4.2.2. Legal assistance and representation

Legal assistance and representation is a necessary condition for applicants’ effective participation in the asylum process. Currently, EU legislation requires Member States to provide for making such assistance available on request during appeal procedures. Provision of legal assistance in first instance is typically contingent upon availability of resources and is left at the discretion of Member States. Civil society actors have a key role in providing legal assistance, oftentimes making use of available EU funding, such as the Asylum Migration and Integration Fund. In 2018, changes introduced by EU+ countries in the area of legal assistance and representation concern the extension of assistance to different stages of the asylum process and, at times, changes to the actors involved in the provision of legal services. It is worth noting here that, in conjunction with initiatives carried out by authorities, civil society actors, especially organisations with operational experience, also played a role in identifying existing challenges and limitations and creating pressure from the bottom up toward addressing those challenges. 

In 2018, in the Czech Republic, the amendment of the Act on Advocacy came into force,337 whereby it is foreseen that both citizens and foreign nationals with insufficient income may request free legal counselling from the Czech Bar Association before and during administrative procedures. Free legal counselling can be also provided to foreign nationals in detention without any limitation, and in both cases the cost is covered by the state. This new system of free legal counselling is distinct from the counselling offered by non-governmental organisations, which is also available under AMIF funding. Similarly, in June 2018, the Swiss government approved a set of new legal provisions (applicable from 1 March 2019) to extend the provision of free legal aid to all applicants in Switzerland from the beginning of the asylum procedure.338

Providing or enhancing access to legal assistance at first instance is also the focus of national projects in other EU+ countries. In Germany, for instance, as part of a project that started in 2017, authorities implemented, in autumn 2018, a pilot project on procedural counselling during the first instance procedure in nine BAMF field offices. New procedures were also established in the context of AnkER- Centres,339 such as the Asylum Procedure Counselling or Legal Applications Units.

In Finland, the implementation of the ‘ONE project’ aims at ensuring availability and quality of general legal counselling provided at the early stages of the asylum procedure. The Finnish Ministry of Justice published a study report in December 2018 assessing the effectiveness of the legal changes introduced in 2016 and looking into improvements that came about as a result of these changes. The report also included recommendations for further improvements, such as immediate access to legal aid after the submission of an application for international protection and securing a sufficient number of competent legal counsels.340

Amendments were also introduced with regard to the provision of legal assistance in the appeal procedure in France. Legal aid can be requested within a time limit of 15 days from the OFPRA’s decision. The time limit for appealing OFPRA’s decision is interrupted until there is a decision concerning the legal aid.

In Hungary and Slovakia, changes introduced in regards to legal assistance and representation focused on the actors involved in the process. In June 2018, the Hungarian Parliament adopted a legislative package, commonly referred to as Stop Soros, which includes, among others, new rules related to the provision of legal counselling by NGOs and other organisations. The package, among others, sets legal obstacles to activities carried out by civil society organisations toward supporting applicants for international protection in submitting applications. As presented in Chapter 1 of this report, the new legislation has triggered the initiation of infringement procedures by the European Commission against Hungary. The restrictions imposed by the new legislation have been also criticised by civil society actors and UNHCR.341 The Venice Commission concluded that Hungary should repeal the law as it violates the freedom of expression and the freedom of association of NGOs.342 In Slovakia, in July 2018, an amendment to the Slovak Act on Asylum 343 entered into force, establishing that during the asylum administrative proceedings, an applicant, their legal representative or guardian, may be also represented by experts, holding a second-level law degree, from authorised non-governmental organisations that provide legal assistance to foreigners as legal entities. Prior to the amendment, such experts would act as individuals, not as representatives of a legal entity, while representing foreigners in administrative proceedings.

