Cristel Amiss and Emily Burnham
Capacity: Coordinators of Asylum From Rape Project at Women Against Rape
Date of Response: 21/2/24
Address: Women Against Rape, Crossroads Women’s Centre, London NW5 2DR

 Introduction

About Women Against Rape

Women Against Rape is a multi-racial, anti-rape, anti-racist, self-help organisation. Since 1976 we have been providing counselling, support, advice and information to women and girls who have been raped or sexually assaulted. Thousands of women have called on WAR’s help to deal with the law, police, Home Office, courts and medical procedures, re-housing, compensation and safety measures. Many of those we work with have only begun to speak about their ordeal for the first time with our assistance.

Our specialist services helping rape survivors seeking asylum

Founded to help all victims overcome often insurmountable barriers of stigma and discrimination to be able to seek protection and support, we started working with women asylum seekers in 1992.

In 1998 we helped establish the important “Ejon” precedent when the High Court accepted that WAR’s report confirmed that a traumatised victim was “unable” rather than “unwilling” to report rape earlier as ground for asylum (R v SSHD ex parte Ejon (QBD) [1998] INLR). We have pressed for recognition of the impact on traumatised victims so that the difficulties they face in recalling and reporting their experiences is taken into account. Where useful principles and guidance exist to assist victims, we press for their implementation. For example, the Home Office guidance “Gender Issues in the Asylum Claim” accepts that rape is a particularly difficult experience to report and recount, stating that “disclosure of gender-based violence at a later stage in the asylum process should not automatically count against their credibility. There may be a number of reasons why a claimant, or dependent, may be reluctant to disclose information”.

Recognition of our specialist expertise comes from the United Nations Voluntary Fund for Victims of Torture, among others. It has supported our work providing victims with “the means to recover”. Also we set a precedent with the Asylum Support Appeals Tribunal that women should not be dispersed away from WAR’s support unless a similar service was accessible in the place to where they were being sent. WAR was also one of a range of experts consulted by the National Institute for Clinical Excellence (NICE) in its working group on Post-Traumatic Stress Disorder. The information we provided helped establish the particular vulnerability of asylum seekers to Post Traumatic Stress Disorder, now recognised in the NICE guidelines issued to health services throughout the UK.

We work closely with the All African Women’s Group (AAWG) which is a self-help group of women seeking asylum based with us at the Crossroads Women Centre, London. Monthly meetings of their members, which we help co-ordinate, bring together over 60 women from different countries to support each other. The Home Office has acknowledged our “commendable work.” The Tribunal has relied on our written evidence and in one case described our letter as providing “compelling and exceptional reasons” to allow an appeal.

The evidence we give here includes the expertise from AAWG and we attach nine (anonymised) responses from individual women in AAWG as part of this submission.

Our response

We are responding to this review focusing on the area of asylum/immigration work. We want to briefly bring to your attention that Women Against Rape also works with women seeking compensation from the Criminal Injuries Compensation Authority. This system is discriminatory to women yet victims are denied legal aid to prepare and present their cases. When they do receive compensation, about one quarter of the award goes to pay the lawyers on the “no win, no fee basis”. The lack of legal aid undermines women trying to pursue justice for themselves.

WAR also does housing cases. There is a serious shortage of housing lawyers and many housing issues are no longer covered by legal aid. This prevents highly traumatised women from being able to seek safe and secure housing in a timely manner.

We are answering the following numbered questions from the Review in relation to our work with women seeking asylum in the UK.

2. What are the civil legal aid issues that are specific to your local area?

We are based in London and are contacted for help by women throughout the UK. We experience a crisis level lack of provision of legal aid solicitors. For women who are dispersed by NASS out of London, there are even fewer options.

Example: A woman who was dispersed to Worthing couldn’t find a lawyer in her area at all. After months of searching, she was forced to instruct a lawyer based in Birmingham who can only meet with her online. She is a rape victim and has reported to us that she is unable to speak about her experiences online to a male caseworker. (See below re remote provision).

