Last refuge – the unsustainability of practising refugee law in New Zealand

“Refugee work can be both rewarding and heartbreaking,” says a lawyer practising in this most draining and demanding of areas, encapsulating the frustrating paradox that members of New Zealand’s refugee bar have long been voicing, but which seems to have fallen on deaf ears.

Long-time human rights advocate and Convenor of ADLS’ Immigration and Refugee Law Committee, Deborah Manning, thinks much of the problem stems from the fact that few people really understand the complexity of practising refugee law, the “above and beyond” demands of helping clients with non-legal problems, and its “all or nothing” nature.

“Many people don’t even know what a refugee lawyer does. A good refugee lawyer needs to get to grips with the facts of a case, know and be able to apply the relevant domestic and international laws, and have the skills to manage the case,” she explains.

Deborah Manning has been voicing concerns about the undervaluing and underfunding of human rights work in New Zealand, particularly in the area of refugee law, for some time now. And a recent article by Emma Ryan in Australian publication Lawyers Weekly (“Human rights lawyers ‘not valued’ in Aus”, 9 March 2017) suggests that such concerns might not be unique to New Zealand.

Ms Manning and a number of other current and former practitioners in the human rights and refugee law area spoke exclusively to LawNews about their experiences over a period of many months, beginning in 2016. Some of those to whom we spoke no longer practise in the area, others are considering leaving. Some were only willing to comment on the condition of anonymity. However, they hope that speaking out will help shed some light on the challenges and rewards of working in this frustrating yet potentially life-changing area of legal practice.

The refugee bar in crisis – an “uphill battle”

“I ended up taking a break and I was intending to go back to it, but when I looked at what I had been doing, it didn’t make any sense to me to go back,” reflects one lawyer who has ceased working in this area. “It’s just not sustainable in the long term because of the toll it takes on you as a person.”

The dwindling numbers of lawyers who are now willing and able to help represent the vulnerable is worrying to say the least – Ms Manning notes that there are less than ten practitioners doing this work regularly here.

“People are being ground down by the dysfunctional processes and are leaving the refugee bar,” says Ms Manning. “We all blame ourselves – it is easy to tell yourself that if you can’t handle the heat you should get out of the kitchen. But it is a genuine problem that is getting worse not better.”

She told LawNews that she has trained five lawyers who have ceased doing this kind of work, and says that it is “gutting” to spend so much time training others only to see them walk away. And unfortunately, another young lawyer also looks likely to move in a different direction, despite a genuine love of the work. “I’ve reached a point where I am so frustrated with the system,” says a junior lawyer who is shortly intending to take a break from refugee work, not knowing whether she will return.

With the varied legal, emotional and psychological nature of the work, and the feeling of constantly banging your head against a wall, a day in the life of a refugee lawyer can be pretty rough.

“You go into the office planning to attack X, Y and Z but you end up fighting a whole lot of other fires. I know work can be like that for everyone, but the stakes are higher when there is a threat of someone getting sent back to their home country.”

Ms Manning notes that, in the course of any one day, she could be doing any (or often all) of a number of tasks – meeting with clients, applying for legal aid, drafting statements, preparing for interviews, trying to get interpreters, arranging doctor or psychologist appointments, feeding clients who drop in, helping with their other non-legal needs or attending hearings. And that is just on a good day. She stresses that this level of workload is typical for refugee lawyers who “do it properly” – those who are genuinely committed to helping their clients achieve the best outcome.

And before we get into the “blame game” that refugee lawyers take on too much and bring the stress upon themselves, she and the Committee want to “bust some myths”. While our interviewees all acknowledged that stress is high and work/life balance suffers in any area of legal practice, the unremitting and thankless nature of the refugee lawyer’s daily grind is in a category of its own.

“It’s the incessant combination of all of these things which makes it just too much – there are too many negatives and too few positives,” says one former refugee practitioner.

Further, systemic problems such as unachievable deadlines set by decision-making bodies, translation issues with non-English speakers, lack of funding, the need to be both social worker and lawyer to one’s clients, issues with mental health (of clients and lawyers) all must be grappled with, frequently snowballing into an overall emotional toll verging on burnout.

In spite of the frustrations, those who do this work profess to love it – our interviewees universally cited a passion for social justice over financial reward, which drew them to refugee work “because it’s the right thing to do”. This makes it even sadder that some are effectively being forced to quit for other, less all-consuming areas of practice.

