When the best lawyers are free

Sonia Lenegan of the ILPA talks to Syria Notes
4 MARCH 2021
    

Sonia Lenegan is legal director of the Immigration Law Practitioners’ Association. Founded in 1984, the majority of ILPA members are barristers, solicitors and advocates practising in all areas of immigration, asylum, and nationality law.

For Syria Notes, Clara Connolly talked to Sonia Lenegan about activist lawyers, army camps, and asylum rules after Brexit.

Clara Connolly is a retired immigration lawyer and a founder member of Syria Solidarity UK.

Clara Connolly:
You know immigration lawyers very well. What fires them up? What made them become immigration lawyers? It’s not exactly high-status?

Sonia Lenegan:
No, it’s not high status, or high pay, but immigration lawyers are extremely passionate about their work, and the work involves helping people. I don’t think anyone goes into immigration law if they don’t have that passion.

The Government doesn’t seem to have a very high opinion of immigration lawyers at the moment. They’re really getting on the Government’s nerves, aren’t they? They call them ‘activist lawyers.’ I’m proud to be an ‘activist lawyer,’ but what does the Government mean by that, and how is it affecting immigration lawyers?

What it boils down to is that the Government loses regularly in court, and they’re not very happy about it, so this ‘activist lawyers’ terminology has been targeted specifically at lawyers who help people to be removed from flights when the Home Office is trying to sent them away to another country.

And there’s been a great deal of success in the lawyers winning those cases because the Government has been trying to rush the process so much, they’ve been cutting corners and the courts are saying that you can’t safely remove these people, you need to pull them off the flight.

So, that is the background. It’s very unfortunate that the Government has chosen to target and endanger lawyers through the use of this dangerous rhetoric. All that those lawyers are doing is ensuring that the law is upheld. And that is it. There is nothing activist about it. I know a lot of people have embraced the term, and they see it as a positive thing. I do have concerns in the way that then makes lawyers a target by right wing extremists.

I can tell you that I’m aware that other lawyers have received threats since the rhetoric has been increased, and it is concerning, and it is unpleasant for people. We’ve seen individuals identified in the right wing press who have worked on these cases. All this creates a dangerous environment for lawyers.

How do you think that lawyers are coping with this? Is it making them cautious?

I know that around the time of August, where it was extremely bad, people were concerned, but I don’t think it prevented anyone from doing their job. It’s not as though this has ever been a popular job to do. So we are used to it. That doesn’t make it acceptable or something that we should have to tolerate.

Power to your elbow, obviously, in the face of government attack, as well as legal aid cuts. That leads me on to asking you, are lawyers free? Because this is something that certainly Syrian asylum seekers that we have heard of have not been aware of, and they have paid borrowed money, enormous amounts of money.

This is something I’m trying to encourage the Home Office to make clear in the materials that they provide to people who arrive and claim asylum—to make it clear that it is possible to access free lawyers. Here in the UK we have something called legal aid, which is where the Government provides funding that pays for lawyers to provide asylum assistance. That means that they will help with your asylum application.

It can be difficult to access, just because there are not enough lawyers doing the work to help all the people who need help, but this should absolutely be your first port of call, to try to find a legal aid lawyer.

There are financial requirements in order to access legal aid. So you couldn’t get it if you were very rich, for example, but the vast majority of people who do arrive in the UK and are claiming arrival asylum will be financially eligible, and that’s particularly the case if you are in receipt of housing and financial support from the Home Office—then you’re pretty much guaranteed to also be eligible for legal aid.

Well maybe you can address this kind of misconception that we find among asylum seekers, which is that you get much better lawyers if you pay for it?

Legal aid lawyers are certainly not a lower standard of lawyer—that is absolutely not the case.

In order to do legal aid asylum work, you have to have special additional qualifications over and above what you need to be a private asylum lawyer. You’re also subject to a lot of audits from the legal aid agency, who will check that the work has been done properly and carefully.

Well I always said, Sonia, to clients who contacted me, the best lawyers are free, actually. The most dedicated in my experience are the legal aid lawyers.

I think the vast majority of lawyers who do asylum work do it through legal aid, as far as I’m aware. I don’t know what the numbers are, but certainly that’s where the vast majority of expertise tends to lie, I think.

Syrian asylum seekers, whose cases I think are fairly straightforward at the moment at least, often proceed without a lawyer. But how do you think lawyers can help?

Well, Clara, you never know what is going to go wrong. For example, I’ve had Syrian clients previously where the Home Office refuses to accept that they are Syrian. So, if they decide to say that actually, you’re not Syrian, you’re from somewhere else, then things will go wrong, very, very quickly.

