Who will offer early-stage legal help to people seeking asylum in future, speedier process? It might not be lawyers

What’s the “extent of individual legal advice” offered to people seeking asylum right now? And what about next year, under the new EU Migration and Asylum Pact? 

Those were among the questions Luxembourgish officials asked other European Union member states in July, via the European Migration Network.

By October, 26 countries had responded, show documents on the European Commission website.

The Pact – which is slated to kick in next June – could potentially herald a downgrade in the quality of early legal care for some people seeking asylum.

It allows for “legal counselling”, which is not the same as the legal assistance currently on offer. 

This opens the door for non-lawyers to give guidance to people seeking asylum, at an early crucial stage of the process. 

In response to Luxembourgish officials, the Irish government said the concept of “legal counselling” is new in Ireland. Its meaning hasn’t been defined yet.

“It is not yet clear how the Legal Aid Board’s services fit within this new concept and whether solicitors will provide legal counselling or whether the concept fits within professional, ethical and regulatory rules for solicitors and barristers,” Irish officials said.

The general scheme for the new International Protection Bill, which aims to carry the pact’s rules over into a fresh domestic asylum law, embraces the notion of “legal counselling”. 

An assortment of witnesses from different non-profits raised concerns about that at an Oireachtas committee meeting recently.

A briefing document by the European Union Agency for Asylum (EUAA) describes “legal counselling” as a series of tasks like “the provision of information, guidance and explanations, including guidance on legal issues related to any of the stages of the administrative procedure”.

A spokesperson for the Department of Justice said legal counsellors don’t have to be “qualified lawyers” under the pact.

But it plans to offer counselling “in addition to any legal assistance and representation that applicants may obtain”, they said.

Some lawyers say the pace of case processing under the new law could mean “legal counselling” offered by a non-lawyer might be the only advice some people can rely on because there are just not enough lawyers to serve so many people so fast. 

The Pact’s border procedure rules, which Ireland has opted into, pull aside some people – from those who travelled without immigration papers for a myriad of reasons to people perceived to be a security threat – for a screening process.

They are to be accommodated in centres where they’re essentially detained, and their cases heard and wrapped up in three months. If rejected, the plan is to deport them within another three months.

Need more lawyers

Some countries already offer legal counselling. In response to the query from Luxembourg, Estonian officials said legal counselling is given by employees of the country’s border police.

They don’t have legal education, and their advice doesn’t count as legal aid, but they’re stationed at the “legal unit” of its “Police and Border Guard Board”, says its response.

Irish officials had said in response to Luxembourg’s query that they’re unsure if lawyers can “fully advise applicants in the administrative process”.

“Likely challenges under the new system will be the capacity and the resourcing of all stakeholders in the process to ensure that applications can be processed appropriately within the envisaged timelines as well as the quality of decision-making within the timelines provided,” says the response.

Yes, says Cathal Malone, immigration barrister, as things stand, there wouldn’t be enough immigration lawyers to give early legal advice to so many people so fast under the pact.

“The only reason counselling [under the Pact] is a thing is because the Pact only guarantees advice and representation at the appeal stage,” he said. 

A spokesperson for the European Commission has not yet addressed queries sent last week, including one asking why the notion of legal counselling has been introduced via the Pact. They said that its internal affairs team is working on a response, though.

The text of the Pact says a lawyer or “other counsellor admitted or permitted as such under national law to provide legal advice [..] or a person entrusted with providing legal counselling” should help the applicant during the asylum interview.

If someone can’t be with them during the interview, it says, they should get a copy of its transcript for review before the asylum decision is hammered out.

At the moment, the Legal Aid Board doesn’t pay lawyers to attend asylum interviews, and so if they agree to go, it’s pro bono. 

There’s going to be multiple interviews happening every day for people directed to the express route of the asylum process, said Malone, the barrister. 

 “I don’t think there are enough of us in this area to make that maths work,” he said.

The Legal Aid Board had previously voiced worries to the Department of Justice about its ability to meet everyone’s legal needs under the pact’s compressed timeframes.

“We have seen figures from the Department [of Justice] that postulate further significant increases in demand on account of the EU Migration Pact,” its officials had said.

A spokesperson did not directly respond to queries, including one asking about its deliberations with the Department of Justice on who will be able to provide legal counselling under the Pact.

At the moment, the Legal Aid Board mostly relies on private solicitors and barristers sitting on its private asylum panel and subpanels to handle asylum cases.

Officials at the Legal Aid Board had in the past flagged the need to recruit more lawyers for its panels, saying not many were interested to work in asylum law.

The difficulty of finding enough immigration lawyers and the challenges of offering proper legal advice also came up in the Belgian officials’ response to Luxembourg’s query.

