Directing the pro bono response to a growing international refugee crisis

The number of people forcibly displaced in the world has reached over 100 million for the first time, with sudden and large scale crises in Afghanistan and Ukraine intensifying an already growing problem. 

Around half of the 100 million displaced people have fled their own countries, with the majority in neighbouring states struggling to cope with the influx of refugees. Alongside this, the number of ‘safe routes’ available for people to travel onwards are narrowing, as immigration laws tighten and legal assistance shrinks.

Against this backdrop, A&O’s programme of work to support displaced people has grown significantly, with the number of hours volunteered by our lawyers nearly trebling in the past year to over 8,200, and collaborations with law firms and NGOs developing across Europe and the U.S.

But as the pro bono response grows, so too does the need to ensure lawyers and firms are deploying resources in the most effective way to support NGOs – the subject of a recent panel discussion at A&O, led by partner Maeve Hanna during Refugee Week. Also on the panel were: 

• Anthony Vaughan, Barrister, Doughty Street Chambers
• Pierre Makhlouf, Legal Director, Bail for Immigration Detainees (BID)
• Lara Finkbeiner, Supervising Attorney, International Refugee Assistance Project (IRAP), U.S. 
• Salomé Cohen, Legal Coordinator, Safe Passage International France
• Frances Beddow, Associate, A&O London
• Michal Gajdus, Counsel, A&O Warsaw 

Political issues impacting the refugee crisis

“For decades, the UN Refugee Convention has established principles for international refugee law,” Maeve Hanna says, “but in a growing number of domestic contexts we’re seeing attempts to depart from these – the recent Nationality and Borders Act in the UK being an example by, in effect, creating a two-tier asylum system and imposing harder standards of proof of refugee status.”

The wider context to this is governments exploiting anti-migrant sentiment for political gain, says Anthony Vaughan. “We’ve seen it in the UK with the ‘hostile environment’ policy designed to make life as hard as possible for migrants. The plan to send refugees to Rwanda is the latest iteration of that – introduced by the government because, post-Brexit, there is no longer an arrangement with France to return migrants crossing the channel from Calais. It remains to be seen whether claims that people will still be protected and able to process their asylum claims from Rwanda are accurate,” Anthony says.

“An equally shocking policy – one that only came to light during the litigation to stop the Rwanda flights – is that if you’re a refugee arriving from Ukraine you have a safe and legal route to come to the UK. But if you come in a small boat from France, mostly people from Africa and the Middle East, you do not. You go onto the Rwanda track.”

The same two-tier system applies to how family members are defined – the Ukrainian scheme allowing reunification for extended family, while for Afghans it is essentially only partners and children. 

“There’s a real need for strategic litigation to expose these issues,” Anthony says, “and it’s an area where law firms can support NGOs trying to intervene in public law challenges.” 

Challenging government policy

This is an area in which Bail for Immigration Detainees (BID) is building a reputation for successfully intervening in legal challenges to government policy in the UK.

“Much of our work is with people facing deportation after serving criminal sentences,” says Pierre Makhlouf, “many of whom were born in the UK or arrived as young children so to all intents and purposes are British – in fact, the first time many find out they’re not is when they discover they’re facing deportation.

“Our work depends hugely upon pro bono help. Working closely with firms over a number of years – as we’ve done with A&O – means we develop a level of understanding around what’s needed, for example to prepare a strong witness statement. It also means we receive objective advice that helps build our reputation as a credible, independent organisation whose legal arguments deserve to be heard – and are increasingly welcomed by the Supreme Court.”

A dismantled U.S. asylum system

An equally strong anti-immigration stance has been building in the U.S. “The previous administration made a very visible impact on immigration, with the ban on people from certain majority-Muslim countries, family separation at the borders, and normalising a very anti-immigrant rhetoric,” Lara Finkbeiner says. “But less visible were the multiple ways the asylum process was dismantled through smaller changes, which are still creating extensive delays and confusion across the U.S. immigration system today.”

This has forced IRAP to think expansively about different legal pathways for people who are displaced or fleeing persecution, for example family reunification routes in Europe.