Untenable deadlines

One of the first frustrations mentioned was the difficulties of interacting with the primary decision-maker for those seeking refuge in New Zealand, the Refugee Status Branch or RSB. This is the body that hears clients’ claims for refugee status in New Zealand in the first instance, in a seven-hour hearing or “interview” that requires much advance preparation to piece together clients’ stories of persecution and trauma, and the sourcing of evidence and expert reports from here and overseas.

Practitioners told us of administrative demands, “unrealistic” deadlines and a seeming lack of empathy on the part of decision-makers. This, coupled with difficulties with language and more than ordinarily stressed-out clients, sets the stage for a particularly intense environment in which to operate (for both lawyers and clients) than many other hearings-based areas of practice.

ADLS’ Immigration and Refugee Law Committee informally polled a number of lawyers in other practice areas as to how long they are given to prepare for one- to two-day hearings (akin to an RSB refugee interview). Feedback received from employment, family and civil practitioners indicates that, in general, somewhere between three and five months is a usual amount of preparation time (except for urgent matters). However, refugee lawyers get a mere six to seven weeks to prepare for a substantive refugee interview from the time a claim is filed, during which period they need to seek legal aid, get interpreters and prepare and sense-check the client’s statement.

At the point of finalising this article, it was also disheartening to get notice that the Immigration and Protection Tribunal (IPT or Tribunal) was intending to start setting down matters for hearing without consulting practitioners as to their availability, while also shortening the timeframes for preparation. One lawyer to whom we spoke had received three hearings set down for nine weeks out, which was simply untenable in terms of preparation and other work commitments which had already been scheduled. Fortunately, the refugee bar was able to dialogue with the Tribunal to secure a minimum of 12 weeks’ notice in advance of hearings, with the new approach to be trialled and reviewed in due course.

Ms Manning considers these sorts of pressured timeframes to be unsustainable, especially given the state of semi-urgency which inevitably goes with this territory. She notes that the process of preparing for a refugee status interview is a lot more time- and labour-intensive than many (likely including the decision-makers themselves) may realise. We repeatedly heard that the decision-makers seem focused on setting dates for interviews, meeting targets and clearing backlogs, to the detriment of the best interests of claimants and the well-being of this small group of lawyers.

“There is a lack of understanding as to how long things actually take – we are often told that we will have to go ahead with an interview even though a vital piece of information is missing,” said one interviewee. “Deadlines don’t take account of interpreters’ availability (often only out of hours) or the logistical difficulties in getting evidence from overseas.”

Another lawyer says she has been told that “you don’t need more than two weeks to prepare for an interview”, in spite of the unavoidable limitations which make this amount of preparation time woefully insufficient.

“There are so many things we have to juggle. For example, if we get asked for an updated doctor’s or psychologist’s report on a client, this can mean an additional three-month wait on the public system. There is no awareness of this, and even when we obtain reports, chances are they won’t be believed.”

Even with almost 20 years’ experience in refugee law, Ms Manning says that it has taken a long time for her to have the “lightbulb moment” that her inability to cope with the tight timeframes was systemic rather than personal to her.

“Even when I’ve only had one case on the go, the timeframes have still been unworkable. I had always blamed myself, but that made me realise that there were structural problems – some things just don’t fit into those timeframes no matter how hard you try.”

Another common theme from interviewees was that RSB officers “start from a position of disbelief or suspicion” when looking at claimants’ credibility – their stories, evidence from their country of origin, doctors’ reports, etc., and show little sympathy for their present plight and fears for the future.

“There is a tendency to actively look for inconsistencies in a client’s story without an understanding that stress and fears about the future can have a big effect on memory. RSB officers are expecting clients to recall dates which ordinary people wouldn’t remember, let alone when you have been in fear of your life.”

On occasion, lawyers report that they themselves have also been treated disrespectfully when attempting to properly represent their clients, even to the point of being told off in front of clients and interpreters. Comments one: “You get the sense that the RSB sees the lawyers as an obstacle – that it would prefer the clients to be unrepresented – but you’re not trying to make things difficult, you are just trying to represent your clients.”