A good lawyer can help you with absolutely everything, and anything they can’t directly assist with, they can find another lawyer to help, hopefully. So it’s important to have a lawyer right from the very beginning of the process.

For example, if when you first claim asylum the Home Office decides that the UK does not need to decide your asylum claim, then you need a lawyer so they can advise you whether that decision can be challenged.

We’re also aware that the Home Office are taking people’s mobile phones away from them when they arrive, so lawyers can help with that. If you’re put in accommodation which is unsuitable, for example army barracks, then lawyers can help with that too.

It’s also important to have a lawyer to guide you through the asylum process. They will be able to identify which issues and experiences that you’ve had are most relevant to making an asylum claim. They will help you put your claim forward clearly, and also to help with providing a witness statement, which is often going to be quite important.

There are specific criteria that need to be met for an asylum claim and it’s important to get advice so that you understand what those are and whether your asylum claim is likely to be successful.

That’s really useful thank you. Let’s go into a little bit more detail about the asylum process now. So, first of all, how do asylum seekers get here?

Well, flying is not always an option, even before the pandemic, due to the difficulty in getting visas. Several years ago now, the Home Office shut down that route pretty much, refusing most Syrians’ applications for visitor visas. So instead people are travelling overland and through Europe, and they will then cross the channel, usually by lorries or by small boat.

So, are there any safe routes left, Sonia?

There is the resettlement scheme, but that was closed in March last year. The Home Office said it was closed due to the pandemic, however they continued to remove people from the UK during the same period, so it is extremely difficult to understand why they say they are unable to receive people.

So say they arrive then, they’ve come to the shore somehow or other, what do they do then? Say they have come on the very dangerous route of boats across the channel from France or other places in Europe, what happens when they arrive?

First of all, I think that they are given dry clothes and fed and given a bit of looking after, because that is an extremely unpleasant and dangerous journey. After that, they will have the initial screening interview in which they are asked about the basis on which they have come to the UK.

Last year, we saw people who arrived by boat that were being subject to an expedited process. The Home Office said that this was due to the pandemic, but they were not asking all of the screening interview questions. Things like, what was your journey to the UK? That’s a really important question, because some people are trafficked on their way to the UK.

Because those screening interview questions were not asked, the Home Office were unaware that they should have put that person into the trafficking process to try and identify whether or not they are a victim of trafficking, because then their case will be processed in a different way.

The Home Office was trying to send them back to Europe very, very quickly. That was last year, when the old laws were in place. The issue then was, when the people got into the removal centre, there are lawyers available there and they will give advice and see clients all day. And so that is the point where a person would see a lawyer, and the lawyer would then identify that they were trafficked.

That is where the legal challenges are generated in relation to the Home Office trying to remove people who actually do have valid grounds to have their case in the UK. Because the Home Office never asked the relevant questions, it never identified that that was what should have been happening with those people.

Other relevant considerations may not have been raised either, such as whether they have relatives in the UK?

Obviously it’s extremely relevant whether a person has family in the UK. So, I think there was story last year about some people being sent back to Spain, but actually they did have family in the UK? Under last year’s laws, they would have had the right to have their asylum claim considered in the UK.

Who are the people who get sent to these military camps? Who are the sections of asylum seekers who are sent there, and who gets sent to ordinary accommodation?

There is no method to the madness that I’ve been able to identify. It is single males so far, who are at Napier and Penally. People who arrived by boat have been put into the army barracks, but also people from the community have ended up in the barracks, so we don’t know. You could end up anywhere it seems. I think it did appear that it was in response to people arriving by boat, but there is a real lack of transparency.

Penally in particular is an extremely remote location. The nearest free legal aid lawyer is over an hour’s drive away. And that is just one way. And most of the legal aid lawyers are two hours drive away, so that is a four hours round trip for lawyers to go and see their clients.

The lawyers have been able to help some people get out of Penally. If a person is particularly vulnerable, it has been possible to get them moved out.

Not everybody ends up in a military camp, thank goodness. Can you describe what the ordinary way of claiming asylum is? Not being hauled up at the shore and being put into military camps—presumably there is still the going to the Home Office in person, and making an appointment, and so on. Could you describe that process?

So, for people who are already in the UK—who haven’t arrived by boat, basically. They would usually claim at the Home Office. There is a building in Croydon, which is the main place. They would need to telephone and just say that they would like to claim asylum, and they would be given an appointment to go to the Home Office building and have their screening interview.


So, what’s that like? Going along to the Home Office for the first time? This is in Croydon, which is a suburb of London.

It is an extremely grim building. So that is the first impression that you’ll get. You’ll be in a big queue and you’ll have to go through security and then you wait to be called for your screening interview. It is an intimidating process, but you just need to try to stay as calm as you can.

