Underfunded legal aid system may struggle to support asylum seekers next year, documents suggest

A staff member at the Legal Aid Board, in an internal email, suggested the new EU Migration and Asylum Pact could mean an increase in work on asylum cases.

“We have seen figures from the Department [of Justice] that postulate further significant increases in demand on account of the EU Migration Pact,” wrote Ronan Deegan, assistant director of policy, development and external services in a 28 May 2024 email released under the Freedom of Information Act.

The comment was part of a back-and-forth as staff members prepared a business case to ask for more resources to represent people applying for asylum.

The department’s basis for predicting an uptick in cases after June 2026, when it starts processing asylum cases under the EU Migration and Asylum Pact, is unclear.

A spokesperson for the department did not directly respond to a query sent on 25 February asking that. But, they said, the overall goal of the pact is to reform the process, making it fairer, and boost its efficiency and sustainability.

“The Department will continue to ramp up investment at every level of the international protection system, including legal assistance, as work towards implementation of the Pact continues,” the spokesperson said.

The plan is that, under the pact, most cases would be processed at pace, in just three months, with the promise of deporting people within another three months.

Another of the emails from inside the Legal Aid Board is from Emily Sherlock, its director of internal service delivery.

Sherlock raises the disparity between the resources granted to the International Protection Office (IPO) for those processing asylum claims, and to the board for those representing the people seeking protection.

“You will note that it is quite significant but in no way near comparable to the resourcing of the IPO which directly correlates to our service,” wrote Sherlock, on 27 May 2024, about their submission to boost resources.

In response to a query about this disparity sent last week, a spokesperson for the Department of Justice said it is in regular contact with the Legal Aid Board’s management and has held meetings with them “on the question of resourcing”.

Gary Gannon, Social Democrats TD and its spokesperson for migration, said he’s worried about asylum seekers’ access to justice under the new EU pact. “I think everyone would like to see more expedient processes, but you have to be fair too,” he said by phone last week.

Gannon said his confidence in the government’s approach to asylum cases diminished this week upon hearing the Minister for Justice Fianna Fáil’s Jim O’Callaghan on the radio talking about deporting people, he said.

“Like being really triumphant about the fact that 32 people had been deported,” Gannon said.

Says People Before Profit TD Paul Murphy: “Underfunding the legal aid board in the context of a massive increase in fast track deportations will mean a cruel denial of justice to vulnerable people.”

Rising demand

The number of people applying for asylum who needed legal support has grown dramatically in recent years.

Once the emergency stage of the Covid-19 pandemic ended, the number of international protection applications grew beyond levels the board had ever seen, a spokesperson for the Legal Aid Board said by email Friday.

Between 2012 and 2021, legal aid applications from people seeking asylum had peaked at 3,300 in 2015, they said.

In 2023, the number was a little over 9,90o.  In 2024, it rose to almost 11,700, they said.

In response, the government has increased funding for the Legal Aid Board.

Funding rose from about €53.1 million in 2023 to about €59.1 million in 2024, according to figures sent by the department spokesperson.

It grew to €64.1 million in funding for this year, Minister O’Callaghan told the Dáil recently.

“The matter of staffing and resource allocation is, however, an operational matter for the Board,” O’Callaghan said in the Dáíl.

The Catherine Day Report – a 2020 external government advisory group report on offering support to people seeking asylum – had suggested that cases should be handled mostly in-house by lawyers employed by the board.

There should be a smaller external asylum panel of private lawyers, the report said.

But the unprecedented surge in cases means the landscape has completely changed since the Day Report, said the Legal Aid Board spokesperson on Friday.

“Application levels are over three times what the Day Report envisaged,” she said.

The Legal Aid Board has been expanding its external asylum panel. In 2023, it had 93 lawyers, and in 2024, it rose to 123.

In 2023, it handled a tiny number of cases in-house, 774 out of 9,908 – about 7 percent – assigning the rest to private lawyers sitting on its external panel, internal documents suggest.

