first decision, can make it difficult, if not impossible, to provide the support that is needed at this crucial stage. In addition, detention and the use of a ‘fast track’ system for determining asylum claims undermined the effect of ELA as the time needed to properly engage in a case was not available or the restrictions imposed on access to those in detention militated against the quality of legal advice that could be given.

One of the factors that affected the suitability of ELA was the time allocated to the submission of a statement and supporting evidence and, in some cases, the delay in being able to obtain some evidence, such as medico-legal reports.

Trust and confidence between the legal advisor and the asylum seeker were seen an essential component of the process. The involvement of a legal advisor throughout a case can also assist in the development of expertise of the advisor with such cases. In addition, if the case proceeded to appeal, the conclusion was that the legal advisor would have a greater knowledge of the case by that stage and this would reduce the amount of work to be done to present the appeal.

Legal advice per se was not the same as quality legal advice and the latter was more important than the availability of legal advice itself. In fact, the view was expressed by some that bad legal advice was worse than no legal advice.

There is a need to distinguish between legal advice and legal information. Information about the process, no matter how detailed and well intentioned, was not the same as a legal advisor using their particular expertise and knowledge.

In the countries examined, ELA was not always supported by the availability of legal aid. Where it was, such as in the UK, the criteria and restrictions surrounding legal aid meant that it was not always possible to provide the type of ELA which was considered to be the most appropriate. The main factor which impacted upon the availability of legal aid was the cost. One of the issues raised in this report was whether or not the calculation of cost can be limited to the amount spent on legal aid. It was considered by some that the cost of detention and dispersal and the longer term costs associated with challenging a poorly presented and determined decision were also relevant in deciding if the system was fair and efficient.

Outputs

Providing Protection. Access to Early Legal Advice for Asylum Seekers
Reports | Bridget Anderson and Sue Conlan | 2014