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The real impact of the legal aid cuts

How the cuts to legal aid have affected asylum-seekers, migrants and the lawyers who defend them.

 

One morning in January 2014, Gloria Jackson was returning from the supermarket with her groceries when she saw five policemen standing near the door of her home in London. When she tried to pass and go inside, the officers told her that she was under arrest. Jackson, a 57-year-old NHS psychiatric nurse who worked with dementia patients, was searched in the street as her neighbours looked on, locked in the back of a police van and driven away.

She was in shock and confused. Until that day, Jackson says, she was unaware that she did not have the correct immigration status to live and work in the UK. Born in the Caribbean, she arrived in England with her teenage son on a visitor’s visa in 1999 to stay with her mother and sisters, who are British citizens. Jackson says that when she saw the education opportunities in Britain, she decided to obtain a student visa to study nursing. On qualification, she applied for a work visa through a solicitor. Her son, Joseph, joined the navy, got British citizenship and fathered a son. Jackson did night shifts in residential nursing homes and hospitals and loved her work. Their life in the UK was turning out well.

In 2012, after she had been working in British hospitals for a decade, people at the nurse bank that employed her made inquiries about her immigration status for the first time. The Home Office told them that Jackson was entitled to work. It was only two years later, when the police arrested her, that she was informed that she did not have the right paperwork after all. Her solicitor had failed to apply for the correct visa. Charged with fraud, Jackson faced up to three years in prison.

When her criminal case went to trial, Jackson was able to prove that she had been unaware of her true immigration status and the jury acquitted her. But her troubles were far from over. Unable to work and facing removal from the UK, she remains in limbo, living in her elderly mother’s spare room in north London, while she fights to remain in Britain.

“My head is just bursting. I just want to move on with my life,” she tells me, staring at the living-room carpet. “But I am so glad I have Ana,” she adds, looking up. “Why didn’t I know her all those years ago?”

***

Ana Gonzalez is an immigration and asylum lawyer at Wilson Solicitors, a well-respected firm in a field where unscrupulous practitioners have been known to take advantage of migrants and refugees. It is her job to help some of the most vulnerable and often demonised people in the country to stay here when the system moves against them.

Her caseload is large and varied. On the same day as an appointment with Jackson, she saw a victim of domestic violence from the Caribbean, a Somali asylum-seeker and a Nigerian woman who was smuggled into Europe by sex traffickers.

“We can get upset, we can get stressed out – but never bored,” Gonzalez says at her office in Tottenham, north London, when I spend a few days shadowing her.

More than eight million people in Britain – 13 per cent of the population – were born abroad. Net migration to the UK is at near-record levels, with a peak of 330,000 in the year ending March 2015. This was three times the government target and nearly twice what it had been in 2013. But as demand for legal services for migrants increases, the public funding for representation has been slashed and the pool of firms taking on such work has shrunk. In 2009, England and Wales had the highest legal aid spend per capita in the world, administered by the Ministry of Justice’s Legal Services Commission (LSC). Then the Legal Aid, Sentencing and Punishment of Offenders Act came into force in April 2013, part of a plan to cut £350m a year from the £2bn annual bill. It replaced the LSC with the Legal Aid Agency, which is still part of the Ministry of Justice but makes independent decisions.

Under the act, many categories of criminal and civil cases no longer qualify for legal aid funding, including immigration cases involving clients who are not in detention, such as Jackson. Many who previously could
have claimed legal aid have been left unable to afford lawyers and have to represent themselves. Jackson would be in that situation, too, were it not for Joseph, now 30, who is paying her legal costs and joins his mother for the meeting at Gonzalez’s office.

Gonzalez is using Article 8 of the European Convention on Human Rights to argue that Jackson’s right to family life will be breached if she is forced to return to the Caribbean. Her entire family is in the UK – she has no one to go back to.

“Your case is very solid,” Gonzalez tells her. “It is very difficult at the moment for those without British children and British partners to get to stay in the UK if they haven’t been here for 20 years but you have your grandchild and your son. The ball is with the Home Office now. If they refuse you, which is likely, they will have to give you right of appeal and then we go before an immigration judge. I believe you will have a very good case in front of an immigration judge, because you are a very likeable person. You have no criminal convictions, you have given so much to this country and you would give more if you could.”