5. What do you think are the possible downstream benefits of civil legal aid? The term ‘downstream benefits’ is used to describe the cost savings, other benefits to government and wider societal benefits when eligible individuals have access to legally aided advice and representation.

Most women we work with are severely traumatised by their experiences. Most are mothers, some with children in the UK and some with children they were forced to leave behind (or both).

In December 2021 we published a survey “Up from Destitution” about the destitution women asylum seekers and their children face while pursuing their claims. This often continues after they have status.

The asylum system establishes a hostile environment, creating a tortuous process that is impossible to navigate without legal representation. The extent of the complexity and the inbuilt tendency to refuse all claims makes it seem like a deliberate government policy to punish women for exercising their right to seek safety and protection. The lack of legal aid provision and the under-funding of legal aid is a fundamental aspect of this hostile environment as it enables racist, sexist and other discriminatory treatment by the Home Office by preventing women from challenging unfair practices and asserting their rights.

For one sector of people, particularly vulnerable people, to be denied effective access to justice is extremely harmful to those individuals but also corrosive to the society at large.

• Women who have good quality representation on legal aid win their cases sooner and win refugee status rather than a lesser form of leave. This has immense benefits to the woman and her children, whether in the UK or the country of origin. It promotes stability and alleviates stress which leads to improvements in women and children’s health, happiness and well-being. Women are more able to support their children which has long term benefits and make a significant and useful contribution to the society.
• Families can be reunited more quickly, reducing the devastating impact of separation. Where women were forced to flee leaving their children behind, these children often suffer greatly.

Children left behind and without the protection of their mothers who are forced to flee to save their life suffer enormously.

This suffering includes: a teenage daughter threatened with rape, children beaten and forced to drink their own urine as a punishment, children made homeless, children trafficked and forced into prostitution, young children forced to do heavy labour like moving stones to survive.

There is nothing worse for a mother than to hear how her children are suffering and not be able to protect them. Mothers’ health is destroyed by this sickening burden of worry and guilt with cost implications, including for the NHS. The long-term impact of this trauma is felt by the whole family and makes recovery a much longer and harder process.

• Mothers with children in the UK can rebuild their lives more quickly, not feeling so abused by the asylum system and years of destitution and homelessness. Living without status puts women at risk of serious violence from having to find housing and being dependent on others. This is especially true when asylum claims are refused due to poor legal representation compounded by the effects of trauma and women are left without NASS support while they try to find another lawyer to submit a fresh claim.

Case Study:

We have worked with Ms C since 2010. She originally claimed asylum on arrival from DRC in 2004, following her escape from prison and gang rape by soldiers. Her legal representation was inadequate, there was no evidence of the impact of rape and her claim was disbelieved and refused. Following this refusal, she was made homeless and suffered further abuse. It was many years before she could find a new lawyer to re-start her asylum case. The lawyer obtained an expert psychological report on legal aid. Ms C eventually won on Article 8 grounds in 2023 when the judges accepted her as credible. The twenty years since her arrival have scarred her and it will take many years before she can rebuild her confidence and start her life afresh. If she had had good legal representation, she would have won refugee status during her first claim.

 9.What barriers/obstacles do you think individuals encounter when attempting to access civil legal aid?

Shortage of lawyers

There is a crisis level shortage of legal aid providers for asylum seekers including in London. It is almost impossible for women who are making a first claim for asylum to find a legal aid lawyer. This was not the case even five years ago, although legal aid provision has been eroding gradually for many years.

Even when we help women understand and present their case in a succinct way and refer women to lawyers directly, we are told the firms don’t have capacity. One woman spent over a year finding a lawyer, even with our help. See an article she wrote after she had been searching for about six months. https://www.biduk.org/articles/we-ran-for-our-lives-now-the-home-office-has-the-power-of-life-or-death-over-us

At our monthly self-help meeting in September 2023, we carried did a survey with 30 women about legal aid representation. The results show:

• 51% didn’t have a legal aid lawyer.
• Of those that had legal representation, 42% were unhappy with their lawyer.
• 80% didn’t know the difference between a “pro bono” lawyer and a “legal aid lawyer”.
• The time it took to get a lawyer ranged from two months to five years.
• The main way that women found a lawyer was with the help of a charity, community group like ours or being referred by friends.
• None of the women got direct help to find a lawyer from the Home Office funded charity Migrant Help which refers people to the Law Society list.

