We have seen enough of this year’s elections and election campaigns in Europe and America, even without the results of many of them being yet known, to foresee one thing for lawyers. It does not take a political genius to prophesy it, either. Immigration lawyers are going to be at the centre of action - despite most voters saying that the cost of living and public services feature higher than immigration among their concerns, at least in the UK.
The current challenges faced by immigration lawyers, here and elsewhere, are likely to grow worse. One reason is that the level of arrivals into Western democracies will probably increase, for multiple reasons, including climate change. And voter pressure to deal with the arrivals will therefore increase, too. (Since political views tend to run strongly on this subject, I should state that I and my parents were immigrants and/or asylum seekers, and I sympathise with the group’s plight.)
In the United States, following a political logjam, president Biden issued an executive order earlier this month to close the US-Mexico border once the seven-day average for daily illegal crossings hits 2,500, which is a regular occurrence now. The border will reopen only after the figure drops to 1,500 for seven days in a row and stays that way for two weeks. Last December, about 10,000 people a day were making the crossing. His order is being challenged in the courts.
US immigration lawyers can’t cope with the demand. Legitimate asylum seekers face deportation because they are unable to find a lawyer to represent them (there are just not enough to go around). Research shows that only about 30% of migrants are now able to find a lawyer for legal proceedings, compared with 65% five years ago. As for the courts, the immigration court backlog has gone up to more than 3.5 million from 300,000 cases in 2012, with more than a million new cases added in the last year. In the courts, judges average 4,500 pending cases each. It would take about 1,000 more judges to tackle the current backlog by the fiscal year of … 2032.
The stresses on each of the parties in this system are barely imaginable. Just one small anecdote: it apparently can take an experienced lawyer up to 75 hours just to prepare an asylum application.
In the EU, the legislation on migration and asylum continues apace. The Pact on Migration and Asylum has just finished its long journey into law, and now a new draft anti-smuggling directive is under discussion. Its aim is to define and to sanction the offence of facilitation of unauthorised entry into the EU. The problem, according to the Council of Bars and Law Societies of Europe (CCBE), is that advice by lawyers to those coming into the EU might be turned into the crime of facilitation. The consequences for fundamental rights and access to justice are clear.
In the EU, the far right have just done well in the elections for the European Parliament. The tussle for top EU jobs and new groupings in the parliament continues, with far right success reflected in the negotiations. It is not difficult to predict that immigration will soon go even higher up the EU’s agenda.
And in this country we have our own challenges. Although the polls continue to predict a Labour landslide, the reallocation of votes on the right will bring their own consequences. In addition, Labour will inherit our current problems, without the money to resolve them.
Our own backlogs are grave: the immigration and asylum open caseload increased from 30,872 at the end of April last year to 54,059 at the end of April this year, an increase of 75%.
There has been a history of violence and harassment against immigration solicitors in the recent past.
Assuming that there is a Labour government headed by a lawyer, we can presumably expect the anti-lawyer rhetoric to cool. But will there be more lawyers and courts? The Labour manifesto (other party manifestos are available, but I am basing myself on the polls) speaks very generally about ‘a fair and properly managed immigration system’, without mentioning solutions for the strain facing us currently.
We have had a Labour government headed by a lawyer in the recent past, and that did not lead to a good outcome for lawyers, at least in the field of regulation – the much-contested Legal Services Act 2007, with multiple layers of responsibility and government participation, was the outcome.
The EU’s new anti-smuggling directive was proposed before the European elections took place, and president Biden’s recent executive order was proposed before the US elections this November. Democratic governments find themselves obliged to take ever stronger action to stay in power.
Lawyers may be caught up as collateral victims, and we need to ensure that our immigration colleagues’ interests are defended.
Jonathan Goldsmith is Law Society Council member for EU & International, chair of the Law Society’s Policy & Regulatory Affairs Committee and a member of its board. All views expressed are personal and are not made in his capacity as a Law Society Council member, nor on behalf of the Law Society
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