“Proper assistance is labour and time-intensive [...] and most lawyers are overstretched and can no longer provide proper assistance,” they said.

Belgium’s overwhelmed immigration lawyers deputise their colleagues to take on some workload, officials said.

“However, in practice, these deputy lawyers often turn out to be insufficiently prepared themselves and do not know their client's file sufficiently well to provide quality assistance,” said their response.

Good experience with some lawyers spread through word-of-mouth also means they’re too sought-after, “leading to some lawyers working almost exclusively for the same target audience and adding to the workload”, they said.

Lawyers starting out have to get some immigration law training in Belgium, its officials said, but swelling workload means many “turn their backs on immigration law after completing the compulsory hours”.

That means “not enough new lawyers move on to the ‘pool’ of those who assist applicants for international protection”, they said.

Lowering the wages of these lawyers hasn’t helped either, said their response.

“The compensation for providing assistance has been reduced in recent years and the conditions for obtaining compensation have been tightened, resulting in a decrease in the number of lawyers willing to continue to engage in this activity,” they said.

In Ireland, lawyers on the Legal Aid Board’s private panels have also voiced unease about low wages.

In January, a group of lawyers sitting on the International Protection Appeals Tribunal (IPAT) went on strike over low pay, too.

Who will do it?

Access to legal help at the early stages of the asylum process has gradually become harder and more stressful in recent years, lawyers have said in the past.

Ireland now fast-tracks the process for people from countries it considers “safe” or citizens of places with the highest number of asylum claims every three months.

They might also have a shorter window to appeal initial rejections.

In the past, those applicants have said this means they struggle to access timely legal advice. 

Since November 2022, most people seeking asylum have had to complete asylum questionnaires on the same day they apply at the International Protection Office (IPO).

Before that, they could pick up forms and seek a lawyer’s help in completing them, because getting small stuff wrong can jeopardise their case. 

They can be accused of fibbing by asylum officers if tiny details they wrote down on the form don’t match what they said during the interview.

But in recent years, “the applicant is assisted by a cultural mediator or interpreter in completing the application form”, said Irish officials in response to an EU ad hoc query filed by Belgium recently.

The cultural mediators are often contractors working for the International Organisation for Migration (IOM) who can speak another language besides English.

The Department of Justice has said in the past that their advice doesn’t count as legal help.  

Whether current “cultural mediators” can take up training to evolve into “legal counsellors” under the pact is unclear.

The EUAA’s briefing document says legal counselling should be offered by “legal advisers or other counsellors admitted or permitted under national law to counsel, assist or represent the applicants” or civil society organisations.

But it stresses that it’s up to individual countries “to determine who is entrusted with the provision of free legal counselling”.

It says that if they don’t have legal training, they should have “relevant qualifications and training”.

“Having a higher-education background can be considered as beneficial to this role,” it says. Member states can have accreditation exams for those going for the role, says the briefing. 

A recent change in the law also greenlit IPAT to recruit legal academics or others whose work experience aligns with a lawyer’s job to clear appeal backlogs. 

IPAT has struggled to keep up with the pace of the initial stages of asylum for many applicants, as faster processing times without proper legal advice can inflate appeal numbers.

Under the Pact, at least on paper, it shouldn’t fall behind. 

Going it alone 

A spokesperson for the Irish Human Rights and Equality Commission (IHREC) said its position on the notion of legal counselling remains the same as outlined in submissions to the Oireachtas committee on the general scheme of the new asylum bill and a press release issued before that.

“IHREC warns that this would be a regressive step, as the new term is not defined and could deny applicants the confidential, independent legal advice they currently receive,” says the press release.

Gary Gannon, the Social Democrats TD and the party’s spokesperson for migration, says he is concerned about the concept of legal counselling because “this work cannot be handed to unqualified or semi-qualified personnel”.

“I believe legal counselling should be provided exclusively by qualified solicitors and barristers, with proper legal aid funding behind them,” Gannon said.

During an Oireachtas committee debate about the upcoming asylum bill, Tanya Ward, the CEO of Children’s Rights Alliance, said she was alarmed that the general scheme of the bill only mentions “legal counselling” and not legal representation and advice.

“The basic regulation in this space talks about legal advice and representation and legal counselling, but for some reason the general scheme only refers to legal counselling,” she said.

Said Fiona Hurley of migrants’ rights non-profit NASC: “We are concerned that the proposed concept of legal counselling will fall significantly short of legal advice or representation.”

But if the pace of the process for some picks up in speed so much that they may not get to speak with a lawyer anyway, isn’t counselling from a non-lawyer better than no advice at all?

Malone, the barrister, says that’s a scary thought to entertain because people not getting any professional legal advice is just not fair. 

“That’s a dangerous road to go down,” he said.