It has three law centres dealing with asylum cases in Dublin, Cork, and Galway, says the last annual report available on its website published in December 2022.

The September 2020 Catherine Day report said the same, adding that it doesn’t have a dedicated unit just for asylum cases.

“It has a small number of full-time solicitors and legal clerks and they deal with other matters in addition to international protection applications,” it said.

An unpopular job?

Wages for lawyers on the external asylum panel, who handle the majority of legal aid cases, have remained low.

Current and former lawyers of the external asylum panel have been raising concerns over low pay as far back as 2021, and more recently in January of this year.

They usually have to split the wage with a barrister, they have said, because of the amount of work preparing the defence for each case takes and how busy they can get.

Internal emails to the board also reveal discontent raised directly with the board in the past year.

But the business case Legal Aid Board staffers were discussing last year – as mentioned in the emails released under the Freedom of Information Act – did not include asking for a fee increase, the board spokesperson said Friday.

“No submission was made for a fee increase for the International Protection Solicitors Panel,” they said.

O’Callaghan, the Minister for Justice, told the Dáil on 5 February that lawyers who join the board’s external panel agree to work on cases for a fee, depending on the terms and conditions of each panel.

“Such fees are agreed with my colleague, the Minister for Public Expenditure,” he said.

A spokesperson for the Department of Public Expenditure said queries about raising fees for such lawyers are for the Department of Justice.

A spokesperson for the Department of Justice said “any case made for an increase [….] will be considered on its merits” – but that the Department of Public Expenditure has to greenlight it too.

While exploring the idea of hiring more people, Tom O’Mahony, the board’s director of decision making and external services, wrote in May 2024 that they were unsure if low pay was an obstacle to recruiting more lawyers for the external asylum panel.

“It may be that a lot of practitioners do not want to get involved in this work,” they wrote.

If this is mostly true, the email says, “then an increase in the fee might make it more attractive to those currently on the panel to take more cases”.

Asked about the suggestion that low fees are not an obstacle to recruitment, the board spokesperson said on Friday: “There is no such suggestion made on the part of the Board in the documents which were released.”

The board has not responded to a query sent Monday, asking how to reconcile the statement in O’Mahony’s email, with the statement sent Friday by its spokesperson.

In any case, the spokesperson said Friday that the Legal Aid Board’s spring 2024 recruitment campaign was a success. “With a subsequent significant increase in the order of 50 solicitors,” they said.

But asylum is a deeply specialised area, and one has to be interested to want to get trained and seasoned in that line of work, the spokesperson said.

The number of people interested isn’t boundless, they said. That might mean “that panel numbers may not be significantly bolstered further than the current numbers”.

Wendy Lyon, partner and immigration solicitor at Abbey Law, who dropped out of board’s external asylum panel when it lowered its rates for lawyers like her in 2019, says a mix of low pay and ballooning caseload does turn people off.

“I left the panel when the fee structure was redone in a way that would de-facto result in a cut of more than 50 percent in legal fees in many of my cases,” Lyon had said in 2021.

For replying to solicitor Finbarr Phelan of Niall J. Walsh & Co. solicitors, who’d complained about fees in May 2024, Deegan, the board’s assistant director of policy, suggested sending a previously used response, internal records show.

“I think we had a line we used before along the lines that the fees are those approved by the Minister for Justice and Minister for Public Expenditure,” they wrote. And that there are no plans to seek an increase for private lawyers who work on asylum cases.

A spokesperson for the Legal Aid Board said it’s not like it’s inundated with complaints from lawyers.

“With just two such queries having been received in the eight month period covered by the FOI request in question,” they said.

Complaints from three solicitors about fees were among the documents released under the Freedom of Information Act.

Lyon, the solicitor, says that if lawyers aren’t writing in droves to complain that doesn’t erase the fact that their wages are low.

“I think most of us wouldn’t bother emailing LAB about it, that’s not gonna change anything,” she said.