Legally Aided Representation Of Trafficked Persons, Disincentivizing Legal Practitioners, Stifling Survivors Rights

Legally Aided Representation Of Trafficked Persons: Disincentivizing Legal Practitioners; Stifling Survivors' Rights Date: June, 26 2023 Performed by: Dr. Samantha Currie Research Context: Lawyers Representing Trafficked Persons 1) Case file project (2019-2020) An Uphill Struggle: Securing Legal Status for Victims and Survivors of Trafficking 2) Modern Slavery Policy and Evidence Centre-funded collaborative project (2020-21) Access to Legal Advice and Representation for those who have experienced Trafficking and Modern Slavery 3) British Academy Mid-Career Fellowship (2021-23) Navigating the legal landscape on 'modern slavery': a socio-legal investigation into the role of lawyers who represent victims of trafficking Methodology Underpinning This Paper - Qualitative and socio-legal approach, drawing on interviews with solicitors and barristers who advise and represent victims and survivors of trafficking.  - Spanning practice areas of Immigration, Public, Criminal, Housing. Sample of 35 lawyers interviewed.  Self-selecting sample: high-quality lawyers engaged and interested in the issues of trafficking and modern slavery; not representative. Practitioner Perspectives 1. Case work on behalf of trafficked persons characterised by 'constant battles' with both Legal Aid Agency and Home Office. 2. Clients have multiple legal needs, spanning e.g. NRM, immigration and asylum, housing, community care, criminal justice. 3. Considerable time spent on rectifying mistakes, e.g. of Home Office decision- makers and other lawyers. 4. Clients' criminal convictions, based on forced criminality, pose particular challenges (deportation orders) for securing immigration status of clients. 5. Doing extra unpaid work pro bono perceived by many legal aid lawyers as crucial to ensure their clients receive quality representation. 6. Work has significant personal and emotional impact. Focus Here: Fixed Fees - Backdrop of capacity problems in legal aid sector: immigration advice legal aid deserts, as highlighted by Jo Wilding  Wilding, J., 'No access to justice: How legal advice deserts fail refugees, migrants and our communities (Refugee Action, May 2002)  Resoundingly reported by participants that immigration legal aid fixed fees too low to facilitate complex and long-running legal work necessary on trafficking cases to a sufficiently high quality. - Time factored in to the standard fixed fees insufficient to adequately pursue the legal avenues open to their clients. Result? Cases viewed as financially unviable; compounding capacity problems.  Corroborates findings of other research, including that by ATLEU: 'It has destroyed me: a legal advice system on the brink' (October 2022) Practitioner Responses To The Deterring Effect Of Fixed Fees 1) Reducing (or refusing) trafficking case work. 2) Taking on trafficking cases, but limiting the scope of work undertaken on that aspect,  e.g. prioritization of asylum claims over pursuing trafficking-related legal issues. This approach is clearly only possible for those clients with an additional protection claim and carries risks should the claim be unsuccessful.  e.g. not taking a witness statement or doing so in time-limited way, risking its quality. or, may do so in a short space of time which increases the risk of it being poor-quality.  Reinforce Sommerlad's argument that the nature of fixed fees creates 'an irresistible pressure towards routinized justice'.  (Sommerlad, H., 'Reflections on the reconfiguration of access to justice' (2008) 15(3) International Journal of the Legal Profession, 179-193). 3) Meeting the escape fee threshold to avoid fixed fees and trigger payment by hourly rates  Threshold: if paid at appropriate hourly rate, the work carried out would exceed at least 3 times the value of the standard fixed fee. Differing perspectives on this. On the one hand:  Some lawyers viewed escape fee route as feasible and so incorporated this model of running trafficking cases.  Emphasised importance of 'understanding how the legal aid fees regime works' and 'frontloading aspects of the case work, such taking a detailed witness statement and obtaining a medical report'. On the other hand: Relying on meeting escape fee deemed too risky by some due to uncertainty as to whether the threshold will in fact be met. Links with Jo Wilding's findings: Risk involved in turning the file escape creates a pressure to remain within the fixed fee which, in turn, can influence the approach to the case work so that it is workcapped. Wilding, J., Droughts and Deserts: A Report on the Immigration Legal Aid Market (Joseph Rowntree Foundation, 2019). Influence of firm size and culture:  'If you take a trafficking case you know you're not going to be able to bill that with the Legal Aid Agency for probably over a year or a year and a half or something like that. For a lot of firms, you can see it's not sensible, from a financial point of view, to take lots of those cases. They might prefer to take a case that going to conclude a lot faster and then that person's stuck without getting legal representation.' (LR12)  'It does feel like you have to choose one or the other, either having very high caseloads and not doing much work on them and churning through them, which I think a lot of firms do on asylum cases, or you try and have fewer cases and do lots of work and go the escape fee route, but then you need to have an alternative source of cash flow in the meantime.' (LR14) Significance Of Geographical Location? Practitioners' Views Welcome!!  'Some organizations will work towards that escape fee, and, I could do that, but in Liverpool you can't do that because that means I'm helping probably three or four times less people than I would help. It's just not viable in a city like Liverpool. So if you were doing the escape fee way you would probably frontload your case, you would take a full statement, you would be getting your psych report straight up, you'd be doing extensions of costs for your disbursements, and then that way you might push the NRM to make a decision sooner, which obviously is beneficial to the client if you're confident that you can push them to that positive decision sooner. Whereas the situation in Liverpool, there's already people going unrepresented in this city, so I can't thereby give someone that amount of my time.  We're [Liverpool] a dispersal area, aren't we? Also, we were an interview hub. Those two factors, and not enough lawyers doing publicly-funded work. I've got colleagues that work in other cities that say they don't go above 30 cases, but they're doing that escape fee all the time, whereas I'm four days and I think I've got about 105 cases.' (LR02) 4) Taking on trafficking cases on the basis that lawyers would need to dedicate additional unpaid time to the case work, often out of standard work times and at personal cost.  Many of the lawyers shared misgivings about the effect and sustainability of taking this approach, for example:  I think if I was to estimate, I probably do about a day a week, which is pretty breath-taking. I think there may come a point that I may run out of steam, but we will keep going while we can. (LR29)  I did make a conscious decision a few years ago to stop doing so much trafficking, because it was all I was doing and I found it really draining and emotionally quite taxing. So I do a wider range of work now, I don't just work with trafficking victims, and that's been quite good. I think I'll probably stay in the area of migrant rights, probably for as long as I'm working in the law, because I really like the clients and it's really fascinating and they're all really interesting people to work with and generally just really grateful that somebody is doing something for them. (LR31)  I guess some people are better at switching off than others and maintaining that professional distance. I'm finding it personally, incredibly hard. Again, this particular cohort, they are so misunderstood and neglected and they've been ignored for so long... I think there is a lot of burnout for that reason because you feel that you do your best but there just isn't enough resources. (LR22)  The stress that you feel about basically being the only person that this individual contacts. Very often you're the only person that they are talking to and the only support they've got, there's no other network, and they're in crisis. Then you can't get the funding and so you're left with this impossible choice: do I just help this person as far as I can, as is humanly possible, because what's going to befall them is so much worse and they're at such risk, or do I have to make the decision to keep on hammering the Legal Aid Agency trying to get funding in place. And they'll tell you they're coming back to you tomorrow. That's no good. Where does that person sleep tonight? So that's what kills you. It's the same with the compensation side of work. I mean, they're so obstructive. Every case is complicated so dramatically by the level of bureaucracy, the ongoing no, no, no, that culture of refusal that exists, that gets in your way of doing your job. (LR27)