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Attacks on Duncan Lewis Solicitors and legal aid undermine the rule of law and an individual’s constitutional right to access to justice (7 October 2020)

Date: 07/10/2020
Duncan Lewis, Main Solicitors, Attacks on Duncan Lewis Solicitors and legal aid undermine the rule of law and an individual’s constitutional right to access to justice

On Sunday 4th October, with reference to Duncan Lewis Solicitors, The Mail on Sunday and Mail Online reported that “taxpayers foot £55million bill for lawyers blocking deportation flights of Channel migrants” on the same day as the Rt. Hon. Priti Patel MP, Secretary of State for the Home Department gave her speech to the virtual Conservative party conference. Her speech was mainly focused on her plans to crackdown on immigration and in particular asylum policy. The timing of the article was no coincidence. It is noted in her speech that she admits that the Home Office is taking too long to make decisions on individual claims for asylum. We welcome this acknowledgement. It is a concern that immigration lawyers industry-wide have raised for many years. Unnecessary delays in decision-making by the government leaves vulnerable lives in limbo and hinders societal integration. Any proposed overhaul that makes asylum policy and procedure more efficient is indeed long overdue.

Priti Patel’s concluding remark during her speech on immigration that protecting the vulnerable ‘is what a firm but fair asylum system should look like’ is completely at odds with the pursuance of an abhorrent narrative that criticises the ‘lefty lawyers’ that are already doing this: as part of their role to protect the rights of the most vulnerable, and carrying out their legal duties to act in their clients’ best interests and ensuring that the government is being held accountable to deal with such cases fairly, promptly, and in accordance with the law. In its simplest terms, if an individual’s removal from the UK has been blocked by a court judge it will be because after considering all of the relevant evidence and law, the judge is of the view that such a removal would be unlawful. These decisions do not lie with the lawyers. It is the role of lawyers to carry out their professional duties and represent the interests of their client – they should not be targeted for that.


Duncan Lewis Solicitors and Fees Received

We were disappointed to read the Mail on Sunday article of 4th October. The suggestion that we have ‘pocketed’ £55 million of publicly funded immigration cases in the last three years is misleading, fuels the anti-lawyer narrative and needs to be placed in the right context.

The total fees we receive across any designated period will appear high simply because of the significant number of cases we deal with – thousands. It is no secret that we are the largest provider of publicly funded (legal aid) civil legal services in England and Wales, nor are we ashamed of it. Annually we handle approximately 20,000 cases across 25 areas of law; in the last 12 months alone we concluded approximately 7,500 immigration related cases. With over 700 staff we cover multiple areas of law with offices across England and Wales. Whilst we do immigration work, this is not our largest department in relation to fees received. Most of our fund spend goes into representing vulnerable children in care proceedings. We further represent the homeless, the elderly (who may require the appropriate care packages having been tax payers for most of their lives), individuals with mental health issues, and many more. We represent clients who are victims of the Grenfell Tower tragedy and the Windrush generation whose status in the UK has still not been resolved by the Home Office. We represent those vulnerable clients (whether British citizens or foreign nationals) who have been unfairly treated by public authorities. We represent people who have had their civil liberties breached.

The fees that we receive are predominantly cases that are paid by way of a fixed fee on a remuneration rate that is set by the government which, despite inflation and rising operational costs, has not been increased in real-terms in over 20 years. An individual is only eligible for legal aid if it is available for that area of law; they are financially eligible; and if the case is viewed to have a reasonable prospect of success. Lawyers working on legal aid cases are heavily governed; cases must be run in accordance with strict government case management rules and payments are only made once matters that have concluded (by Priti Patel’s own admission in immigration cases, this can takes years) and been audited. We continue to welcome these audits as they ensures that the standard of work does not falter and that there is no misuse of public funds.

It is important to note that any payments made by the Legal Aid Agency on a case-by-case basis also includes any expert fees incurred. As these payments are inevitably paid to us long after monies are owed to the expert, these fees incurred to represent our clients fully are having to be borne by us, the legal aid provider in the interim.

The real narrative is that the culmination of low rates and having to bear the responsibility of expert fees prior to the conclusion of a case means that legal aid providers nationwide continue to struggle and as each year goes by there are fewer and fewer providers of vital legal services available to represent vulnerable clients. This is leaving significant parts of England and Wales wholly under represented and without a voice.


