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Guest post: “these amazing lawyers…”

Guest post: “these amazing lawyers…”

New research helps practitioners identify best practice in representing female asylum seekers writes Debora Singer MBE, Senior Policy Adviser at Asylum Aid.

What do women who have been through the asylum appeals process think of their legal representative?

I liked the last experience … everyone was so positive … we’re going to fight, we’re going to win, that kind of attitude.

You’ve not been prepared at all so you obviously know it’s not going to go well unless a miracle happens.

These voices are captured in Asylum Aid’s latest research, the first in the UK to examine women’s experiences of the asylum appeals process. Through her eyes: enabling women’s best evidence in UK asylum appeals was undertaken jointly by Asylum Aid and the National Centre for Social Research (NatCen).

Interestingly, the good practice identified by the women interviewed for the research strongly reflects that identified by legal representatives themselves, by judges and through case file analysis.

Preparing women asylum seekers for their appeal

Our interviews with 22 women showed that the good practice they identified focused particularly on legal representatives meeting them before  hearings. This enables them to:

  • understand the legal argument
  • be prepared for the hearing
  • think through the questions they may be asked at the hearing
  • contribute to their appeal statement and review it to ensure accuracy
  • be familiar with procedural elements of the court, court etiquette, and layout of the court room
  • visit to the hearing centre in advance

On the practical side, our research led us to recommend that having childcare available at hearing centres would prevent women finding themselves unable to disclose their experiences because of the presence of their children. In addition, asylum appellants would be less anxious if they had access to an online video guide similar to that provided by the Ministry of Justice for victims and witnesses attending criminal courts.

The women interviewed also stated that they would have liked the chance to speak directly to the judge. Some had experience of doing this but it is not always possible. It might be as much a case of the legal representative managing  expectations as anything else.

Women had concerns  when their legal representative appeared unprepared, unconfident, unclear, inaccurate, lacking understanding of the case, or didn’t make sufficient use of available evidence. Ironically women also told us that their anxiety increased if their legal representative just reassured them, saying that they would take care of everything.

I felt like I was on my own in there and everyone was against me.

On receiving the result of their appeal, if it was allowed, women found it helpful if their legal representative explained that the Home Office had a right to appeal and then contacted them when this time limit passed. If an appeal was upheld, it helped women if their legal representative submitted a fresh claim (if possible) or explained to them why they had to close their case.

Case preparation

The findings from interviewing five experienced legal representatives, four judges and analysing eight case files indicated that the quality of legal representation is a very important influencing factor on the outcome of women’s appeals.

While this may seem a statement of the obvious, preparation of an appeal case before the hearing was found to be critical. While thorough preparation of an appeal case could not assure a positive outcome, it was a key factor. Inadequate preparation could damage a case irreparably.

Key factors identified in successful women’s asylum appeals were lawyers who:

  • are well-prepared,
  • provide good quality legal advice including use of appropriate medical and country reports as evidence,
  • address issues of sufficiency of protection and internal relocation,
  • brief women appellants sufficiently, and
  • ensure time for appellants to meet barristers in advance.

The following steps in the preparation of successful appeals were identified from the file analysis and interviews:

  • establishing trust and facilitating disclosure. This requires interviewing skills that enable disclosure as well as ensuring confidential time with women where they can speak freely without the presence of family members, supporters or children. If a barrister will be representing an appellant, this also requires the legal representative to arrange a conference with her barrister in advance.  Consideration should also be given to providing female legal representatives to women clients.
  • working with the appellant to prepare her for the hearing and collect evidence. Factors contributing to an appeal being upheld were: involving the client in preparing for the hearing to produce a full statement, collecting evidence and testimony, preparing applicants for the type of questions they would be asked at the hearing and preparing them for cross-examination.
  • obtaining expert evidence. In cases where a woman had been through two appeals at the First-tier Tribunal, the introduction of expert evidence at the second appeal was seen to be relevant to its success the second time around. Having said this, legal representatives did feel that the standard of proof that required so much evidence was too high. It was recognised that legal representatives faced barriers with obtaining expert evidence, specifically in relation to funding, availability of experts and the time required.
  • challenging previous actions of the Home Office or other legal representatives that were damaging to the appeal case. If there was evidence of bad practice, for instance aggressive questioning by the Home Office following a disclosure of rape at an asylum interview, some representatives made a complaint.  This was to ensure that the judge was aware of problems that had affected the evidence given by the appellant.

In addition to preparation, legal representatives said that the skill of the advocate in the appeal hearing was critical in enabling the appellant to demonstrate her credibility.

Conclusion

He [the judge] doesn’t believe that I was, you know, being abused, I was going through domestic violence… I know what I went through and for him to just sit down there and say that, it wasn’t true. It really broke my heart.

And you lived that life and… they’re just reading through what it said and they didn’t live your life, so that’s really hard. That’s really harsh.

These amazing lawyers… which helped me win, and also see life in another way and not just on a negative side.

Hearing what women had to say about their experience of the asylum appeals process, as illustrated in the quotations above, made me very concerned about to the process they were going through. Its fairness seemed deeply in question as did whether it provided dignity for the women appellants.

It made me wonder how realistic it would be to advocate for improving the system. However, I was encouraged that our research did find evidence of good practice in some cases. In addition, as I analysed the results of the research, I became intrigued that the women seeking asylum, judges and legal representatives themselves all identified the same good practice for legal representatives. Given the consensus on good practice, extending it to all cases should be possible. This makes me optimistic.

Asylum Aid's recommendations

Taking into account all research evidence, we identified recommendations focusing on legal representatives, judges, Home Office Presenting Officers, the Tribunal Service and the Courts and Tribunals Judiciary. Below we provide the recommendations related to legal representatives.

Legal representatives should be trained to use good practice approaches, including obtaining all possible evidence to support the initial claim, to enhance the quality of legal representation for women asylum appellants. This should be put into practice in the following ways:

  • legal representatives should be encouraged to obtain all evidence possible to support the initial claim, including researching country specific evidence and commissioning a medical report and country expert’s report where relevant, with early use of legal aid to cover these disbursements;
  • a pre-hearing visit, arranged by a legal representative or support organisation, to introduce appellants to the tribunal setting, provide information about what to expect at the hearing and help them prepare emotionally and practically, would reduce women’s anxiety about attending the tribunal;
  • where a different advocate will appear at the hearing, the legal representative should set up a conference with the woman’s advocate in advance to enable the appellant to build up trust and share information;
  • legal representatives would benefit from undertaking training regarding gender-based cases and in the use of legal aid to support full preparation of women’s appeals.
Debora Singer

Debora Singer has worked at Asylum Aid, now part of Migrants Resource Centre, for more than a decade. Her work involves lobbying and campaigning on the rights of women seeking asylum, particularly through the Charter of Rights of Women Seeking Asylum. She is a co-author of Through her eyes: enabling women’s best evidence in UK asylum appeals, newly published by Asylum Aid and NatCen. In 2012 Debora was awarded an MBE for services to women seeking asylum.

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