The person from the Home Office who’s interviewing will ask you to provide some personal details, including of your family, and they will ask some basic questions about your journey to the UK, and the reason that you have come here to claim asylum, and the basis of your asylum claim.

The Home Office will be asking questions relating to whether you’ve travelled through another country. And they will then decide whether they think you should have claimed asylum in any country that you have passed through. And they may then use that information to say that actually, your asylum claim cannot be considered in the UK.

My advice to asylum seekers at that initial intake interview at least was always to say as little as possible. As little as you can get away with. but don’t say very much about your asylum claim because that can be used against you afterwards. ‘Oh, you said this. Now you’re saying this.’ It’s usually people haven’t seen an asylum lawyer by that stage, have they, so they’re kind on their own, really? So, say as little as possible, I would say. Would you agree, Sonia?

I’m not giving legal advice in this.

I feel fairly free to say this, now that I’m retired. Okay, so anyway. Then if you don’t have anywhere to live and you don’t have any money to find accommodation with, then what happens?

You need to tell the Home Office that you need support, and if they approve your application then well, they will give you emergency support while your application is being considered, and then if that is approved they will give you somewhere to live, so provide housing. That could be in a flat, a house, more likely a hostel, or the army barracks as we’ve just discussed. They will send you absolutely anywhere, so you could end up in quite a remote area in the UK and again you’re back having issues then with where is your nearest lawyer.

They will give you cash support which is currently £37.75 for each person in your household, per week. They put that onto a bank card a debit card so you can use this to actually get out cash. The money is intended for things like food, clothing and toiletries—the essentials.

The procedure as I’ve known it is that you are dispersed. You are never housed in London. The reason given is that housing in London is expensive. They use the private system, not local authority housing but private accommodation. Can you say a little bit about the private accommodation providers? Are they accountable?

They have contractual requirements with the Home Office, but we don’t know what is in those contracts, so it’s difficult to say whether or not they’re being complied with. It is concerning that this is being done by private companies, because obviously their motivation is profit.

Just to be a little bit more positive, it is true that in the centres where people are dispersed to, you can find members of your own community. Say in Leeds there are a lot of Syrians, or in Manchester. On the whole people rely on finding members of their own community, don’t they, for support?

And also charities. There are a lot of grassroots charities in areas where asylum seekers are accommodated. Wherever you end up, just reach out and find out what local charities there are, as they are often a good first port of call and they can try and help you with other things such as trying to find a lawyer.

How do you find a lawyer?

There are a number of different options. The Home Office will give you the details of an organisation called Migrant Help. They have a contract with the Home Office to provide support to asylum seekers in asylum accommodation. However, they are not always very helpful. Do try them in case they can help, but don’t only try them.

You should also try and find a lawyer yourself. Any charity who you encounter who is offering assistance, ask if they can help you find a lawyer.

You can also Google ‘find a legal aid lawyer’ and then a link will come up, which is find-legal-advice.justice.gov.uk —If you then put in the postcode or the name of town where you are, and you tick the box saying immigration and asylum, it will give you a list of free lawyers. Then you need to phone each of them and ask if they can help. If they say no, ask if you could wait and if you waited, how long would it take until they might be able to help you?

If you have a law centre near you, then you should definitely try there. It can be difficult to navigate this initial stage if you don’t speak English, so if possible, try and find someone who speaks English and is willing to help you with getting that first appointment. After a lawyer takes your case on, they can then arrange for a free interpreter.

The next stage is going to be your asylum interview. And hopefully you’ll have a lawyer to help you to prepare for that. What will you expect to be asked about at your asylum interview?

Once you get the invitation offer from the Home Office, then I would recommend that you sit down and you write out your story in advance. So, you write down your life story basically, but especially and including what happened in your home country that mean that you needed to leave.

In particular do try to remember the dates when events happened. It’s best to think about this in advance, rather than to remember on the spot when the Home Office asks you. They absolutely will ask, so it’s good to have done that much preparation, so you have those dates in mind. But if you can’t remember precise dates, then you must just say this to the Home Office, rather than trying to guess.

The asylum interview itself will take place either in person or via video. If you are told that your interview will be via video, but you are not comfortable with that, then you can say to the Home Office that you want to have your interview in person. However, this may mean delays in getting your interview.

At the interview, the Home Office will ask you many questions about your journey to the UK—more detailed than what they’ve asked you previously at your screening interview. They will also ask you questions to test your knowledge of your home country. This is to check that you are from where you say you’re from. That will be things like, what does the flag look like, what currency is used, what are the local radio stations? And they will ask about the events leading up to you having to flee the country.