Mr Amarpal Singh Gupta

The Mail on Sunday article identifies our CEO, Mr Amarpal Singh Gupta, for the apparent reason of highlighting his race and religion and incite racial hatred. Are we still living in an era where such low levels are being stooped too? Born in London, with grandparents having emigrated from India to Uganda, his parents emigrated to the UK and settled in Hertfordshire. He is not that dissimilar to the current Secretary of State for the Home Department, Priti Patel MP. He should not be demonised for the vital services that his company is providing to the vulnerable across society. All of our legal departments work closely with charities and not for profit organisations. This is not unusual in legal practice and most reputable firms do this. This is testament to the hard work of our employees who are committed to providing community support and there is nothing untoward with this. Although Mr Gupta is not personally involved in this pro-bono assistance, he is CEO of a company that is and the Mail on Sunday is incorrect to suggest otherwise.


Our Independence

We are not politically motivated. In accordance with our professional duties our lawyers represent our clients to the best of their ability, independent of personal political affiliations. It is astonishing to us that members of our staff having photos taken with members of the Labour party is newsworthy. Members of our staff have also had photos taken with Conservative MPs over the years and previously challenged the Labour-led government’s asylum policies when this has been required. We see no shame in having photos taken with these individuals. If it is for the purpose of inferring that our staff are “left wing activists” then we find that this article is clutching at straws.


Calais

Our work in Calais was entirely proper and we are extremely disappointed to read that Conservative MP for North-West Leicestershire, Andrew Bridgen, has suggested otherwise without first attempting to understand the nature of our work. Interestingly, our presence in the Leicester area, providing publicly funded legal services across multiple areas of social welfare law is directly helping those constituents that he has sworn to represent.

What were we doing in Calais? In common with Lord Alf Dubs and many other prominent individuals involved in supporting vulnerable asylum seekers, in 2016 we sought to provide advice and support to unaccompanied children who were living in squalid conditions in the Calais migrant camp. In two subsequent journeys to Calais in 2018 a small group of our employees travelled to help a charity called Refugee Community Kitchen.

Any cases we pursued were to ensure that the government followed their own laws. By example, we represented a vulnerable child, ZS, who lived in the migrant camp in Calais, under legal aid. ZS challenged the Home Office’s failures to follow the law and implement the ‘Dubs Amendment’. The Dubs Amendment required the Secretary of State to transfer some asylum-seeking children from Europe to Britain, and it was used to transfer a number of children from the migrant camp in late 2016. These visits to Calais were mostly funded on a pro-bono basis in close collaboration with reputable charities such as Safe Passage and other law firms. We certainly did not go to Calais to identify cases. Any individuals assisted from Calais under the ‘Dubs Amendment’ were referred to us previously. We do not tout for work. Across our offices the stark reality is that each month we have to turn away over 200 individuals who require immigration assistance. They are then often unable to obtain the legal assistance they require elsewhere due to the national shortage of legal aid providers.


Challenging Removals from the UK

The law does enable the Home Office to send asylum seekers back to other countries that they previously visited and are presumed to be safe (such as France or Spain), without considering their asylum claim. However, under the Home Office’s own guidelines, officials must also consider whether there are any reasons why being sent back to such countries would be likely to harm that particular person: for example, any physical or mental health conditions that make them particularly vulnerable, existing family members in the UK, or a claim of being a victim of trafficking. We have represented in all of these circumstances. In accordance with the law, these clients have every right to have their claim considered in the UK.

The reality is that these factors apply to many asylum seekers who arrive in the UK. The Home Office knows this, and has put in place safeguards to make sure it does not remove people unlawfully. However, as reported by the ECRE (European Council on Refugees and Exiles), we know the Home Office often does not follow its own rules and its own system has been criticised in the past by whistle-blowers . The government’s failure to follow its own rules on immigration law is the reason why legal challenges are brought so often. For example, the department has failed to give people proper legal notice of their removal – and therefore time to access legal advice and gather documents – before they are put on a flight. There is no excuse for these failures. It is no surprise that this invites legal challenges.