Referral organisations

The organisations that receive funding to help asylum seekers obtain legal representation, the largest being Migrant Help, don’t help asylum seekers to get a lawyer. Migrant Help sends out lists of lawyers to those who ask, but recently this list has included: organisations that are not even registered for legal aid, organisations that no longer exist and firms/organisations as far away as Birmingham, for asylum seekers based in London. Even searching this far away doesn’t enable women to find a lawyer. After an intensive search with one woman we found that all referrals came down to a list of six firms and none had any capacity. This shows the extent of the shortage and that the issue cannot be solved by funding more referral organisations as people are just given the run around.

Impact of not having a legal aid lawyer where an asylum claim has been submitted

Almost all the of the women we work with are victims of rape including domestic violence and trafficking. They are traumatised by their experiences. Many are mothers with children in the UK, some with children abroad. The severe shortage of legal aid lawyers has a devastating effect on their asylum claims.

Case Study

Ms O is a victim of forced prostitution and severe domestic violence from Nigeria. She claimed asylum with her two daughters who faced a risk of FGM. She found a lawyer who said they would represent her “pro bono”. The lawyer didn’t explain that she would be entitled to legal aid for her case if she went to a registered firm and Ms O didn’t know about legal aid herself. The lawyer told her to write her own statement which Ms O attempted to do. The lawyer submitted this (in a handwritten version) to the Home Office without reading it. She didn’t provide any advice about what was needed to prove an asylum claim or speak to Ms O about what other evidence she had. When Ms O tried to contact her to ask about her case, the lawyer told her to wait for her asylum interview. When Ms O asked about obtaining medical evidence of her trauma, the lawyer didn’t reply. The Home Office invited her to an interview and al the lawyer did was briefly explain what would happen. But when we spoke to Ms O she disclosed for the first time the reasons why she was outcast from her family, that her family had forced her into prostitution and that she had attempted suicide several times as a result of the terrible suffering she had faced. WAR accompanied Ms O to the Home Office to ask to postpone the interview so that she could have time to prepare. We explained that we had been trying to find Ms O a legal aid lawyer for months, that we were concerned about her going ahead with the interview when she was clearly so traumatised and that she needed expert evidence to document her case. The Home Office agreed to postpone on that occasion but continued to set interview dates for Ms O despite her not being able to find a lawyer. This was extremely distressing for Ms O and her daughters who are desperate for their case to be resolved but terrified of being refused without the evidence they need to corroborate their accounts.

In the example above, WAR asked the Home Office for help in finding a lawyer and the interviewer just said: “I wish there was something we could do.” That is unacceptable. It is deeply unfair for the Home Office to knowingly be part of a justice system that denies victims the right to representation.

In the absence of lawyers, we have written to the Home Office to postpone interviews for several women we are helping on these grounds. The Home Office has agreed to postpone interviews but then has then repeatedly re-set interview dates. This indicates that the Home Office accepts that the logic of their policy requires women to have a legal aid lawyer. But again, the protection isn’t effective if they are hounding women again and again to have an interview despite still not having a lawyer. This has caused serious distress for the women and their children. Whilst postponing the interview is a necessary step to protect women’s rights and prevent them from unfair deportation, it leads to further devastating delay. This delay can only be ended once women have access to the legal aid lawyers they are entitled to.

Inadequate funding once a lawyer is found

Many victims find it very difficult to speak about their experiences.[1] Despite Home Office policy and case law that acknowledges this, delay in disclosure is used to disbelieve women and refuse them asylum.

Victims need to build a relationship of trust before they are able to speak about traumatic events. [2] This applies to building a relationship of trust with a lawyer. This takes time and a sympathetic environment which isn’t possible where the lawyer doesn’t have sufficient capacity and funding to work on the case. In our experience, disclosure happens gradually so that a victim may explain part of what she suffered but miss out the most shaming, stigmatised aspects. Lawyers who are pressed to write a statement quickly are not able to support ongoing disclosure and crucial, sometimes fundamental, aspects of the case are omitted from evidence.

