A support group for Zimbabwean asylum-seekers and refugees in the UK
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Guidelines
PART 1: Solicitors' GuidelinesPART 2: Removal GuidelinesPART 3: DOs & DON'Ts
PART 1: Solicitors' GuidelinesA solicitor or legal adviser owes you a duty of care: What is good practice? Most of the points below amount to consistent and precise communication. This allows asylum seekers, especially those detained, their relatives and friends, to gain trust and confidence about working with a lawyer to manage their own case. These points are based on the Law Society - the lawyers' professional association's Good Practice Guidelines for lawyers. First some remarks about what a solicitor should always do, eg. What is good practice during preparation. Then follows what is good practice at appeals. 1) Interpreting: 2) Solicitor must outline availability of Legal Aid, even if s/he has no Legal Aid Franchise. S/he should explain contractual obligations of client and lawyer, eg. For client to speak the truth and not ask lawyer to change or embellish for the better, and the limits of procedures allowed under legal aid, merits tests, etc. (It is not unknown for solicitors to claim both Legal Aid and require private payment, expecting clients not to be informed; if this comes to light they will instantly lose their franchise. This is of course illegal and should be reported to the Law Society and OISC. See section on complaints.) 3) Solicitor should explain the stages of the procedure: A) Screening interview at Immigration, to register application for asylum. (see section under Asylum heading for more detail) B) Asylum interview: It is important to get legal help before you go to your full asylum interview so you understand the process and what sort of questions will be asked. You must attend the Home Office interview. You should ask to be interviewed in the language of your choice, and the Home Office must supply an interpreter if you do not choose English. You can ask for your interview to be tape-recorded and you must ask for a copy of the tape at the end of the interview. (Requests for tape-recording need to be made at least 24 hours before the interview.) Listen carefully to the questions and try to answer
them in a brief, clear way. If you say things that are different
from what you have told the Home Office in your screening interview
you will damage your credibility. If the application is refused (it happens 90%+ of the time … don't panic!) then an appeal must be lodged within the deadline given in the Refusal letter … or else the client is 'out of time' and it is very difficult to reverse that decision. Your solicitor can do this without seeing you, but you should insist on getting copies of the papers so as to be sure it has been done, and done on time. C) Appeals: Preparing for a first appeal: This is a lot of preparatory work for both client and solicitor, and success depends on it being done well. It is no good a solicitor doing it one or two days before the hearing … Another session is needed of 'taking instructions', with the solicitor and client preparing a 'statement', which corrects errors and answers the reasons for refusal given in the Home Office refusal letter. Many solicitors don't do this thoroughly. Some let the client do the questionnaire or statement themselves and don't check through it answer by answer. Yet the quality of this corrected and agreed statement often determines the success or failure of the appeal … This is a serious omission of duty of care; errors and contradictions will be exploited by the Home Office, noted and used by the Immigration judge. If the solicitor used shortcuts or devious means to obtain a signature on the statement for the appeal, eg. Without fully translating the statement back to the client in a (second) editing interview, the client must be aware, and can say so in the court. A solicitor may not at any time alter evidence, either to help or hinder his client's case. If the client presses them to do so, or indeed substantially alters his/her account upon later occasions, asking him/her to alter the representations, the lawyer can claim to have been 'professionally embarrassed' and may give up representing the client at once. Unrepresented appeals may often be deemed by the Immigration Judge to carry implications of untruthfulness. However, it could also be not untruthfulness but the solicitor's own lack of understanding and knowledge of the evidence which causes a solicitor to decide he can no longer represent because of 'professional embarrassment'. A solicitor should encourage the client to obtain confirmatory evidence, and explore means of doing so: Thus, membership cards of political parties, arrest warrants, death certificates, medical report from country of origin, family letters or even better, legal affidavits, to be sent by safe means to UK (eg. Zim cases to use couriers, as postal/electronic communication is seriously unsafe). Envelopes and packing of any evidence sent should be kept. Torture, rape or other traumatic experiences: At any stage in the representative/appellant relationship there are indications of torture, these should be explored, and an expert report obtained. Victims of sexual violence often find it very difficult to disclose this; so if necessary having a same sex interpreter is important. Sexual abuse is especially hard for many Muslims, and may turn into a serious reason for suicide risk later on. Rape, male or female is a standard war tool for many political conflicts, it happened in Zimbabwe, Congo, Sierra Leone. Problems resulting from trauma and torture are called Post Traumatic Stress/Disorder or PTSD. Clients sent for PTSD reports should be prepared beforehand to be upset by being asked to remember and tell. It should be explained to clients why having the courage to talk of it to obtain a specialist report could make the crucial difference to their case. It may also ease their depression and shame later in life. If cross examination about such horrible events in court causes upset, the lawyer or the client may ask for a break, called an adjournment, if the Immigration Judge does not do it. The Home Office almost always ignores torture information given by an applicant, or worse will present it as a lie if there is no expert report by a well known organisation or specialist. Unless a lawyer takes action to provide such confirmatory evidence, no one else will. A copy or notes should be sent to the client of all important documents. That means: interactions and representations by the solicitor to courts, medical services, Home Office, prison authorities: This is one failed by many solicitors, who try to save time, admin and postage. A good solicitor will certainly let client have a copy of their statement. Even important phonecalls to negotiate, TA, bail etc. should be noted down in (at least monthly) progress reports to clients. Clients in detention/prison should have bail explained to them: There is a difference between Immigration Judge's bail in court, and CIO (Chief Immigration Officer's) bail, clients should be encouraged to seek their own sureties. Sureties should have acceptable immigration status, which could be any of these, ELR< ILR< British residence, UK citizenship. The large amounts required for CIO bail and smaller ones for court bail should be explained. CIO bail requires deposition of monies in the solicitors 'client holding account'. The solicitor can KEEP the interest on amounts >1000.