Supporting migrants with mental capacity issues – Brian Dikoff

ILPA documents | Refugee

How Migrants Organise is working to provide litigation friends for migrants who lack capacity

Migrants Organise is a registered charity based in London. We run a Community Programme where we offer ongoing and holistic support for vulnerable migrants and asylum seekers, focusing on individuals with complex needs and ongoing mental health issues.

In October 2017 we started a strategic Migrants Mental Capacity Advocacy (MMCA) project due to concerns relating to the lack of safeguards for vulnerable individuals with mental health conditions who might have issues making immigration-related decisions. We created a small referral system supported by a panel of pro bono professionals, and for each referral we create a bespoke support plan. At the moment, we have 31 cases. 17 of them are appeal stage cases, in which the referrer requested assistance with a litigation friend, and 14 of them are pre-litigation cases.

In pre-litigation cases, where an application needs to be submitted, we encountered cases where vulnerable individuals lack the capacity to sign the retainer and provide instructions to a solicitor. In some cases, for example, the individuals mistakenly believe that they have British citizenship.

On the other hand, in cases at the appeal stage, we noticed that, in practice, there was a lack of provision of a litigation friend of last resort. In AM (Afghanistan) v SSHD [2017] EWCA Civ 1123, the Court of Appeal confirmed the tribunal’s power to appoint a litigation friend. Despite this, vulnerable migrants who require the assistance of a litigation friend still face significant barriers.

First, immigration advisers and representatives are often unfamiliar with the concept of mental capacity. The Mental Capacity Act 2005 does not require formal capacity assessments in order for the court to determine that an individual is subject to its provisions. It requires those making a decision or doing something on behalf of someone who lacks capacity to make that decision or act in their best interests. The Act also makes clear that while someone may lack capacity to do one thing, they may have capacity to do other things. However, we have noticed a significant reliance on ‘formal’ capacity assessments done by a medical professional, which can be difficult to obtain particularly under the legal aid system. Immigration advisers and representatives are often not confident enough with the workings of the Mental Capacity Act 2005 to identify issues with mental capacity and advocate for the need of litigation friends when needed.

Secondly, there are also no effective litigation friends of last resort to act in the immigration tribunals. This is particularly significant for migrants and asylum seekers who often lack a reliable support network who can step in as a litigation friend. The Official Solicitor will still accept and consider referrals to act in the immigration tribunals, but she has very limited capacity to act and often refuses. We have met with representatives from the Official Solicitor’s office in different occasions, and we understand that at present the Official Solicitor simply does not have the budget to act in tribunal appeals, even as a litigation friend of last resort.

In response to this, we have recruited 22 immigration and welfare professionals (solicitors, barrister, social workers and advisers) to act as professional litigation friends of last resort. It is not our intention to provide a long term solution to this issue; our aim is to gather expertise in cases involving litigation friends, raise awareness of the current issues, and push for long-term sustainable solution. We believe that the most straightforward solution would be to fund the Office of the Official Solicitor to act in tribunal cases. They are specialist and experienced. This is why we only accept cases when the Official Solicitor has refused to act.

Funding for our litigation friends is, however,  an issue. We only recruit experienced professionals to ensure quality service given the vulnerabilities of the clients. All of them are full-time workers who would need to take annual leave or lose out on a working day in order to assist as litigation friends. We cannot afford to pay our group of litigation friends ourselves because most of the MMCA project is currently unfunded.

We therefore have to charge to cover our costs of paying for their time and reasonable expenses (predominantly travel expenses). We work with the representing solicitor to ask individual tribunal managers to cover these costs on an ex-gratia basis. We are aware of the very restricted budgets in this area and so we match the cost with the current legal aid rate for immigration work.

Initially there were significant delays and confusions over these requests. Many managers either ignore the requests or ask the representative to ask the Legal Aid Agency. The work of a litigation friend is simply not covered by legal aid and, regardless, there would be a significant conflict of interest if the funding of the litigation friend is tied to the representative. However, we continued to discuss this issue with the Ministry of Justice and, presently, our last nine requests have been approved.

We are a part of a working group looking into the issue of litigation friends in the unified tribunal system and this payment mechanism was acknowledged as providing a temporary solution to this issue. This of course is still unsatisfactory and inadequate. First, the availability of this payment mechanism is not well known. There is no formal mechanism to obtain the request or to challenge refusals. Importantly, our project is small and cannot possibly meet the need for litigation friends of last resort. We are aware of instances whereby other charities exceptionally act as litigation friend, but we do not know of any other service similar to our project.

Likewise, our model relies on professional litigation friends but, at the moment, there is very little guidance on who should be appointed as a litigation friend as well as their duties and responsibilities. For example, we know of a case where the judge wanted to appoint a solicitor from a firm representing the client to act as a litigation friend which would create a financial conflict of interest. In some cases, we have seen the role being muddled with that of a support worker, intermediary or interpreter, and unqualified McKenzie friends. If the solution lies in professional litigation friends then more guidance and a mechanism to oversee the work of the litigation friends would be crucial.

Brian Dikoff, Legal Organiser, Migrants Organise

Document Date
Wednesday March 11, 2020