Case Study

Ms M is a victim of trafficking and through her trafficking support worker was able to find a lawyer a few months after claiming asylum. She has a young child who has health problems and suffers with depression, severe anxiety and panic attacks when she speaks about her experiences. The lawyer worked with her to prepare her statement which explained she was forced to work as a prostitute before she was trafficked and this was how she was coerced to come to the UK. But we were shocked to see that the devastating harmful experience of multiple gang rapes, beatings and threats to her life during these years was summarised in one sentence in her statement without any of the details. This is crucial information about her risk of return that was missing from her statement because she had found it too painful to speak about it. With our input, this information was passed onto Ms M’s solicitor.

 Overall, the impact of inadequate funding is a lower standard of representation which means:

• There is no advance preparation – victims are told they must wait until their asylum interview is set before the lawyer will work on their statement.
• Statements are being done in such a short timescale that women are not given the time necessary to disclose particularly sensitive experiences which means that crucial information relevant to the asylum claim is omitted from their cases.
• Lawyers don’t attempt to apply for funding for an expert psychological assessment even when they are aware that the woman is severely traumatised and this is likely to undermine her ability to present her case at her Home Office interview. They don’t even attempt to obtain GP reports.
• Even where WAR notifies the lawyer that such a report is likely to be needed to document the impact of trauma on the woman’s ability to disclose her experiences or attend her interview, lawyers still frequently refuse to act.

Lack of funding for appeals

The largest provider in the country no longer represents clients at appeal stage because of the terrible under-funding and other problems in the legal aid system. This is a very serious aspect of the legal aid crisis with wide-ranging implications that are yet to be fully experienced.

Women we work with are routinely disbelieved and refused by the Home Office and this means that the appeal stage represents for many the first opportunity for justice in their cases. In particular at appeal stage, lawyers have been able to obtain expert reports that were often unavailable earlier due to restrictions on legal aid. But now, without a lawyer at appeal, women face their cases being refused yet again in a highly discriminatory manner and face the threat of deportation. This is a terrifying prospect.

10. What could be done to improve client choice such that it is easier for clients to find civil legal aid providers and make informed decisions about which one best meets their needs?

The supply of lawyers must be expanded. Quality must be ensured. Women are so desperate to find a legal aid lawyer that they have no choice of provider and must take whichever firm has capacity and whichever caseworker they are allocated.

This means that women whose asylum claims are based on repeated rape are frequently forced to have a male representative.

Case Study

Ms T is victim of repeated rape in her country of origin. After she claimed asylum on arrival she searched for a lawyer for several months. When a friend suggested a firm, she was grateful to be taken on although she was given a male caseworker. At the first appointment she told him she hadn’t been able to report her experiences to the Home Office at her screening interview. After getting our help she was able to disclose more crucial information about her case, including that she had been raped by a police officer when she tried to report the rape she had suffered from a close relative. She asked her lawyer for an appointment with a female caseworker to help her write a statement. This was refused on the grounds that there wasn’t a female caseworker with capacity and the firm then refused to represent her further on the grounds that by making a request they couldn’t meet she had triggered a “conflict of interest”. We are helping this woman submit a complaint.

Women we work with are receiving a lower standard of representation which we attribute to the shortage of providers meaning women are forced to instruct whichever firm has capacity and cannot change lawyers if the service they receive is inadequate. They fear to complain about their lawyer in case the firm refuses to act for them and they are left without any lawyer at all. Ms T’s case study above illustrates this point.

We believe this relates to the lack of funding so that lawyers are not able to get the funding they need to prepare cases effectively as we have discussed under Question 9.

11. Do you think that some people who are eligible for civil legal aid may not know that it is available and/or how to access it? If so, how do you suggest that this is addressed?