- but not the amount itself, which should be returned at the end of procedure; This may be one reason why bad solicitors love CIO bail and may not volunteer to explain court bail; it brings them no profit. Appeal at the Asylum and Immigration Tribunal (AIT) hearing centre Appearance at court by a barrister (specialist court lawyer instructed by the solicitor), must happen. The solicitor must make sure that client and everyone else involved, including courts must be informed of hearing dates, and also if hearings are 'adjourned' (=delayed) Communications should be prompt on forthcoming dates, to all involved, eg with appellants, sureties and relatives/accommodation people. Warning of withdrawal of representation must be timely:If a solicitor decides they are professionally embarrassed (see before) or the case does not/no longer passes the merits test, (=likely to look successful enough to deserve payment from Legal Aid), then notice must be given well before date, so the client can look for another representative. That is one reason why preparation should happen as early as possible before the appeal. Bad lawyers often announce their withdrawal of representation just a few days beforehand… resulting in an applicant having to appear alone, with the Home Office and the Immigration Judge 'leading' the procedure. Such an unrepresented appeal is usually LOST. The professional who decides for a solicitor if there is 'merit' in a case, is 'counsel', also named barrister. This is the lawyer who specialises in appearing before the judge with legal arguments. Barristers don't usually see clients except just before the hearing, to check details. Barristers vary enormously in their strictness or boldness about merits test. Solicitors can only act on 'counsels' opinion' unless they are willing to risk losing Legal Aid money, eg. Believe in their case. Very few do! Occasionally good barrister chambers will have charitable funds set aside to do cases not passing merits tests but considered important. Return of funds lodged for getting bail:This is surety money, which has been paid into the solicitors' client holding account' to get bail for a detained asylum seeker, upon completion of procedure recognizances (bail monies) should be returned to sureties and appellants, bad solicitors don't. This is unprofessional and should be reported to the Law Society or OISC. What if your solicitor did not provide good practice? How to complain effectively. This is a brief summary of the differences between good and bad practice with directions on where to send your complaint The professional body supervising solicitors is called the Office for the Supervision of Solicitors (OSS). It is a part of the Law Society, the lawyers' professional organisation. Address: Victoria Court, 8 Dormer Place, Leamington Spa, CV32-5AE. Tel: 01926820082 The professional body supervising immigration advisers
and voluntary organisations, but also solicitors, is the Office
of the Immigration Services Commissioner (OISC). Their contact
details: 5th floor, Counting House, 53 Tooley Street, London
SE1 2QN You might begin your statement as follows: 'I, xxxx-xxxxx, (name, nationality, date of birth, current address) hereby declare truthfully my experiences with the following legal representative during the time they represented me in my asylum application: (give the name and address of solicitor or immigration advisor) Then go on to write down your experiences on each of the following points: Keep the numbering and respond with a brief description to every point. Stick to facts, maybe give an opinion, but don't write long rambling accusations even if you have reason to be angry….It will not help make your point. If you have receipts for monies paid, etc, enclose photocopies. If not, report method of payment, eg, cash, postal, cheque Give bank details if applicable. When you have finished, sign and date your statement. Then send it. ALWAYS keep a copy!
A bad solicitor FAILS to do some, most or all of the following: 1) Provide adequate interpreting, respecting confidentiality and political/ethnic sensitivities. 2) Advise on the availability of Legal Aid. 3) Notify by letter of contractual arrangements entered into; duties of client and lawyer. 4) Arrange for a thorough interview at their office to take instruction and prepare applicant for the Home Office asylum interview 5) Print, and show copy of draft statement, then correct/amend with client till client satisfied. 6) NOT advise to alter evidence, or omit evidence, or present representations which not reflecting client instructions. 7) Have at least adequate, better, GOOD client communication, ie, send copies of all submissions made on behalf of client, and inform of calls/negotiations with HO>Respond to telephone calls. 8) Encourage client to obtain confirmatory evidence of their story; such as organisation membership cards, medical reports, warrants, publications, media reports, and advise on safety of postal transfer. 9) (For detained clients): Explain bail, sureties, bail conditions, the need for compliance and risk of detention if not, difference between CIO and court bail. Give realistic information on amounts required for recognizances: Not always in thousands! 10) Provide printed/written evidence of payment of all fees paid, or of 'lodged' bail monies. (That is, money for bail paid into solicitor's 'holding account' until end of asylum procedure or end of bail) 11) Communicate/inform of forthcoming court/interview dates well in time, and advise on travel support. 12) Upon end of procedure, return bail monies promptly
if lodged in solicitor's client holding account. PART 2: Removal GuidelinesREMOVAL OF 'FAILED' ZIMBABWEAN ASYLUM SEEKERS Guidelines from Zimbabwe Association, August
2006 These GUIDELINES are intended to help those
Zimbabweans who believe they may be at risk of being sent back.
