April 18 2024
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‘Asylum seekers desperately need effective legal representation – not scapegoating’

‘Asylum seekers desperately need effective legal representation – not scapegoating’

Justice in a time of austerity: a Justice Gap series

On Monday this week, Lawangeen Abdulrahimzai stood in the dock of Salisbury Crown Court as the jury handed down its verdict.  By a majority decision, they convicted the Afghan asylum seeker of murder, finding him guilty of stabbing Thomas Roberts to death in Bournemouth last year, the tragic climax to a dispute over a scooter. Sentencing Abdulrahimzai to life imprisonment on Wednesday, HHJ Dugdale condemned his ‘momentary act of extreme, senseless violence’.

By any reasonable standard, Abdulrahimzai should have not been in the country to murder Thomas.  The Afghan national had a difficult start to life, telling Home Office officials that his parents had been murdered by the Taliban when he was 13, and how he had then been captured, beaten and tortured; but his choices since then meant that no European state was ever going to grant him asylum.

He fled Afghanistan two years after he was orphaned, travelling through Pakistan, Iran, and Serbia before, with the help of an uncle, reaching Norway in late 2015.  Rather than settling there, Abdulrahimzai made his way to Trieste, on Italy’s Adriatic coast, where, possibly in some attempt to make a living, he turned to drug-dealing.  After being charged in Italy, he pled guilty in exchange for a non-custodial sentence, before setting off once more, returning to Serbia in 2017.  It was here that he damned his prospects of ever receiving asylum, when he murdered two Afghan nationals with a military-grade Kalashnikov in a killing described as ‘disturbing’ in a UN report.

A Serbian court convicted Abdulrahimzai in absentia of the murders in 2020, by which time he had made his way to the UK, where he had claimed asylum and was attending school as a 14-year-old.  As his asylum application wound its way through the UK’s system – complicated by the fact he claimed to be a child – he murdered Roberts.   From the perspective of some who have reported on this story, including the Spectator (How did this killer asylum seeker hoodwink the authorities?), this reveals the flaws in our immigration system.  Rather than Abdulrahimzai being a tragic story of a child who was abused, developed mental illness, and committed atrocious crimes, he is emblematic of a failed system, one that gives succour to those who threaten the British state, rather than removing them.

While these outlets may place some of the blame on the state – with the Daily Telegraph emphasising that Home Office policy prevented officials from treating Abdulrahimzai as an adult – to them, the primary culprits are the immigration lawyers who ‘help’ keep asylum seekers here.  Rather than immigration lawyers protecting the rights of a vulnerable group, among which may be some undesirable or undeserving applicants, they are responsible for a system which helps asylum seekers avoid what, to these critics, is the only acceptable fate – deportation.

From this perspective, these lawyers are nefarious and malingering, abusing their knowledge of the system in order to help asylum-seekers and refugees navigate it and escape its checks and balances.  What this ignores is that lawyers are integral to the effective functioning of the asylum system, ensuring that the right people are given permission to stay in the country, but also that the wrong people – like Abdulrahimzai – are not.

If Abdulrahimzai had been convicted of murder without representation from defence counsel and solicitors, the trial would have been condemned as a farce.  It would have been held for appearance’s sake, with little to distinguish it from the show trials of the Russian and French Revolutions.  No jury, after watching the CCTV footage showing Abdulrahimzai stabbing Roberts twenty-eight times, would  have considered the possibility that he was guilty of anything other than murder.  But without his case, which was that he was guilty of manslaughter, being put forward by defence counsel, it would be impossible to have faith in the verdict.

Society needs to have faith in the criminal justice system.  The power to strip someone of their liberty, condemning them to a barred cell, is one that must be exercised carefully. This is why the right to counsel in a criminal trial is a fundamental one.  Yet even though claiming asylum is equally fraught, little thought is given to providing asylum seekers with effective legal advice.  In many ways, asylum-seekers are worse off than those charged with criminal offences. They have little to no understanding of English courts, perhaps equally little understanding of the English language, and face the risk of not only confinement, but return to a country where they fear for their lives. It is self-evident that they desperately need effective legal representation, but government after government has scapegoated them rather than engage with their needs.

It is this hostility that explains why asylum-seekers are not eligible for legal aid until after they have attended a preliminary screening interview with the Home Office.  This is despite the fact that the Home Office processes would inordinately benefit from asylum-seekers attending with a lawyer. It would improve the screening interview and speed up the process for the substantive interview, as well as putting an effective framework in place for any future appeals.

Couple this delayed provision of legal aid with the brutal cuts inflicted by successive governments, and you have an preliminary decision-making process that is in tatters and unable to make effective decisions.   Despite knowing this – and despite over 35% of cases being overturned on appeal – the appeals process is little better. If their claim is rejected, legal aid is only available to challenge it if lawyers consider that it an appeal has a greater than 50% chance of success – deterring many firms from taking on cases that are deemed ‘borderline’, as Refugee Action found in a 2020 report.

The state of immigration legal aid, including the inadequate pay offered to lawyers who take it on, may also radicalise lawyers who work in the system, to say nothing of appealing only to those who feel a vocation to it.  While no lawyer would intentionally seek to deceive the court or to present a case they thought was false – the rules that bind lawyers are very clear that their first duty is to the court – but they may take a more sympathetic approach, one that is perhaps not as distant as it could be.

Thomas Roberts’ death was a tragedy, and was one that could have been avoided.  But the fault does not lie with asylum seekers, even though violent offenders like Abdulrahimzai may rarely be among their number, but with the system that fails to properly hear their claims.   So long as the asylum process in the UK remains underfunded and understaffed, as well as being misunderstood by ministers, members of parliament, and members of the public, it will remain flawed and dysfunctional.