We understand that the Legal Aid Agency does not collect data about those who have been unable to access legal aid services. This is a serious ommission and must be remedied immediately. How else can any assessment be made of the extent and impact of the lack of legal aid representation? Jo Wilding reports that 40% of asylum seekers are denied a legal aid lawyer and that this figure is increasing. This crisis must be documented because otherwise we are denied the information about the extent of this injustice and hampered in our efforts to force the government to address it.

Victims of rape and other sexual violence by non-state actors can claim asylum and obtain legal aid. But we have found that many women don’t know this and there is no information provided by the government that informs them of this right.

 

Effect of exclusion of Article 8 Cases from Legal Aid

Case Study

Ms A  is a victim of serious domestic violence from Nigeria and is terrified to return. She is traumatised and was unable to speak about her experiences. She didn’t know what an asylum claim is. She asked for advice from immigration solicitors about seeking the right to stay in the UK. They told her they can make an application for leave to remain on a private basis. They didn’t ask her about why she came to the UK or whether she fears to return to Nigeria. Ms A was desperate and her uncle agreed to pay the legal fees. The application was turned down but the lawyers say that they will submit further representations to the Home Office if she pays more money. These wouldn’t prevent her removal but the solicitors didn’t tell Ms A this. The firm was closed down by the Solictors Regulatory Agency. Ms A found another lawyer who said they will write to the Home Office for her. Again she didn’t receive any advice about whether she is entitled to claim asylum. She was detained for removal. It was only when she was in detention that she read Legal Action for Women‘s Self Help Guide and found out she is entitled to apply for asylum.

 Ms A’s experience is common for women who come to the All African Women’s Group, where for the first time they are able to find out that what they have suffered can entitle them to claim asylum and therefore also legal aid to apply for status in the UK. Women faced unscrupulous private lawyers before LASPO was introduced, but the exclusion of Article 8 cases from legal aid promotes exploitative and corrupt practices by lawyers, placing women in degrading situations of long term dependency on others paying their legal fees where the advice they are paying for is not actually protecting them from deportation.

 

Lack of information and transparency about Legal Aid provision

• As we mention above, 80% of women we recently surveyed didn’t know the difference between a “pro bono” lawyer and a “legal aid lawyer”. This has serious implications because corrupt private lawyers take cases on supposedly “pro bono” but then do no work on the case. When the case is refused they can then demand money to submit an appeal and at this point the woman has no option to go elsewhere.
• It is very difficult to find out reliably whether a firm is registered for legal aid or not. The information on the Find a Solicitor directory is not kept up to date and/or relies on the firm reporting whether it takes legal aid work.
• When we called the SRA to find out if a firm was registered as this was unclear through the firm’s own complaints system, we were told that this could only be done if the woman lodged a complaint with the SRA against the firm.

12. How do you think that people receiving civil legal aid can be supported in cases where they have multiple or ‘clustered’ legal issues and some of these are outside of the scope of civil legal aid?

There should be a reversal of exclusion from scope where the issues are closely linked or an automatic grant of ECF. The rates for legal aid must be raised.

Here are two examples of where clustered legal issues present very serious problems for women.

1. Survivors have claimed asylum and also have children in the UK who are either British by birth or have lived seven years in the UK. The mothers can apply as primary carers of their children as an alternative to fighting for asylum. We find that in the past where victims had good lawyers, the lawyers apply for ECF so that all issues are covered in the case. But this is no longer true as even “good” firms are under so much pressure that they have stopped doing ECF work. Duncan Lewis, the largest provider in the country, is no longer able to take on cases based on ECF.
2. Survivors (and any children in the UK) face dispersal by NASS away from their sources of support upon which they depend for their mental wellbeing and potentially also from lawyers who they have built a good relationship with. The asylum lawyer cannot act regarding the NASS support which means that survivors are threatened with homelessness if they refuse to be dispersed. This is a devastating process which potentially high safeguarding risks and also undermines the fairness of the asylum procedure. Where dispersal is linked to a safeguarding risk, survivors must be able to access legal help for their claims against dispersal including representation at the asylum support appeal tribunal. Migrant Help used to assist asylum seekers to appeal to the Asylum Support Appeals Tribunal but stopped this service in about 2021. The only existing source of help that we know of is the Asylum Support Appeals Project (ASAP), a small NGO which often has no spare capacity.