In Croatia, iin August 2018, a public tender was launched for the provision of free legal assistance in the asylum procedure. In addition, a list of free legal aid providers for the first-instance procedure was updated. In July, the Ordinance on the Free Legal Aid in the Return Procedure entered into force. The Ministry of Interior published a Public Call for Applicants of Administrative Courts in Zagreb, Split, Rijeka and Osijek for the provision of legal assistance to third-country nationals in the return procedure.344

In Greece, tthe Asylum Service completed the Register of Asylum Service Lawyers; lawyers were allocated at Regional Asylum Services.345 Similarly, in Malta a new agreement was signed with the Legal Aid Unit (within the Ministry of Justice, Culture and Local Government) with the aim to ensure the provision of free legal aid by lawyers from the government pool in appeals before the Refugee Appeals Board for negative asylum decisions and Dublin transfers or before the Immigration Appeals Board for detention orders. In Sweden, a slight increase in the number of public counsels appointed by the authorities was noted in 2018, as a result of the judgment C-404/17 of the Court of Justice of the European Union.346 This judgement limited the possibilities to assess an asylum application as clearly unfounded. As asylum applications, in some cases, cannot be processed as clearly unfounded any more, a legal counsel now needs to be appointed.

Action was also taken in a number of EU+ countries in regards to the provision of legal assistance to unaccompanied minors and other vulnerable groups. In Latvia, the State Border Guard, in cooperation with the State Inspectorate for the Protection of Children's Rights, developed guidelines on Ensuring representation of foreign unaccompanied minors and asylum seekers and cooperation with authorities involved347 to ensure the effective representation of unaccompanied minors during the asylum procedure and to establish main lines of cooperation between authorities involved in the asylum process.

In the United Kingdom, the Lord Chancellor introduced, in July 2018, an amendment to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) to bring unaccompanied minors back into the scope of legal aid for immigration matters.348 In this regard, a new guidance on legal aid for unaccompanied minors was also published on August 2018. Moreover, the Bulgarian National Bureau for Legal Aid (national body assigned to provide state sponsored legal aid) and the State Agency for Refugees (SAR) signed a Bilateral Agreement on Legal Aid provided to vulnerable applicants in Bulgaria349. This agreement established an EUR 80 000 project that aimed to provide, for the first time in Bulgaria, legal aid to asylum seekers during the administrative phase of the asylum procedure, albeit limited to vulnerable applicants. The agreement also describes the legal aid covered by public funds, including legal consultation during the interview, legal advice upon the issuing of a decision on the application and legal consultation about the appeal of a decision.

Apart from positive developments in the area of legal assistance and representation, a number of challenges were also identified by civil society actors. One of the main concerns raised points to the insufficient access that oftentimes applicants have either to legal assistance itself or to essential information on legal rights, as reported in a number of countries. In Switzerland, it was reported that applicants in detention do not receive free legal assistance. In addition, critical voices were raised in regards to the option granted to legal advisors to not lodge an appeal if they consider that a case has no prospects of success. This brings applicants in a situation where they have to find other options for legal assistance within a tight deadline.350

In Spain, civil society actors raised critical voices against the lack of sufficient human and material resources in Ceuta and Melilla, emphasising the obligation that Spanish authorities have to provide legal information to third-country nationals that arrive in the territory of the country with the intention to apply for protection. The Spanish Ombudsman also stressed the need to provide individualised, adapted and effective legal assistance, in an accessible language and format.351 UNHCR also noted challenges that have hindered provision of information, mandatory legal assistance, identification of international protection needs, and access to the asylum procedure in the context of land and sea arrivals.352

Similar conditions of insufficient access of applicants to legal aid were reported in Greece.353 A joint document, with the title Legal Aid (Individual Legal Representation in Asylum/Refugee Context) for Migrants, Asylum Seekers and Refugees in Greece: Challenges and Barriers, Legal Aid Actors Task Force, published in January 2018,354 provided an analytical outlook into existing challenges in this area. In both Spain and Greece  insufficiency in the provision of legal assistance with regards to unaccompanied minors has been noted.355 356

Overall, the question of accessibility of legal services provided by national authorities has been reported as an issue of concern. In Sweden, for instance, civil society actors called the national administration to make stronger efforts toward raising standards of quality in the provision of information, particularly concerning the provision of assistance in language and format easily accessible by unaccompanied minors and vulnerable groups.357

Finally, one of the main challenges EU+ countries face in the area of legal assistance and representation is the insufficiency of human and financial resources, as reported by UNHCR in Italy. In January 2019, UNHCR made a submission concerning the execution of the judgment by the ECHR in the case of Sharifi and Others v Italy and Greece.358 In it, UNHCR acknowledged the efforts made by the Italian authorities to implement the judgment in relation to access to the territory and to international protection procedures for asylum seekers arriving to Italian Ports. However, UNHCR highlighted a number of legal and practical issues that continue to be of concern, especially with regard to the provision of legal assistance and representation by NGOs. The lack of funding and the fact that targeted assessments of arrivals at Border Control Ports are not carried out systematically, have created a decline in terms of both availability and quality of the services provided by these organisations, and consequently, affect applicants for protection at the borders. In this context, UNHCR encouraged Italian authorities to adopt measures to guarantee access to the territory and ensure the provision of legal assistance by competent organisations.

