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Legal advice: key for recovery but access needs improvement

Legal advice needs to be placed at the centre of survivor support considerations, Dr Samantha Currie blogs.

Published: 25th May 2021

"It [legal advice] is priceless, isn’t it? It’s the difference between either living for years destitute and in the shadows, being returned somewhere and being in very real and present danger, or having status and being able to begin your life again after the trauma that you’ve been through…"

The above quote, from an immigration solicitor in Liverpool, highlights the importance of legal advice for people who survived modern slavery. This view was consistently shared with us during our research project analysing access to legal advice and representation in England for people with lived experience of modern slavery. We published our report last week.

We interviewed lawyers and support providers who work with people who survived modern slavery. They were clear that legal advice was crucial for survivors’ recovery and protection from being exploited again. They singled out securing survivors’ immigration status as particularly key for creating some stability for them to start to make progress towards recovery and accessing support.

This came through so strongly that one of our key recommendations is for all people who are recognised as victims of modern slavery to automatically be granted a minimum of one year leave to remain. At the moment, being confirmed a victim of modern slavery does not bring with it automatic security of immigration status and available evidence suggests that few are granted discretionary leave to remain.

In spite of the clear transformational impact of legal advice, our research found that survivors face major difficulties in accessing it.

One of the more important ones is that there aren’t enough legal aid lawyers who are ready and able to represent survivors. It’s not that they’re not keen, but taking their cases on is often not a financially viable option for them.

Immigration legal aid lawyers are paid standard fixed fees, as opposed to being paid on an hourly rate for work carried out on a case. These fees, which do not change to reflect the time needed to work on a case, are too low to cover the effort necessary on usually very complex cases involving modern slavery survivors.

While it is possible to charge for the actual time spent on cases if the work carried out exceeds a certain threshold –the so-called “escape fee” stands at three times the value of a fixed fee – relying on this is felt by lawyers to be too financially risky and so is nowhere near adequate to address the situation.

The result is that cases involving clients who experienced modern slavery are often not financially viable for lawyers to take on. Those who do may limit the time spent on the case, with obvious impact on the quality of the advice. Others work without receiving payment, in their own time, and at personal cost.

"A lot of us who practice legal aid have to make the choice of: am I going to do a shoddy job or am I going to do a proper job and donate some weekend time that I can’t bill for? At a certain point it does get unsustainable, you know, for people and for firms..."

Immigration solicitor from Manchester, who represents survivors of modern slavery.

This could be rectified by switching payments available to lawyers working on immigration cases, which involve survivors of modern slavery to an hourly-rate basis. It would ensure that lawyers could be paid appropriately for the work carried out, providing a much-needed boost to the sustainability of the system.

Our research also found that the entitlement of people with lived experience of modern slavery to legal aid comes too late for them, only after they have been referred into the National Referral Mechanism (NRM) - the decision-making framework for identifying victims of modern slavery – as potential victims. Our evidence shows that the referral itself can be very confusing and disheartening, and leave people not fully understanding what referring to this framework entails. To rectify that, we recommend that they should be entitled to legally aided advice before being referred into the NRM.

Our findings shed light on a problem that has real and significant consequences for people who experienced modern slavery, for their potential to receive security of status, support and stability. As it is so frequently a foundation to build recovery, access to independent legal advice should be placed at the centre of any future considerations about how best to support survivors.

The research involved a collaboration between researchers at the University of Liverpool’s School of Law and Social Justice, the Right’s Lab at the University of Nottingham, the Anti-Trafficking and Labour Exploitation Unit, and Lucy Mair, a Human Rights Barrister at Garden Court North Chambers.