Case Study

Ms A is a teenage victim of rape with a young baby, who came to the UK with her mother fleeing forced abortion and severe domestic violence. They were refused NASS support on the untrue basis that they had money in their country of origin. We tried to refer them for help from ASAP but they didn’t have capacity and the family had to represent themselves at the Asylum Support Appeals Tribunal with a letter from our organisation. The Judge overturned the NASS decision and found that they needed to remain in London so they could continue to access our support. Despite this finding, NASS issued them with repeated dispersal notices. They tried to get help from their immigration lawyer who refused on the basis that NASS issues were excluded from legal aid. They tried to get help from their member of parliament without success. NASS continued to threaten they would lose their support if they didn’t agree to be moved and the family were forced to accept accommodation out of London. They have since been unable to attend our self-help group, despite their serious ongoing vulnerabilities.

13. How do you think that the Exceptional Case Funding scheme is currently working, and are there any ways in which it could be improved?

Firms that used to help women apply for ECF are no longer able to do this because it’s too time consuming and they aren’t paid for it. Women are told to apply for ECF themselves and return to the firm once it is granted. This pushes the work onto support organisations like WAR which do not have the total expertise needed and don’t get funding for it. Women are therefore not able to fight their cases in the way that they should be entitled to. This is particularly unfair for family reunion cases – where women are granted the right to family reunion by the Refugee Convention but are unable to exercise this right because of the lack of lawyers willing to take on ECF cases.

Some NGOs are trying to fill the gap by helping women submit applications for family reunion without legal aid but all the cases for family reunion that we are aware of are too complex for this approach to be effective. For example, the child has turned 18 due to Home Office delay in decision-making or there is a need for detailed witness statements and other evidence to be gathered of the impact of separation on mother and child and this can only be done with legal aid. If the cases are refused, the NGO cannot assist on appeal but it is impossible to find a lawyer to take on a case at appeal on ECF.

16. What do you think are the barriers with regards to using technology, for both providers and users of civil legal aid?

16.2. Do you think there are any categories of law where the use of technology would be particularly challenging?

Remote provision isn’t suitable for women seeking asylum the overwhelming majority of whom are victims of rape or other sexual violence. It is essential for victims to build trust with their lawyers before they are able to speak about their experiences to the degree that is necessary for them to prepare their cases effectively.

Home Office policy recognises that victims may delay speaking about their experiences due to shame and stigma. This applies equally to speaking to lawyers, who may be the first person in authority to whom they are forced to report.

Research has highlighted that those seeking asylum ‘need time to process past traumatic events and to establish a sufficient level of trust and confidence to reveal the potentially painful and shaming details of their experiences’ and that the asylum and immigration process needs to be sensitive to this  - Bögner, D., Herlihy, J., & Brewin, C. (2007). Impact of sexual violence on disclosure during Home Office interviews. British Journal of Psychiatry, 191(1), 75-81

Summary

The crisis in legal aid and its impact on some of the most vulnerable members of our society is not being monitored by government agencies responsible for providing effective access to justice.

The results of the crisis, some of which we have described above, cause long term and serious damage to women and their children as well as to the wider society of which they are a part.

All of the women we work with are women of colour and racism must play a part in how they and their children’s lives are devalued.

[1] The applicant may be too traumatised to recall coherently the events that led to their flight, particularly if they are a survivor of torture or trafficing - 20 - http://pc.rhul.ac.uk/sites/csel/wp-content/uploads/2019/09/Bogner-Herlihy-Brewin-2007.pdf

[2] This has been documented in the Office of the Special Representative and Co-ordinator for Combating Trafficking in Human Beings ‘Report on Trafficking in Human Beings Amounting to Torture and other Forms of Ill Treatment’, which outlines that survivors are often only able to disclose (fully or partially) once a relationship of trust has been established as shame and stigma preclude ‘full revelation’. -  Office of the Special Representative and Co-ordinator for Combating Trafficking in Human Beings, Trafficking in Human Beings