With government cuts to legal aid and the many obstacles to obtaining good-quality, free legal advice, it is more important than ever that non-lawyers understand the asylum and immigration system, and people seeking right to remain understand their own case.
While there is no replacement for specialised legal advice, the reality is that more and more people seeking the right to remain in the UK are now forced to represent themselves. In this extreme situation, it has become essential for individuals applying for asylum or immigration status (or their supporters and communities) to have a better understanding of the system and provide legal support.
It is illegal for anyone not accredited with OISC/LSC (the regulatory bodies of immigration advice) to give immigration advice/legal advice as defined in section 82 v of the Immigration and Asylum Act 1999.
This blog post explains what legal advice is, and how communities and campaign groups can provide essential legal support (even when someone has a lawyer), but making sure they do not give legal advice.
What is legal advice?
Legal advice can be defined as the application of legal rules and principles to a specific set of facts.
→ Someone asks you if they should claim asylum.
→ You reply, based on your understanding of the law, that they shouldn’t because they’d probably be refused anyway.
→ This could be defined as giving legal advice.
Someone providing legal support, not legal advice, in this situation would explain that it is up to the individual, but provide information about how to claim asylum, and explain the process of how asylum claims are decided.
Advice from family and friends is generally not considered to be strictly legal advice, but this is because it is assumed they are not advising you on the basis of the law and are not attempting to give any formal advice, but are advising you in a personal capacity on the basis of what they think you should do as your friends. If you attempt to give a friend advice about what they should do in their case based on your understanding of the law, this could still be defined as giving legal advice.
The Immigration and Asylum Act 1999 definition includes immigration advice and services as those “provided in the course of business, whether or not done for profit. This includes occasional help offered to members of a community”. This means that community groups and campaign groups cannot give legal advice if they are not doing so as a regulated body.
What is legal information?
Legal advice is specific, direct, and proposes a course of action. Legal information is factual, generic, and does not address any one particular cause of action.
Providing legal information in the asylum and immigration context could be explaining how how the asylum and immigration system works, what the country guidance case on The Gambia is, or what an ‘injunction’ is. This is not providing legal advice.
Why you shouldn’t give legal advice if you are not a qualified adviser
1) it’s against the law
2) if you are not a full-time legal professional, it is very unlikely you will have the necessary up-to-date knowledge to provide the correct advice. Wrong advice is far worse than no advice.
And even if the advice you are giving does not fall into the category of ‘legal advice’, always remember that the person seeking the right to remain should be making all the decisions. Even if they ask for your advice, try not to be directive but instead give information about their options, the pros and cons of these options, and then support them in making the decision themselves.
Providing legal support
There are many things that community and campaign groups can do to provide legal support without giving legal advice.
- provide general legal information (you may find our Toolkit useful to do this)
- before somebody applies for asylum or immigration status, or while they are going through the process, sit down and go through the different stages and what can happen at each stage. You may want to use our Toolkit, the Rights of Women handbook, Seeking Refuge; the Bar Council guide to representing yourself in court; or your own personal/professional experience.
- research objective evidence on the country of origin or particular situation of the person you are supporting
- use your contacts to ask an expert to write a report to support the legal case
- help gather useful letters for the case – this might be from a school, Social Services, medical or mental health professionals, community support
- read someone’s reasons for refusal letter or court determination and pointing out which parts of their testimony that is being doubted;
- find other case law or guidelines that the document may refer to;
- find Still Human Still Here commentaries on Home Office Operational Guidance Notes that a reasons for refusal letter refers to
- explain the meaning of technical terms in legal documents
- type up what someone wants to say in response to a reasons for refusal letter, or other negative decision, especially if they find written English difficult
- help someone talk to their lawyer, if they are not comfortable doing this themselves
- help someone prepare for an asylum interview, or an asylum/immigration appeal. This may be by providing emotional support, practical information about where they have to go and how to get there, explaining the lay-out and personnel of the court, or listening to someone give their testimony so that the first time they do this is not in a hostile setting.