Asylum Seekers Denied Justice Due To Crisis In Legal Aid Mechanism

By Heval Hylan
Secretary- New Zealand Refugee Council

1. INTRODUCTION

Refugees are, by circumstance, poor and disadvantaged; if their applications fail, the price they pay may be without exaggeration loss of liberty or life. They should have the best advice and representation possible. [1] Legal aid is essential to protect the most vulnerable, ensure access to fairness & justice and benefit the decision making process. Good legal representation can be the difference between life and death for an asylum seeker. Free legal aid is 'available' to asylum seekers in New Zealand through the LAS to assist at some stages of the asylum process.

2. LEGAL AID SERVICE

The Legal Service Agency ("LSA") is an office established to provide confidential and independent legal services to persons applying for asylum in New Zealand.. However, the Legal Services Act 2000 governs grants of legal aid.

3. MEANS TEST

To qualify for legal aid, you must be an asylum seeker, your income, less certain allowances, and you must pay a minimum contribution of $50.00 contribution. People who are only receiving social welfare payments will generally be eligible for legal services at the minimum contribution.

4. THE CURRENT CRISIS

Evidence from hundreds of lawyers, organisations and individuals all over NZ have shown detrimental impacts of the policy changes on vulnerable people. Many asylum seekers are now unable to access adequate legal representation including women, torture victims, and those with serious health problems.

The adoption of a negative attitude to the grant of legal aid grant or refusal of legal aid on the basis of the "likely" outcome of the case is inherently problematical would be difficult to understand. There are limits to the degree to which the outcome of one case can inform the likely result of another. Human rights conditions in most countries of origin are in a state of instability.

5. ASYLUM SEEKERS ARE NOT ALLOWED TO WORK

Asylum seekers without a work permit (which is difficult to obtain) are not allowed to work, yet many are being asked to pay large amounts of money for advice and representation, placing them in a desperate situation and in some cases driving people to work illegally. Asylum seekers who are badly represented or cannot find publicly funded legal representation are facing removal from NZ without key facts in their cases being considered by the NZIS and other independent authorities, placing them at risk of persecution and even death.

6. LAWYERS ARE CEASING TO CARRY OUT LEGALY AIDED CASES

Legal firms are ceasing to carry out publicly funded work, or significantly reducing the number of cases undertaken. High quality experienced practitioners are leaving the field of asylum and immigration work altogether, often because the current legal aid policy make it impossible to carry out the standard of work required in the time allowed.

The statute legal aid from the first level hearing before the RSB has shriveld. The LSA 'may' grant 16 hours for an RSB case, yet the cases are sometimes taking more than 30 hours. [2] And the standard grant of legal aid for refugee appeals is also reduced dramatically.

What is of significance is that under the current policy, refugee claimants have experienced enormous difficulties in the legal aid area. Furthermore, access to legal aid solicitors in New Zealand is a lottery with three in four saying they are in an "advice desert" Today we have a picture of a country peppered with legal aid "no go areas"

7. DIFFICULTIES CAUSED BY CURRENT LEGAL AID POLICY

The voluntary sector cannot absorb the consequences of the Legal Aid Policy changes. Non-profit suppliers of legal advice and representation report impossible levels of demand. Citizen Advice Bureaux ("CAB"), the New Zealand Refugee Council ("NZRC"), and refugee lawyers report an increase in desperate cases and community organisations are being diverted from their core work by spending many hours trying to refer clients to competent legal advice. Another problem arises from the fact only leading legal aid providers are paid for RSAA hearing attendance while secondary providers are paid nothing for attending the RSAA hearing until such time as they qualified to be leading provider.