But Jackson looks defeated. She has been waiting for nearly six months to hear back from the Home Office. Gonzalez suggests that Jackson contact her MP to make inquiries that could speed things up.

“I don’t have an MP, because I don’t have a vote,” Jackson says.

“Even if you live on a bench, you have an MP. Everybody has got one.”

Gonzalez wants to find out if there is any new evidence she can submit to strengthen the case. “You’re living with your mum. What do you do for her? Shopping?”

“Actually, I’m her carer,” Jackson replies. “She had a shoulder replacement.”

“That strengthens your case so much more,” Gonzalez says, smiling. “It would be really good to get a letter from her doctor confirming that your mother has been relying on you for day-to-day support. If you were not there, the government would have to provide a social worker to come in.”

Jackson describes how much she misses her job. It’s the first time in her life that she has found herself sitting at home with nothing to do.

Gonzalez listens and then shakes her head. “They’re gagging for people like you in the NHS, with your work and experience,” she says.

***

Gonzalez is also a migrant. Born into a working-class family in a small town in Galicia, Spain, she studied employment law at a university near her home town. She came to London to improve her English in 1994, aged 22, working part-time as a waitress and office administrator. By chance, she started temping at the centre for Refugee and Migrant Justice (RMJ), which provided free legal advice and representation for vulnerable migrants and asylum-seekers. (The centre closed in 2010 after cash-flow problems caused by changes to the legal aid system.) Gonzalez loved the work at RMJ and was inspired to do a legal conversion course.

Since then, it has been an all-consuming vocation. In 2013 she found herself fighting Home Office removals for two of her clients on Christmas Day while her husband was stuffing the turkey. “I love my job dearly but it takes a lot out of you,” she says. “You don’t do this for the money. People talk about fat-cat lawyers – we’re very skinny here.” According to research by the Law Society, immigration and asylum solicitors earn £35,000 a year on average, compared to an average salary of £51,500 across the legal profession.

The legal aids cuts have prompted Wilson’s to take on work from ever more private clients seeking help with immigration matters. One of Gonzalez’s cases involved a wealthy British businessman based in east Asia whose fiancée’s visa ­application had been refused. Settlement visas are expensive: on top of the £956 application fee, applicants have to pay a £500 health surcharge, even if they never use the NHS, so they spend nearly £1,500 before they even see a solicitor. But the more money you have, the easier immigration ­becomes. If you can pay an extra £400, your application will be resolved on the day of your appointment. For £7,000, you get the Home Office’s “super premium service”: at a time and date of your convenience, a courier will collect your application documents and a staff member will then visit your home to obtain a signature, photograph and fingerprints. A decision is made within 24 hours.

Gonzalez accepts that the government wants to attract foreigners who can afford to invest. But many of her clients are women who first came in on visitors’ visas and perform jobs that are low-paid but essential to the UK, such as care-home workers and domestic cleaners. For them, official immigration can be almost unaffordable.

It has also become harder in recent years for asylum-seekers to obtain permission to stay in the UK – the cases that take up most of Gonzalez’s time. Although the number of asylum applications in the past few years has been far below the 2002 peak of 84,130, the government has been tightening the criteria for successful appeals. In 2014, there were 24,914 asylum applications. About 59 per cent were initially refused and of those cases that went to appeal 28 per cent were successful, against 40 per cent in 2010.

Asylum cases still qualify for legal aid, but at a reduced level. When Gonzalez first started at Wilson’s in 1999, solicitors were funded to attend asylum screening interviews. Now, they are funded to attend only if their client is a minor. She is used to having every legal aid expense quibbled over at the end of a case – not just her time, but also expenses incurred obtaining vital medical and psychological reports on her clients, even if the money has been pre-approved by the Legal Aid Agency. “Many really respectable firms have stopped doing legal aid and I entirely understand why,” Gonzalez says. “They make us fight for every single piece of funding and the bureaucracy involved is brutal.”