 

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337 CZ LEG 01 : Act No 258/2017 Coll.
338 CH LEG 01: AsylA.
339 The AnkER-Centers (AnkER-Einrichtungen) is a project established in three German Federal States (Bavaria, Saxony and Saarland) that intend to bring together all authorities involved in the asylum procedure. For more information on the project please see: BAMF, Press release : Launching the AnkER facilities (in German).
340 Finnish Ministry of Justice, Policy Brief 33/2018 (in Finnish).
341 UNHCR, UNHCR Observations on the Legislative Amendments Adopted in Hungary in June & July 2018.
342 CoE, Venice Commission, Hungary - Section 253 on the Special Immigration Tax of Act XLI of 2018 amending certain tax laws and other related acts and on a Special Immigration Tax.
343 SK LEG 02: Act No. 198/2018 Coll. More information at: Ministry of the Interior, MPs approve new asylum rules.
344 EMN, EMN 24th Bulletin.
345 Civil society actors welcomed this development, but described the effectiveness of this Registry still limited. See for example: AIDA, Country Report Greece, 2018 Update.
346 CJEU, C‑404/17.
347 Ministry of Welfare, State Inspectorate for the Protection of Children's Rights, Guidelines for ensuring representation of unaccompanied minors and asylum seekers and for cooperation among the authorities involved (in Latvian).
348 For more information of this reform, please refer to the full statement: UK Parliament, UK Justice Update: Written statement - HCWS853.
349 National Legal Aid Bureau, Call for tender for lawyers for project work (in Bulgarian).
350 Asylex, Switzerland, Input to the EASO Annual Report 2018.
351 Fundación Cepaim, Input to the EASO Annual Report 2018Ombudsman of Spain, Input to the EASO Annual Report 2018Spanish Commission on Refugee Aid / Comisión Española de Ayuda Al Refugiado CEAR, Input to the EASO Annual Report 2018.
352
 UNHCR input to the EASO Annual Report 2018. See also: AIDA, Country Report Spain, 2018 Update. On challenges on legal assistance in the context of sea arrivals, see: National Mechanism against Torture (MNP), Follow up of the MNP visit to the CATE in Puerto de Motril (in Spanish), National Mechanism against Torture (MNP), Follow up of the MNP visit to the first assistance and immigration detention facilities in Puerto de Motril (in Spanish). National Mechanism against Torture (MNP), Follow up of the MNP visit to the CATE in Crinavis, Puerto de Algeciras, San Roque (Cádiz) (in Spanish). 
See also: Ombudsman of Spain, The boat arrivals in the Mediterrenean: The situation and challenges for immigration policy (in Spanish).
353
 AIDA, Country Report Greece, 2018 Update, p. 111; UNHCR, Greece 2018 Country Report: Inter-Agency Participatory Assessment Report.
354 For further information, see the original document: Legal Aid Actors Task Force, Legal Aid (Individual Legal Representation in Asylum/Refugee Context) for Migrants, Asylum Seekers and Refugees in Greece: Challenges and Barriers.
355 Spanish Commission on Refugee Aid / Comisión Española de Ayuda Al Refugiado CEAR, Input to the EASO Annual Report 2018AIDA, Country Report Spain, 2018 Update, p. 48.
356 AIDA, Country Report Greece, 2018 Update, p. 100.
357 Save the Children (Sweden Office), Input to the EASO Annual Report 2018.
358
 ECtHR, Sharifi and Others vs Italy and Greece, ECLI:CE:ECHR:2014:1021JUD001664309
             ECHR: Court ruled on the expulsion of Afghan and other countries migrants from Italy to Greece.