If you need one, there will be an interpreter there, but you need to have told the Home Office beforehand that you need an interpreter, and what language. It’s extremely important that you check that the interpreter speaks the same language as you, and if you have any concerns about that then you should notify the Home Office immediately.

The interview can take a very long time. It is not unusual for it to take several hours, so you need to really be aware of that before you go. If you need a break, then all you need to do is to ask the interviewer for one. Particularly if you are finding it very difficult to talk about what has happened to you, then do just ask for a break.

The Home Office interview, are they really trying to catch you out? Or is the Home Office interviewing technique sympathetic?

It really does vary. Some are good, some are bad. There’s no way that you know before you go in, who you are going to get.

After the interview you get given a copy of your interview record and so it is really, really important to go through that interview record and make sure that the answers you gave have been recorded, and if you’ve said anything that is incorrect, then you need to contact the Home Office as soon as possible after the interview and tell them, and just say oh, I gave that answer, that was incorrect. I didn’t understand the question. Just explain why you gave the wrong answer. It is important that you check that interview record because that is what will be used to make the decision on your case.

I just imagine myself, who’s not an asylum seeker, and somebody says, was it in August or July 2020 that you say that this happened? It’s impossible.

It’s impossible. That’s why I say to go and write everything down beforehand, because then if you can’t think of something then maybe you can go and check—check your email, or your texts or something. I never remember the dates for anything. I can barely remember what I did last week.

And still more if you were traumatised?

Exactly. It is extremely difficult. That’s why I said, if you don’t remember a date, don’t guess, because if you’re guessing you might guess wrongly the next time they ask you. If you don’t remember something, just say you don’t remember. Even better, double check beforehand and get everything straight in your mind about what has happened when.

At the end your asylum interview, if they have not given you a copy of your interview record, then you have to ask for it. This is extremely important.

So, you’ve done your asylum interview—phew, that’s over—it might have taken eight hours I’ve heard in some cases, but it’s over. So, then how long are you going to have to wait for the outcome?

There is absolutely no firm answer to this. It could very easily be a year, or more, or it could be a matter of weeks. And there is no way to predict which cases will be delayed. So, for example, even though Syrian cases are generally straightforward, I’ve heard of them being delayed with lengthy delays.

That can be a particularly awful problem, where say, one of the family members has come and is waiting for their asylum claim to be heard so they can rescue the rest of their family who are still in danger in Syria. So, is there any way at all you can speed up the decision letter?

The situation you’ve just described, that is something that you definitely need a lawyer for. It can be possible to challenge the delay in decision making through a process called judicial review. But it is not straightforward.

Okay. So, the letter pops through the letterbox, the decision letter. I guess if it’s short then it’s good news. So, yes, supposing you’ve won asylum, then what happens?

So, if you’re granted refugee status after the Home Office interview, then that means you have been formally recognised as a refugee and the UK will grant you five years leave to remain. After those five years, you can apply for indefinite leave to remain as the law currently is, and after that, British citizenship. So, you’ll be able to work, you’ll be able to access benefits, and you’ll also be able to bring your family over to join you.

Getting family to the UK can be difficult. Will lawyers help with that, for free?

Well, I’ve explained the difficulty in accessing a free lawyer, as a person who is seeking asylum. Unfortunately, it’s even more difficult to access a free lawyer for refugee family reunion applications. It is by no means impossible, but legal aid funding is not automatically available for refugee family reunion cases.

There is a first step where you need to get what is called exceptional case funding from the legal aid agency. There are charities out there that help people with getting that exceptional case funding, so you need to find one of those to help you with that, and then you need to find a lawyer, but again there are fewer lawyers who do refugee family reunion, so it is difficult.

If you already have a lawyer, and have had a lawyer throughout your asylum claim, then hopefully they will be able to help you with this, and they can help with the exceptional case funding application, as well. It’s a lot more difficult if you don’t already have a lawyer.

Okay, so if you’ve won asylum, you can apply for a UN travel document because you’ve given up your passport of your home country. Hopefully you can work, you can study and your life is on a good path. But what happens if the decision is negative? ‘No, we didn’t believe you. No, we’re refusing you.’ Then what happens?

If you don’t already have a lawyer—get one. Because you will probably need to appeal that decision. And you really do want a lawyer for this process. If you don’t have a lawyer, then you need to find one, very urgently.

So the appeal will be submitted and then there’s some back and forth with the Home Office and your lawyer, or you if you’re doing the appeal yourself. The Home Office will review the decision. You can provide them with more information and try to get them to withdraw the decision.

