Last refuge – the unsustainability of practising refugee law in New Zealand (Part 2)

In a recent edition of Law News (Issue 22, 7 July 2017), we raised the question of why many of the country’s refugee law practitioners are turning their backs on this area of law, despite a professed love of the clients and the work.

Anyone who read the previous discussion of the many unique frustrations refugee practitioners face and the general thanklessness of their work will no doubt understand that for some, in spite of an ongoing desire to assist those in need – there is a breaking point. The relentless demands, the incompatibility with having a life outside of work, the constant discouragement and the lack of adequate funding simply do not add up.

Lawyers to whom we spoke explained that refugee clients tend to have a lot of mental health issues – they have suffered trauma in their home countries and often have psychological issues that need to be addressed before they can present their claims. “You end up spending a lot of time running around setting up psych appointments and getting psych reports,” states one lawyer.

“About half of our clients would have issues that sit somewhere along the mental health spectrum,” says Convenor of ADLS’ Immigration and Refugee Law Committee, Deborah Manning. “It is hardly surprising – by definition, a refugee is someone who is in fear of serious harm if they return to their home country – it is no wonder they are stressed. The decision-makers pay lip service to acknowledging the stress clients face but don’t adapt or modify their processes accordingly.”

And the emotional toll is not limited to those seeking refuge, it seeps through to their lawyers also, especially with the additional “non-lawyer” burdens and inevitable involvement in their clients’ lives, hopes and fears.

“This kind of work does affect you personally,” notes one former refugee practitioner. “Although that can be a problem with any type of legal work, the increased unpredictability in this area just adds to an already stressful situation.”

“We had a number of clients attempt suicide which affects you deeply too – it can be a dark area to practise in. It is very draining and demanding because the stakes are so high. I remember a senior practitioner saying to me that it is the closest thing we’ve got here in New Zealand to death row cases – in some cases, if the refugees’ applications are not successful and they get sent back to their home country, that could literally be the end for them. That responsibility weighs very heavily.”

“Seeing people at their lowest, while they are having to relive the most traumatic experiences of their lives – there is no end to the need, and you end up exhausted,” agrees another.

“Doing this kind of work is all or nothing. It involves a unique set of skills and is very demanding and relentless – churning out all of the work according to the time cycles required by the RSB and the IPT makes it almost impossible to integrate refugee work into a wider practice.”

Immigration lawyer Simon Laurent took his last legal aid refugee case in 2005, then let his listing lapse. Since then, he has done very little work in this area apart from a few privately-funded cases, the last of which he did in 2013.

“I’m still doing immigration law – it’s what pays,” he says. “I also run a practice with a number of solicitors working in it – the exigencies of needing to run a practice mean that it’s not really affordable to do refugee law. Most of the people I know who are working in this area are sole operators or are running their practices in a way which I would describe as scary – they are hanging on by the skin of their teeth.”

“For me, the main change came about when I had kids – between the demands of my client base coupled with the demands of children and getting paid very poorly for what I was doing, it became impossible to carry on,” says one of the lawyers with whom we spoke, who is now no longer working in the area. “You can work your fingers to the bone doing refugee work but because it’s all legally aided, and you have to jump through so many hoops to get that legal aid, it is hard to make it work. If I was going to be away from my children for work, I had to maximise my time and my earning capacity.

“If I could have continued to build my practice in this area and sustained it, I would have done so because I loved it. But I couldn’t. You end up being in boots and all and getting burnt out. It’s an incredible area to work in, but it’s an impossible area too.”

“Immigration law is one of the most interesting areas of the law, and refugee law is a critical part of that, dealing with matters fundamental to people’s survival,” says Mr Laurent. “One of the biggest benefits is the satisfaction in seeing the massive relief of people who have learned that their application has been successful and that they are safe. You can go for weeks and months sometimes and things look pretty bleak, but then an approval comes through and makes it all worthwhile.”

A colleague who has moved into other practice areas but still misses refugee law, says, “It’s a real honour to be in the role of supporting these people through their journey. You get to interact with people from multiple different cultures, to gain insight into their lives and to learn about many different political situations.”

“And, if you do a good job of it, you end up being able to help people achieve the most significant turn of events in their lives. Being in such dire need, and seeking and achieving safe haven from a government – I can’t imagine anything huger than that. To be able to help them do that is amazing. But the path to get there is exhausting.”

So, is there any way to address these problems and help those who still want to help? What needs to happen for the situation to improve? Would such changes be sufficient to retain good people in this vital practice area, entice people back or to encourage newcomers to consider it?

“I am not sure,” confesses one of the lawyers with honesty. Another agrees: “It is so hard to say what needs to improve as so much of what would need to change seems impossible – I don’t really know how it can and I just ran out of hope.”

Others offered more concrete suggestions, although it seems they have made these many times in the past, to little avail.