“Every displaced person deserves to have a lawyer during the most important adjudications in their life, but very few do,” Lara says. “Law firms’ support allows us to stretch our resources, particularly in emergency situations like Afghanistan, where working closely with A&O enabled us to help four or five times the number of people get to safety.” (Read more about A&O’s Afghanistan work.)

Supporting family reunification routes 

Across Europe, A&O has joined collaborations of law firms and NGOs in France, the UK, Netherlands and Germany to help Afghan nationals join families already in these countries – a process that, despite its complexities, in usually not covered by legal aid.

“We have 50 pro bono lawyers from 12 firms – including A&O – working on individual family reunion cases in France,” says Salomé Cohen. “Cases like a mother separated from her child during the chaotic evacuation of Kabul airport – we are working on a visa application for her son to be able to join his mother who obtained refugee status in France.”

“As well as increasing capacity, the large number of volunteer lawyers enables us to support people from the beginning to the end of the process,” Salomé says, “which can make a big difference to the outcome of their case. But there are so many legal and administrative obstacles making it difficult to access safe routes to France – we have to raise these systematic shortcomings and advocate for greater access to safe and legal routes of migration.” 

In the UK, Brexit obstacles are equally hampering family reunification work, but another collaboration of law firms has found a way to scale up support. 

“Before Brexit, most family reunion work took place under an EU system that helped individuals seek asylum in the country where family members were already present,” says Frances Beddow. “But because the UK is no longer part of this, applicants are left using a far more complicated process that they cannot navigate without specialist immigration support – which in turn means they have to apply for Exceptional Case Funding (ECF) for an immigration lawyer.”

But this is where volunteer lawyers are helping. “While entry clearance needs specialist immigration qualifications, applying for ECF is something any qualified lawyer can do,” Frances says. “So it was a perfect opportunity to scale up the capacity of immigration and legal aid lawyers by taking on the preparation of funding applications – helped by our excellent supervisor at our partner NGO, Refugee Legal Support. 

“Working together with eight other law firms has enabled us to take on a volume of cases in a coordinated way – far beyond what a single firm could cover. That also generates a huge amount of data which is very valuable for advocacy.”

Responding to the latest crisis in Ukraine

The impact of a sudden refugee crisis is something A&O’s offices in Central and Eastern Europe have had to mobilise for quickly, as Warsaw counsel Michał Gajdus explains. 

“During the first days of the Russian invasion, more than two million refugees fled to Poland. Nobody was prepared for that and no single entity could have handled it alone, so a big group of us at A&O joined the efforts of the Polish Bar Association to assist with the legal challenges refugees might face. 

“Overall, nearly 1,500 lawyers volunteered in Poland, offering advice on issues like work permits and accommodation. Very few of us knew anything about immigration law, so a group of NGOs and academics produced an online training programme in 48 hours. The whole response was incredible,” Michał says.

“We also knew there was a gap in legal advice for people wanting to travel onwards from Poland, so we mobilised an international team of 170 A&O lawyers to provide answers to queries from refugees, which we’ve now turned into a practical online tool in English and Ukrainian. It was a way of using the A&O network to be of real assistance to individual volunteer lawyers across Poland, as well as NGOs.” (Read more on A&O’s Ukraine work.)

Pro bono is no replacement for legal aid

There is a note of caution from all panellists, though, about ensuring the pro bono response to refugee crises doesn’t purport to fill the void of state legal aid funding.  

“It’s crucial that we listen to our NGO partners and understand how we can bolster their efforts,” Maeve says, “rather than letting private practice commitment to pro bono become a justification for governments to make further cuts to already inadequate funding.”

“The key,” Salomé agrees, “is not to take on work that could be done by specialist immigration lawyers but to direct these collaborative pro bono resources to intervene where legal aid is not an option.”

The collaboration between law firms is one of the bright spots in all of this, Maeve says, both in significantly increasing capacity as well as using advances in technology to share resources and collect evidence that supports the strategic litigation and interventions needed to challenge government policies. 

“What we’ve seen is a huge desire and commitment from lawyers across so many firms to help during these crises and to ensure we direct our response in the right way. I think that’s incredibly positive and I hope the impact we’re having on people’s lives is a motivation for many more volunteers to come forward and get involved.”