Do you want to go home? You may be considering going back to Zimbabwe voluntarily. If you decide to do this, you may be able to get help from the IOM (International Organisation of Migration, 0800 783 2332). Phone them and find out what the current position is regarding 'voluntary' returns. IF you do NOT want to be sent back (and have no lawyer) 1. As a precaution, well before detention, Give the following personal details in writing to a reliable friend or relative who will take action to help you if you are detained prior to removal, and also ensure you always carry these details yourself: your full name, date of birth, Home Office reference number, your Port reference number, flight details (if known) , your mobile phone number, and your MP's name and contact numbers. Also, write a short note authorising the Zimbabwe Association or The Bail Circle (07861-22-99-54) to find legal representation for you. You should make two copies, and sign and date them. Write another authorisation that permits them to seek information from any agency including medical information, and to take any action deemed helpful to your case. This is to prevent the Home Office from telling the authorised person or organisation that 'they are not your lawyer, so it is none of their business' and refuse to give information. Without it, even your MP may be refused information. 2. Contact your MP and ask to see him/her at their local constituency 'surgery'. If you don't know your MP's name, find out from your local Citizens' Advice Bureau or one-stop Advice Centre, or ring the House of Commons 020 7219 3000 and tell them your address. When you see your MP, hand over full details of your asylum case (SEF, statement, Home Office refusal letter, Adjudicator's Determination, removal directions, and new evidence if you have obtained any meanwhile. Also exclude: stuff like NASS- or appeal papers) and explain why you are afraid to be sent back to Zimbabwe now. MPs usually hold their surgeries on Saturdays at their local Party's office, or at public places, libraries etc. throughout their constituencies. Details from local library, from Town Halls, or Google 'The Guardian Aristotle Politics', and feed your home address postal code into the search engine. It will return your MP's details. 3. If you are required to report regularly to the police or an Immigration Office, you should continue to report. (Failure to do so means you will be regarded as an absconder, which makes it more likely that your name goes on a list of Wanted people, who may be arrested and detained to be removed.) However, since there is a possibility you will be detained when you report, you should arrange to be accompanied by the friend/relative who is going to help you (see paragraph 1 above). 4. If you are detained prior to removal, you or your friend/relative should contact the following: (A) Refugee Legal Centre - emergency number 07831 598 057. (B) The Zimbabwe Association - 020 7549 0355 (or 07985037198) (C) Your MP (either at the House of Commons, or their local constituency office). IF you do NOT want to be sent back and want to set up your own anti-deportation campaign The National Coalition of Anti-Deportation Campaigns - Contact the NCADC if you are interested in starting your own public anti-deportation campaign - do this as early in your asylum process as possible; don't leave it until you find yourself in detention. If you are interested in setting up an anti-deportation
campaign you can down-load our 30-page guide book How can NCADC help you? How NCADC cannot help you Contact your local NCADC co-ordinator (for
immigration detainees, contact the co-ordinator for the region
in which you were living prior to detention) If you don't want to go home, and you have a lawyer: Contact your lawyer, explain your worries about being sent back, and ask for their advice. GENERAL TIPS * If you are a regular church-goer or worshipper, contact your priest or vicar and explain your worries, and ask for support/help. * Make sure you have all the emergency phone numbers indicated above on you whenever you go out. * If you are sent back to Zimbabwe before anybody can intervene, contact the Zimbabwe Association as soon as possible after arriving home and try to keep in contact thereafter. * Some people have delayed being deported in the past by refusing to cooperate with those state agents who accompany them to and onto the plane. In some cases, non-cooperation has been taken to the length of stripping off all clothes. Other methods are: Refuse to sit down. Scream or shout, to passengers, to crew members. Ask to see the plane's pilot. Tell everyone who listens why you fear being removed, and ask them to refuse to take you. * Remember, you cannot be lawfully removed against your will if you have an appeal outstanding, whether to an Immigration Judge or to the Asylum and Immigration Tribunal, nor if you have a valid civil action against the authorities. * If you have new evidence bearing on your individual case, which has not previously been seen by the Home Office or an Immigration Judge, you may be able to make a fresh asylum claim. However, you should try to get help from a lawyer to make such a claim.
The determination does accept that those who may be linked with Zimbabwean opposition parties or have military or criminal records (or warrants outstanding) may be at greater danger of serious mistreatment during interrogation by Zimbabwean authorities. People in this category should discuss their situation with their lawyers. PART 3: DOs & DON'TsDO |