Interviewees say that they “rarely complain” about this sort of treatment because they are either too busy trying to meet deadlines or because they do not want to sabotage ongoing interactions with the decision-making body, but that the feeling of being poorly-treated and under-valued is very wearing. Ms Manning notes that you do not want to be “at war” with the decision-makers. She suggests that this is allowed to continue unchecked because refugee proceedings take place behind closed doors without much external scrutiny, unlike other hearings which are held in open court.

Legal aid – little help

Another of the biggest challenges refugee lawyers face is inadequate legal aid allowances. Invariably, refugee claimants have little or no money, which obviously requires practitioners to represent them on legal aid rates, but dealing with legal aid grants is universally described as “a real barrier” and “a constant battle”. Interviewees say that they end up doing a lot of pro bono work because the legal aid grants in this area are not realistic.

“Tight deadlines mean that you have to start preparing the case before you know whether you’re going to get paid. If the claim for legal aid is declined, often you feel morally obliged to continue on regardless – one of my colleagues has been known to do entire cases for nothing.”

Another practitioner relates a situation where she was still waiting on legal aid and was told by the RSB that an interview would simply proceed without her if she was not ready to front up.

Simon Laurent, an immigration lawyer who used to also do refugee work, describes the amount of work required just to apply for funding as “really significant”. “In return for that, funding would often be declined because they’d already determined that the case was without merit, a decision which you would have to appeal. It was just a nightmare – the remuneration was always lower than what was required, or the full amount of hours was not able to be claimed.”

“You can apply for an amendment to the grant, but given the time and paperwork involved, often it is faster just to do the extra work for nothing,” says a former practitioner with whom we spoke. “A level of resentment comes in though when this happens a lot.” “There is a level of mistrust which means you are starting from behind the eight ball right from the beginning,” said another. “It’s not like there are vast numbers of people making these applications, but it is still a fight every time.”

One lawyer explained that an employed lawyer doing this type of work can, over time, become “dis-incentivised” from representing refugees on legal aid because he or she becomes unable to meet the firm’s billing targets. “Thus, their own continued employment or ability to gain promotion is in the balance.” Simon Laurent agrees that people truly wanting to continue doing this kind of work would need to “either be working from home with very low overheads or work in a well-heeled firm with partners sympathetic to this kind of work, who were prepared to subsidise the taking of some refugee cases with income from other practice areas”.

Deborah Manning says that she prefers not to talk about funding pressures, “because it’s not all about that”, but notes that the demands of the system mean that refugee lawyers often have to work without knowing whether or not they are going to get paid. “The RSB and the IPT [Immigration and Protection Tribunal] effectively say it’s our problem and in a sense that’s right, but not when it’s a systemic issue. When it affects the whole system, we all need to talk about it. They wouldn’t expect to prepare for and conduct a hearing or interview unpaid, yet we are expected to do just that.”

Identity crisis

The problem is exacerbated by the fact that a lot of the work done by refugee lawyers is not covered by legal aid and so is not able to be funded at all. That is because a lack of support for refugee clients in the wider community means that much of the lawyers’ work falls outside their “lawyer hat”, and comes more within what should be the remit of a social worker or counsellor. Also, as clients tend to be vulnerable and isolated, those with whom we spoke describe a “sense of responsibility” that this engenders in the lawyer, leading to an unavoidable degree of involvement in clients’ lives.

One interviewee estimates that, given the additional social work-type tasks she had to do, she was “able to bill about a third of the work that I did”. “It is very hard to say no, so you end up doing an enormous amount of work for which you know you are never going to be compensated.” “You end up being a one-stop shop for all of their social work needs,” agrees another interviewee. “There is no one else who can help them and if you want to present their claim properly, they need to be in the best, most unstressed state possible.”

Although there used to be a social worker attached to the RSB, this was deemed surplus to requirements – now, the system expects lawyers to fill the breach. “In the recent past, Immigration New Zealand has asked me to arrange things like baby bottles, client accommodation and WINZ applications,” says Ms Manning. “It’s not uncommon for us to feed our clients when they come in to the office or to set up doctors’ appointments for them. And we have to do it – how will our clients be able to instruct us if they haven’t got anywhere to stay or anything to eat or if they are unwell?”

In the final part of this article (which will feature in an upcoming edition), we will look at what, if anything, might be done to mitigate these systemic frustrations and difficulties. 

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