“A better understanding of counsel’s role and being given more respect for what we do would help,” says Ms Manning. “Also, a better understanding of the trauma that clients face and that this can require more time to prepare for hearings.”

A change in RSB processes

Mr Laurent considers that the dearth of people working in this field is made worse by problems inherent in the system as they juggle their caseloads against the tight timeframes while not getting enough legal aid: “It’s a systemic issue that there are not enough people doing this work and they’re underfunded.” While more funding would obviously help, he also thinks the approach to processing refugee cases at first instance needs to be drastically altered to reduce the length of interviews with RSB officers.

When he first started doing this work, an interview might take three or four hours, whereas they can now take up to two days. He says that the officers spend a lot of time asking questions and going over information which has already been provided. “There is a lack of flexibility and pragmatism, or perhaps the policies which the officers have to follow are unreasonably burdensome, which leads to an inability to make decisions efficiently.”

A change in legal aid processes and funding

“If the legal aid system became more reliable, that would help matters,” says one practitioner. “If legal aid grants were more realistic, if there was less politics about paying money to help people who many people don’t even think should be here in the first place, then there would be less stress,” says another.

Support for refugee claimants

“If there were access to more support for refugee clients in the wider community so that they’re not sleeping in people’s garages or having mental health breakdowns, and so that their legal adviser was not the one having to call the CAT helpline when they said they were going to kill themselves, that would help take the extra load off practitioners,” agrees another. “The social work side of things is not a role we’re supposed to be doing, but you have to when you’re the only link a person has.”

Support for refugee law practitioners

One ex-practitioner points to the need to address the expectation that lawyers will don multiple hats as required: “If there was more support for the non-legal work for asylum seekers – if there were somewhere you could send your clients and know that their other needs would be looked after and supported, then you could focus on their case better.”

Ms Manning says that a better accommodation of family-friendly work practices for those lawyers with children (and many of those practising in this area are women) would greatly assist too: “In the past family-friendly working hours were accommodated, but I was then told that this no longer makes business sense and will only be allowed if justified on a case-by-case basis. Some women have just left because it is too hard to make it work.”

She says that a way of “not allowing things to get to crisis point” needs to be found. “Hearings are like shows and you have to be ready for that, but there should be ways of relieving the stress.” She applauds a process set up in 2015 whereby a practitioner can confidentially request “a bit of breathing room” from the IPT Chairman. Although she had a “false start” the first time she tried to use the process with the Tribunal (no respite was granted despite being offered after a series of client suicide attempts), she considers the model is a good one and is now working, due to the current Chair of the Tribunal.

Attracting more lawyers to the practice of refugee law

Given the uphill battle that is daily life in practice for refugee lawyers, it seems hard to believe that anyone would want to do this kind of work. Yet, those to whom we spoke testified that the rewards are capable of compensating for the hardships, if refugee lawyers feel sufficiently supported by the system – “The meaningfulness of the work does outweigh the frustrations,” as one lawyer puts it. And more people doing this kind of work would certainly help ease the toll on the already depleted and stretched refugee bar.

We asked our interviewees whether they had any advice for young lawyers considering refugee law as a career path, or indeed for established practitioners wanting to give something back. The general consensus was that they would still encourage others to go into this “demanding and rewarding” area, but that changes are needed and better support is crucial.

“If practising refugee law was something which could integrate better into, say, a wider social justice-type practice, I would say ‘Don’t hesitate!’” says one lawyer. “You just can’t get that kind of experience, cultural understanding and insight into international law anywhere else.”

But another, more seasoned lawyer says that she would temper such advice with a caution to “do it when you don’t have kids and you have more time”. “Refugee clients are very high maintenance and you really feel that they need you. I would also advise getting a good couple of years of grounding/training in other legal practice areas first.”

“The positives can outweigh the negatives,” says Simon Laurent. “If you get it right, you can literally save someone’s life by working in this area. It’s life or death because the very concept of persecution involves the person being under a threat of serious harm.”

Deborah Manning says that she is very keen to hear from anyone interested in learning more about refugee or human rights law, or in taking on or assisting with work in this “interesting/not well paid quadrant of the matrix”. “But,” she points out, “it is work that makes a huge difference.”

Given the issues for refugee law practitioners that have been raised in this and the earlier article on this topic (see LawNews Issue 22, 7 July 2017), the ADLS Immigration and Refugee Law Committee wishes to convene a meeting of lawyers practising or interested in practising in this area of law. It is intended that the meeting take place at 12.30pm on Wednesday 30 August 2017, at ADLS’ Chancery Chambers premises in Auckland. For further information or to indicate your intention to attend, please contact the Committee Secretary at committee.secretary@adls.org.nz.

Contact Us
Phone 09 303 5270
Fax 09 309 3726
Email reception@adls.org.nz