8. NO LEGAL AID FOR APPEAL TO THE REMOVAL REVIEW AUTHORITY ("RRA")

Legal aid for RRA appeals a further threat to justice for asylum seekers. The government has not carried out any assessment of the impact of the policy changes even though further restrictions on refugee legal aid have lately been quashed by the present policies a departure from the spirit and the purpose for which legal aid was originally introduced. For appeals against the decisions of the RSAA the refugee claimant has to pay a $700.00 application fee to the RRA plus representative costs, which is likely to exacerbate the problems faced by asylum seekers. Unless an Appeal is lodged an asylum seeker can only await a removal order then deportation from the country. There seems to be no recognition of the desperate situation facing people in this dilemma.

9. ACTION FOR TODAY (For Government and the LSA)

(a) conduct a thorough, independent, national impact assessment of the legal aid cuts and review of the demand for and provision of quality assured legal services for asylum seekers;

(b) bring forward legislation guaranteeing all asylum applicants and appellants access to quality assured specialist legal advice and representation;

(c) establish an accurate, on-line, signposting service designed and resourced to provide up-to-date information about spare legal service capacity;

(d) remove cost and/or time 'thresholds' designed to limit the amount of work permissible under the contract without prior legal aid authorisation, e.g. a maximum of 5 hours for initial appeal hearing, or writing submissions;

(e) relieve the bureaucratic restrictions on legal practitioners and provide greater financial incentives to encourage new suppliers in both the private and not-for-profit sectors;

(f) provide the necessary funding to build the capacity within the asylum seekers legal sector to recruit and train new legal representatives; and

(g) rectify the miscalculation and reduction of funding for attendance and representation in the refugee claimant process RSB & RSAA that has created a conflict choice between the need of the desperate asylum seekers and the negative attitude of LSA.

10. QUESTIONS FOR LEGAL AID WORKSHOP GROUP

Anumber of questions may arise in today's Legal Aid Workshop such as: (1) How to ensure and to control the quality of legal aid? How to organize the legal aid system in an asylum seekers-centered way? (2) Who should make decisions on legal aid policy and management and what should be the role of the state in the legal aid system? (3) What are the potential pros and cons of particular legal aid models, and how to assess which model is best suited in a given setting?

These are only some of the issues to discuss at the workshop sessions in detail. We are fully aware that today's Forum could not realistically provide final answers to these questions indeed there are no universal or straightforward answers. However, one theme common to all represented systems is the struggle to maintain a reasonable balance between access, quality, and cost.

11. CONCLUSION

As an executive of NZRC, I am glad to say that we have set out in our partnership with NZIS and Auckland District Law Society ("ADLS") ambitious strategies to build blocks towards our mutual long-term goal of a safer and stronger asylum seeker procedures, and confident refugee communities. We are also striving to have justice provided for all including effective legal aid services.

The justice system, and every individual and institution involved in it has a key role in delivering on this commitment. An effective, efficient and fair public justice service is absolutely vital for creating that stronger, safer legal aid structure. And we are equally clear that our legal aid system needs to be based on firm principles of fairness and equality.  [3] Where there is widespread cynicism about the ability of the current legal system to deliver fair and prompt solutions to everyday problems, we have to make changes where they are needed. Changes that will ensure our legal aid system, (particularly civil):

(a) is effective and efficient in handling the ever growing volume of asylum seekers;

(b) is accessible and user-friendly for those who have to use the system;

(c) is fair where it most needs to be fair - fair for the vulnerable, fair for ordinary, honest, hardworking people, fair for refugee communities trying to fight their way out of deprivation;

(d) is relevant to New Zealand society in the 21st century; but

(e) above all inspires asylum seekers confidence and a sense of ownership.

We also know these are ambitious goals. Ambitious because of the scale of change that they imply. Radical and comprehensive reform is needed. The change and improvement we envisage cannot be achieved without the sustained and committed effort of all involved. All of us have a responsibility for improving the effectiveness and fairness of our justice system and making it work for the people who need it.

1. Stefanie Grant, "Refugees and Rhetoric" (1991) 141 New Law Journal 961, 962.
2. See Section 7(1)(k) Legal Services Act 2000. 
3. See Article 7 of the Universal Declaration of Human Rights.