For each asylum case, solicitors are paid a fixed fee of £413. If their work costs exceed this, they won’t get paid more for it unless they incur expenses three times that sum. “It’s a ridiculous system,” says Gonzalez, whose costs can often be in the region of £600 to £700. “If the work has to be done, we just do it and we don’t get paid for the extra work. We can absorb that to a degree, because we’re a big firm, but that is something that we cannot keep on doing, because it’s not sustainable.”

***

Later that afternoon, Gonzalez has an appointment with Florence Abuku. She says that Abuku’s case is a “classic example of Home ­Office bad behaviour”. Originally from Benin City, the trafficking capital of Nigeria, Abuku, who is 30, was forced to work as a prostitute in Italy for two years before being sent to the UK in 2008. Her traffickers made her cash fraudulent benefit cheques here. She was caught and sentenced to 15 months in prison, before claiming ­asylum while in Yarl’s Wood Immigration Removal Centre. Granted leave to remain in 2010, Abuku has just been notified that her settlement application has been refused.

“This is a copy of your refusal,” Gonzalez says. “I’m going to go through it with you.”

Abuku leans forward to read the letter, her black curls falling across her face. Gonzalez explains that applicants in Abuku’s position should be given indefinite leave to remain after five years so long as they have no
criminal convictions. But when the Home Office carried out a criminal records check, it threw up the pre-asylum conviction for fraud, so her application has been rejected.

“This is a very weird decision,” Gonzalez tells her. “The courts already knew about that conviction when you won your case. Had it not been for the trafficking, you would not have committed the crime.”

Tears well up in Abuku’s eyes. “They [the traffickers] made me go and do this.”

“It is very low of the Home Office to throw this in your face all these years later,” the lawyer says. “But I honestly believe this is a mistake by somebody who didn’t know how to do their job. We’re going to challenge this and we’re going to reverse it. My plan is to write to the Home Office and threaten them with litigation, with judicial review.”

Abuku was suicidal at Yarl’s Wood and has been diagnosed with post-traumatic stress disorder. “I was beaten by bad boys at the side of the river in Perugia,” she tells me. “I would stand by the side of the road and they would throw eggs and stones.” She was raped. “Now this. The stress is too much for me.”

“This is just a setback,” Gonzalez says, gently. “It’s a blow but it is fixable.”

She is right. A few weeks later, news arrives that the Home Office is giving Florence the right to settlement after all.

Gonzalez’s frustration at Home Office bureaucracy, and the ministry’s mistakes when it comes to asylum in particular, is not unique. In 2013 Mark Stobbs, the Law Society’s then director of legal policy, said that the government would get better value out of the system, were it not for the “inefficiency, delay and culture of disbelief” at the Home Office. As a result of its obsession with numbers and targets, the department is determined to fight even the most promising cases, Gonzalez says. Her next client after Abuku is Amal Mohamed, a Somali asylum-seeker, whose case has cost the taxpayer well over £10,000 in legal aid. Now, after two and a half years of going back and forth between judges, they are back at stage one: the Home Office has agreed to look at Amal’s initial asylum application again.

The biggest barrier that Gonzalez’s clients face is stigma from the media. “They always report on the family on benefits in a £1m home in west London with five kids,” she says. “After 16 years of doing this work, I know those people are a minority.” She tells me about former clients of hers who have won their cases and received papers to stay: the main buyer at a big department store in central London, a lingerie designer with his own thriving company. “The tabloids never report on those people.”

Gloria Jackson, the NHS nurse, hopes that ultimately she, too, will be allowed to stay. A month after her meeting with Gonzalez, she heard that the Home Office had given her the right to appeal, so she will be going to the high court to appear in front of an immigration judge. She is still waiting for the court date. Given the huge backlog of cases, Gonzalez doesn’t expect the hearing to take place for another nine months at least.

The names of all of Ana Gonzalez’s clients have been changed to protect their identity

This article first appeared in the 10 March 2016 issue of the New Statesman, American Psycho