Where we pursue a legal challenge, on behalf of our clients, against removal from the UK to France or Spain for example, it is not to frustrate the system but to ensure that the right decision is being made with full consideration of our clients’ human rights. As recently as July 2020 the European Court of Human Rights condemned France for the “inhuman and degrading living conditions” of three asylum-seekers who were “living in the street without any resources”.

In other cases we pursue, medical experts have examined our clients who are unwell, and have found that they are at risk of a significant deterioration in their health if they are removed from the UK. For example, some clients who are mentally unwell could face an increased risk of suicide. Other clients have specific COVID-19 related vulnerabilities that put them at risk. For example, one client with breathing and heart problems has been hospitalised four times in the last month. Country experts have found that the conditions for asylum seekers in some third countries – especially in light of the COVID-19 pandemic – pose a risk of homelessness or destitution to those who are sent back. In recent cases, the courts have ordered flights to be cancelled or deferred after they accepted our legal arguments, including incidents where there was an arguable risk that those scheduled to be removed would be destitute and homeless on arrival in the third country; and/or the Home Office had not properly considered detailed representations that had been put before it by lawyers in specific cases.

We typically take on ‘removal clients’ after they are referred to us by concerned NGOs who meet them in detention. Asylum seekers who are detained and who face removal have no means to navigate the complex web of immigration laws, nor to challenge a large government department which has access to top legal advice. It is easy (albeit wrong) for the Home Office to break its own rules in order to remove asylum seekers. Time and time again, we see that poor decisions by the Home Office put asylum seekers at risk of unlawful and unsafe removal. We take on these cases to ensure that the Home Office follows the rules. Forcing accountability in this way is particularly important when life, liberty, and the UK’s international obligations are at stake. It is worth noting that in many cases, once we have submitted information to the Home Office on behalf of clients, the department itself has accepted – without intervention from the courts – that it should defer or cancel removals. This is at odds with the Home Secretary’s recent rhetoric that we are ‘lefty’, ‘loud-mouthed’ or ‘activist lawyers’ – which of course, is not the case.


Receiving Abuse

It would seem that the government along with some media outlets is creating a rhetoric which creates hatred not only of immigration and publicly funded lawyers, but of immigrants generally. The effect of this has very serious consequences to individuals’ lives and liberty. We are now seeing our lawyers experience abusive behaviour and receive abhorrent and threatening messages online daily for simply trying to do their job and be a voice for the most vulnerable: victims of torture, victims of trafficking and unaccompanied asylum-seeking children. This has to stop.

Please be assured that we do not deal with cases we think have no merit. We are very aware of our responsibilities to our clients and the Legal Aid Agency, and ensure that costs incurred from the public purse are done so reasonably. As set out above in terms of how we get paid, if a lawyer runs a case that has no merit, they are not paid. If a lawyer pursues unjustifiable ‘endless legal claims’ as Priti Patel alleges, they are not paid. We are only paid legal aid fees for the reasonable work that we carry out, as judged by the payer, the Legal Aid Agency on behalf of the government. The real outrage is that the Home Office continues to break its own rules2. This naturally invites legal challenges. If the Home Office did its job and acted in accordance with the law and its own rules, these types of challenges would not need to be made.



Explanatory Note

It is important to note that under UK and international law, it is not illegal to claim asylum, nor to enter a country by irregular means in order to claim asylum. The Home Office grants asylum to approximately 3 out of 4 people who seek asylum in the UK3. They are undeniably genuine refugees and describing them as ‘illegal’ entrants makes no sense. It is also not illegal to travel through European countries to get to the UK. There is no legal requirement for asylum seekers to claim asylum in the first ‘safe country’ they reach. At a briefing to the Home Affairs Committee on 3rd September 2020, Abi Tierney, Director General of UK Visas and Immigration at the Home Office, told MPs that of approximately 5,000 people who have arrived by boat so far in 2020, 98 per cent were asylum seekers (rather than ‘illegal migrants’). Of those whose cases had been considered, the UK had granted protection to two thirds. She also conceded it was likely that of those that the Home Office was seeking to remove to European countries, at least two thirds were genuinely in need of protection4.







1 UK: Whistleblowers Allege Chaos and Violations of the Rights of Asylum Seekers in UK Home Office
2 ‘Toxic atmosphere’: the Home Office unit everybody wants to leave
3 National Statistics How many people do we grant asylum or protection to?
4 Parliament TV

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