That is pretty unlikely that they will do that, and so, what will happen then is the tribunal will help both you and the Home Office to prepare the case and you will then be given a hearing date for the appeal to be heard. The preparation includes things like witness statements.

Then, when you have your hearing date, you all go along to the tribunal and a judge will hear all of the evidence. You won’t always know on the day what the outcome of your appeal is. And I wouldn’t suggest trying to guess, because you can have some very frowny judges who you have convinced that you have lost the case, and then the appeal is actually allowed. For the most part, those decisions come out relatively quickly. Within about a month or so.

It is scary, giving evidence, but a judge—however frowny—is more likely to listen, in my experience, than the Home Office. You have a better chance at appeal, really.

And you’ll have your lawyer there, if you have one. It’s still a really scary experience, and as with going to the Home Office, it’s not the cheeriest place, going to the tribunal where the appeals are heard. But there is a fairly good success rate for people overturning Home Office decisions at appeal stage.

You were saying that this year, the situation has changed. I think that might be related to a little thing called B for Brexit, to the UK leaving the European Union. So maybe you could help us to understand how the situation has changed?

I would love to know what the Home Office’s plans are. They have published new rules relating to asylum which say that they can deem an asylum claim inadmissible if a person has a connection to another country, and those rules also say they can remove that person to yet another country.

So for example, if you come from Syria and you have family in Bulgaria, because that is where they ended up when they fled Syria, presumably the Home Office could consider that that is a connection to Bulgaria, but then if they paid, say, Nigeria to take you, then they could say that your asylum claim is inadmissible because of your cousin in Bulgaria, and Nigeria have agreed to take you, so we’re going to send you there.

That is the law as it is written, that appears to be what they could do. It seems that the intention is that these new rules will be used in the same way the EU’s Dublin regulations were, but they are so broadly drafted that it could have some very scary consequences, as in the example I just gave.

Maybe we need to explain that when the UK was part of the European Union, it could send asylum seekers back to the countries that they passed through in Europe. But Europe is not all that keen now to take anyone back, so the Government have had to kind of invent this new rule to substitute for the EU rules.

But Sonia, you and I are lawyers, we know that that is really going nowhere. First of all, another government, another country has to agree to take you?

It is unworkable. They don’t have these big agreements with countries in place, and so it seems for each person who they think their asylum claim is inadmissible, they would need to try and get agreement for another country to accept them. That would be a huge amount of time, and they already have more work than they can handle.

I’m concerned about the delay that this will cause to the asylum claim, because they’re saying, ‘alright, your asylum claim is inadmissible while are we search for this mythical place that will take you back.’

These new rules build in an additional six month delay at the beginning of the case, so they can spend up to six months at the beginning of the claim to decide whether or not the asylum claim is admissible or not. During this six month period, there will be some form of asylum support provided.

Okay, so you’re not going to be on the streets. You might be an army barracks?

Yes, that’s one of the potential things. Are these accommodation centres being set up in anticipation of using these inadmissibility rules more widely?

We are a signatory to the refugee convention, however what the UK is trying to do with these inadmissibility rules, is to circumvent their obligations under the refugee convention by saying that it is inadmissible, so it is not a direct breach as far as they are concerned. This seems to be their position, that it’s not a breach, but rather it is avoidance.

That’s an extremely depressing picture that you’re painting. Let’s hope that not only will there be ‘activist lawyers’ flourishing, but also that asylum seekers will be able to form support groups and advocacy groups of their own.

The one thing in particular that I would say is that we have a strong sector in the UK of organisations and charities working to help people seeking asylum, and we are united and we are going to work as hard as we can to push back on any changes that adversely affect refugees.

There is a lot that we can do, particularly in relation to lawyers bringing challenges to any of these things that the Home Office are seeking to do. That’s what lawyers have been doing forever and that’s what they are going to keep doing. We’ll keep fighting and we’ll keep winning some and losing some and the Government will likely keep slagging lawyers off in the media.

I know that ILPA will be at the centre of supporting immigration lawyers in their battles, so I wish you all the luck in the world Sonia.

Thanks, Clara. There’s a lot more like me out there, so, we’re on your side, definitely. Thanks for having me. I’m going to get back to my court of appeal consultation response now, because that’s due on Monday.



First published online 4 March 2021.
Images:
  1. Hatton Cross Tribunal Hearing Centre. Painting based on a video by HM Courts and Tribunal Service.
  2. Immigration and asylum offices at Lunar House, Croydon. Painting based on Google Street View images.
This interview was conducted on 8 January 2021, and has been edited for length.
Audio recording by M. Yafa. Transcription by Zoë Ranson. Illustrations by Kellie Strom.