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½Û×ÓÊÓƵ looking into the demand and supply of legal aid across England and Wales, covering housing, family and crime. To complement the research, we reached out to Jo Wilding, a law lecturer at the University of Sussex who has published two research reports looking into immigration advice in and the . Below is a very condensed summary of those two brilliant reports.

Immigration legal aid provision in England and Wales is relatively easy to count (retrospectively), because each provider has to report to the Legal Aid Agency the number of ‘matter starts’ it has opened. One person might have more than one matter start if, for example, the Home Office withdraws a refusal decision and makes a new one. But it is a useful starting point which, with the aid of Freedom of Information requests, enables us to see how much legal aid provision is going on by geographical area and (anonymously) by office. It is important, though, to look at the number of matter starts used in a year, not the number allocated, because only around half to two-thirds of the allocated matter starts are actually used in any given year, and this reflects a lack of provider capacity, not a lack of client demand.

Measuring legal need for immigration and asylum law

Trying to quantify legal need is more difficult, especially in an area of law like immigration and asylum where need is driven by both global events (conflicts, persecution, smuggling routes) and domestic legal rules (the asylum applications and appeals processes). Often need is hidden, either because of the lack of data or because the would-be clients themselves are hidden, living and working clandestinely because of the UK’s hostile environment or because they are in situations of modern slavery.

That means, as with other social welfare areas of law, we have to look at proxy indicators for need. Need for asylum representation is perhaps the easiest to estimate, since there are statistics for the number of people receiving asylum support, broken down by geographical area. Even this is a bit ‘slippery’, because the asylum support figures include dependants, not only main applicants. Usually only the main applicant or the entire household together would need legal representation. Nationally, we know there is roughly one dependant for every four main applicants so, as a rule of thumb, we can assume that roughly four-fifths of the total number of people in asylum support within any area need asylum representation. Some areas, though, accommodate mainly single adults or couples, while others accommodate mainly families, so the estimates could be refined with local knowledge for each area.

Another useful indicator of need is the number of unaccompanied children looked after by each local authority. Again, it is not a simple indicator because children may remain in care after their asylum application is resolved, or may move out of care before it is resolved. On top of this, there is legal need from non-UK nationals who are in the National Referral Mechanism for a decision on whether they are victims of trafficking. Some non-UK nationals in prisons may be eligible for legal aid and need representation.

Applicant deficits are increasing

Despite these difficulties, we can tell that there was a deficit of at least 6000 in England and Wales between asylum need and provision in 2020-21. There were 37,562 new asylum applications by main applicants (excluding dependants) in the year to September 2021. In the same year 27,317 matter starts were opened in total by all provider offices in England and Wales. Not all of these matter starts will have been for an asylum application or appeal; some will have been for an application for settlement at the end of the initial period of refugee leave, for example, which are also within the scope of legal aid. Even allowing for some asylum applicants to have accessed privately paying legal advice, then, there is a deficit of unknown size but it is at least 6,000.

This deficit is increasing across England and Wales. In 2021-22, provision increased slightly, to 32,714 matter starts in the contract year to 31 August 2022. Asylum applications increased significantly, to 63,089 applications by main applicants (relating to 75,181 people) in the UK in the year to June 2022. Approximately 5,000 people would have been accommodated in Scotland, which has a separate legal aid system (but asylum support statistics are unavailable at the time of writing), then England and Wales has a deficit of at least .

Several local authorities, support organisations, and firms themselves have reported that many legal aid providers are moving their capacity out of asylum work into public law or other areas of law because the work is not financially viable if done to an adequate standard. This includes some of the largest multi-office providers in the country.

Add to this that the Nationality and Borders Act 2022 creates several new types of work for immigration legal aid providers: up to seven hours’ work on a Priority Removal Notice, appeals to the Tribunal against an unfavourable age assessment, or work to rebut the presumption that a person should be treated as a ‘Group 2 refugee’, with fewer rights than other refugees. Given the existing capacity deficit, it is far from clear that providers are able to meet the new need.

Geographic areas most in need

There are also changes to the geographies of need. Since 2000, people seeking asylum in the UK have been ‘dispersed’ on a no choice basis to asylum accommodation in certain towns and cities which agreed to be dispersal areas. The Home Office is in the process of widening this dispersal to all parts of the country. It has also made mandatory the National Transfer Scheme for placing unaccompanied children in all local authorities. This is in many ways sensible, moving away from the concentration of unaccompanied children in overstretched authorities like Kent and Croydon. However, as an example, Welsh local authorities were directed to take in around 40 unaccompanied children between February and May 2022, many of which had never accommodated unaccompanied children before. There is no legal aid provision for asylum in most of Wales; it is heavily concentrated (though still limited) in the far south of Wales, with a single small provider in North East Wales.

Legal aid in England and Wales is organised as a market, since the Carter reforms of 2006-07. The idea of a market is that supply will increase to meet demand, so long as market conditions are satisfactory. I’ve discussed at length the reasons why market conditions for legal aid in immigration and asylum in England and Wales are not satisfactory. But even if they were satisfactory, without government intervention, the market would only follow demand, not pre-empt it. The first people placed in a new area would have to manage without representation or travel to find it, but asylum support payments are minimal and do not cover the costs of travel for legal representation. That means that the market is not able to meet either the current need nor the additional need created by the Nationality and Borders Act, without government intervention to address the shortfalls both nationally and regionally.