New rules for asylum and immigration disputes make practising that area of law less attractive, according to solicitor Wendy Lyon, who specialises in such cases.
She fears new practice directions issued in December by the president of the High Court, Mr Justice Peter Kelly, could mean people who want to appeal asylum and immigration decisions will find it more difficult to get a solicitor.
She said solicitors who represented clients challenging asylum and immigration decisions mostly take such cases on a no foal, no fee basis, and often get no fees for their work in cases where they lose. However, the new rules created the possibility that solicitors could end up being held personally liable for the costs of unsuccessful cases.
“One concern we have is that there would be an access-to-justice issue if people find that they can’t get a legal practitioner who will to take the risk of taking them on.”
Statistics from the Courts Service show that asylum and immigration cases accounted for 497 new judicial review cases in 2017, more than the 464 taken in all other areas of the law.
Ms Lyon, a solicitor with the Dublin firm KOD Lyons, said the majority of the cases brought against the State were settled, with most settlements involving the applicant getting some satisfaction and some of their costs being paid by the State.
She said the statistics showed “that the cases that are being brought are of some merit. They are not frivolous cases. I don’t think anyone would go into this area as their primary area of law if their chief objective was financial gain
“People who go into the area generally do it because of a sense of conviction. I think there will always be people who will do that. But if [practising in the area] becomes too difficult perhaps that may change.
Applications
“The question for me is why so many judicial reviews are being pursued. It’s certainly not because of the money that is being made.”
There was no legal aid system for such applications. If it were not for applicants taking cases, supported by lawyers working on a no foal, no fee basis, the State “would have a greater opportunity to take unlawful decisions”. The ability to take judicial reviews “acts as a kind of check” on the State.
Given that solicitors faced not getting paid in cases that were lost, “if someone comes in here and has what looks like a terrible case, we are going to tell them it is a terrible case. We are not going to take it on.”
The Law Society is seeking a meeting with Mr Justice Richard Humphreys, who oversees the asylum list in the High Court, to air its concerns about the new rules .
The society believes the new rules are "impractical, impossible to comply with, and injurious to the constitutional right of access to the courts", according to its director general Ken Murphy.
Among the matters causing concern to the society is that solicitors may be made liable for costs in cases where they are found not to have complied with the practice direction. “The society is concerned that this practice direction will have the chilling effect that fewer, if any, solicitors will be prepared to take on such cases,” said Mr Murphy.
The Bar Council, which represents barristers, is to discuss the practice direction at its meeting on Wednesday.
