Are Asylum Seekers Entitled to Legal Aid
Without legal assistance, asylum seekers face an uphill battle. Of those who are not represented, only 1 in 10 claimants are successful. In contrast, people represented by a lawyer are at least three times more likely to have their claims approved. In addition to children eligible for legal aid in any of the above categories, children in care and children in custody with immigration or citizenship issues are also eligible for legal aid. This change was originally made in July 2018 (where separated children could benefit from legal aid through the exceptional cases funding system), but changes to the law were made later in October 2019. The legislative changes mean, inter alia, that separated children can now benefit from legal aid for advice and representation on nationality law and the EU comparison system. Some legal aid providers are still not aware of this change. The Legal Aid Agency released an update for providers in October 2019, which is available here. For more information, see our article on this change here.
The interview is important because UK Visas and Immigration uses the information you give to make their decision about your application. The information in your selection can be compared to what you say at the asylum hearing. In 2014, the government abolished state-funded legal aid for asylum seekers who come to Australia without a valid visa, with the exception of highly vulnerable people. Although the Convention relating to the Status of Refugees and its 1967 Protocol do not establish procedures for determining refugee status, fair and effective asylum procedures are essential to give full effect to the Convention relating to the Status of Refugees. Therefore, the Office of the United Nations High Commissioner for Refugees (UNHCR) recommends that countries that are signatories to the Convention relating to the Status of Refugees offer free legal advice and representation at all stages of the asylum procedure, including at first instance and in appeal proceedings. In the UK, eligible asylum seekers are entitled to government-funded legal assistance when applying for a protection visa (under Schedule 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 or LAPSO). Factors such as the person`s financial situation and chances of success are assessed to determine eligibility for legal aid. Unlike Australia, legal aid is available for appeal proceedings, except in immigration cases where the same or substantially the same issue has been subject to unfavourable judicial review or appeal result in the past 12 months. In February 2019, the UK Department of Justice published its post-implementation review of LAPSO. Prior to LASPO, there was advice and support for asylum issues in the application phase, including issues relating to humanitarian protection and Article 3 of the ECHR (prohibition of torture and inhuman treatment), as well as the Convention relating to the Status of Refugees. The LASPO was amended by the Modern Slavery Act 2015 to extend the scope to legal aid for applications to enter or reside in the UK where the person is a victim of slavery, serfdom or forced or compulsory labour, or where there are reasonable grounds to believe that the person is such a victim. Since 2011, cuts to legal aid have resulted in the closure of two major legal aid providers for asylum seekers, the Refugee and Migrant Justice and Immigration Advisory Service, which went into administration after funding cuts.
The location of the case also affects asylum seekers` access to legal representation. According to a study by the American Immigration Council, asylum seekers whose hearings were held in small towns had significantly lower rates of legal representation than those in large cities. Asylum seekers must prove their case before a judge of the Executive Office for Immigration Review and against a U.S. judge. Government Immigration and Customs Lawyer (ICE). Without a penniless immigrant legal representation program in the system, asylum seekers must represent themselves, unless they can afford to pay for a lawyer or have access to pro bono resources. Access to legal assistance through the IAAAS is available to unaccompanied minors in the first phase of the application and deserves review (review of the decision by the Ministry). The IAAAS is not accessible to anyone during the merits review. The IAAAS is not available for judicial review (judicial challenge to administrative decisions) or ministerial intervention. If you have little or no money, you may be entitled to free legal advice to help you with your asylum claim.
This is called legal aid. A list of areas of law for which legal aid is available is provided by the Law Society here. After pre-selection, you will receive an application registration card stating that you have applied for asylum. Obtaining legal advice is difficult for detained asylum seekers because communication and meetings are difficult to arrange and they cannot work to pay their legal fees. Free legal services are limited. A 2015 report from the University of Pennsylvania found that pro bono lawyers made up only 7 percent of all attorneys in immigration courts. The glaring lack of pro bono lawyers prevents asylum seekers with lower socio-economic status from accessing legal services. Asylum seekers who come to Australia on a valid visa Asylum seekers also face language barriers when moving through the justice system. Although the government employs interpreters, access to translations for less common Indigenous languages remains a challenge. In 2017, 75% of immigration cases were in Spanish, but indigenous languages are on the rise. Until 2018, Indigenous Mayan languages were among the top 15 languages in immigration courts.
The limited availability of Interpreters in Indigenous languages raises concerns about due process, including the postponement of cases. There are also differences within the asylum system between countries of origin. Applicants from countries such as Mexico, Honduras and El Salvador have much lower asylum acceptance rates than those from other countries. Mexico had the lowest acceptance rate of asylum claims of any country, with 88% of all applications rejected in 2017. In comparison, only 20% of Chinese applicants were rejected. You will then have an interview with your clerk to explain why you are applying for asylum. Your lawyer may be able to prepare your case and represent you. There is another form of free legal aid that you may be entitled to, called controlled legal representation. Your lawyer will explain this to you and tell you how much they will charge you if you can`t get free advice.
Mutual legal assistance helps to ensure that applications are made consistently in accordance with evidentiary and legal requirements, thereby reducing the burden on decision-makers and the courts. Reduced funding for mutual legal assistance affects the quality, cost-effectiveness and efficiency of the asylum process and could undermine public confidence in the fairness of Australian asylum procedures. The lack of access to legal aid means that asylum seekers are at greater risk of being returned to their country of origin, where they are persecuted, which would constitute a violation by Australia of its international legal obligations. Your lawyer will explain this and what they can do for you in legal aid. If they don`t have a legal aid contract, they should refer you to a company that does. While there are hundreds of legal aid organizations to serve asylum seekers, ad hoc representation by non-profit organizations presents many challenges. These organizations are underseeded without meeting capacity, the demands of a growing number of requests and a growing order book. Most asylum seekers who come to Australia on a valid visa must try to access pro bono legal assistance (there are extremely limited pro bono legal services) or pay to have access to a migration agent or lawyer. As of April 2013, as a result of amendments to the Legal Aid, Conviction and Punishment of Offenders Act, 2012, a number of areas of the law are no longer eligible for legal aid, including most immigration cases.
This means that applications based on family or private life, applications for citizenship and applications for statelessness are not covered by legal aid. You can bring a lawyer to this interview, although there is usually no legal aid for this.