Susheeladevi is a young Sri Lankan Tamil and a failed asylum seeker. Nothing remarkable in that. For the first quarter of 1996 only 7.3 per cent of asylum seekers were recognised as refugees and a further 11.3 per cent granted exceptional leave to remain. Her failure was even less remarkable given that whilst 24 per cent of asylum seekers from Europe were recognised as refugees, none from the Far East were recognised during the same period.

Nor was there any lack of procedural opportunity to fight her case. Susheeladevi was interviewed by the Immigration Service on three occasions. Following a refusal issued on November 1, 1993, a Special Adjudicator rejected her appeal. An application for leave to appeal to the Tribunal was also rejected. Susheeladevi's solicitors sought a judicial review but leave to move was refused in March 1995 and a renewed application to the Court of Appeal was subsequently rejected. Removal directions were finally set for March 30,1996.

Susheeladevi's history of torture met a variety of responses. It does not feature in the correspondence from the Home Office. At her appeal hearing, the Special Adjudicator, John Timmons swept the issue aside:

The application for leave to move for judicial review came before Mr Justice Sedley. He agonised over the case, eventually concluding:

" . . . as always with a heavy heart in a case where it is quite clear that the applicant has suffered dreadfully at the hands of the authorities at some stage of her life in Sri Lanka, it is not possible in my judgment to discern an arguable error of law in the Special Adjudicator's decision. There is no more that the law can do to protect the applicant . . ." 2

"If one looks at the medical report and the charts which the doctor has prepared, it is clear that the vast bulk of the other injuries are on the limbs . . . the legs and the arms . . . sometimes on the back and stomach, though it is true there are one or two on the chest and on the breasts."

By the close of the judgment an emotional note had crept in:

"Public money for legal aid is in short supply and is needed by more deserving applicants than the present."

Whatever despair one might feel about these judicial comments and whatever disappointment there might be that the Courts did not find a solution for a torture victim such as Susheeladevi, the judges could not be entirely blamed for failing to be inspired by the case presented to them. It was at best a reflection of Susheeladevi's true case, riddled with discrepancies.

Throughout her three years of struggle Susheeladevi failed to secure protection in this country for one principal reason. None of her lawyers took a statement from her. The significance of a full statement is obvious and cannot be overstated. Arguably this is so for any work undertaken by lawyers but it is crucial for asylum seekers. As the JCWI Handbook points out, inconsistencies will be used to cast doubts on credibility and elaborations of an initially sparse account may well be characterised as exaggeration.3

Susheeladevi states that over the three-year period she received a grand total of less than one hour's "quality time" with her solicitors. That included the only occasion when Susheeladevi saw the first solicitor having responsibility for her case. She states that she was seen with another client and the attendance lasted "barely two minutes". During that time both clients signed Green Forms. Susheeladevi's first and chief asylum statement was written by her at her solicitor's request. The advice given her by her solicitor was to put in "whatever was said at the airport". Susheeladevi states that at no time did her first solicitors or her second or third firm of solicitors, sit with her and take full details of her asylum claim.4

According to Susheeladevi the solicitors were, however, assiduous in one respect. Not only did Susheeladevi sign green forms with each of the solicitors but her recollection is that with the first and second firms of solicitors she signed more than one. She parted company with the first firm of solicitors when they told her that she would have to pay £640 for a barrister to represent her at her immigration appeal and more if the appeal was adjourned.5

No one advised her that the Refugee Legal Centre or the Free Representation Unit might be able to help her without charge, or that there are more junior counsel who might be prepared to act more cheaply.

Susheeladevi states that the second firm of solicitors who did arrange representation for the hearing took money from her on two occasions, requesting payment in cash.6

If the solicitors were a chief cause of Susheeladevi's difficulties, there is little to suggest an energetic attempt by her barrister to repair the evidentiary problems. In the days leading up to the hearing before the Adjudicator, Susheeladevi had a conference with her barrister. No interpreter was arranged, but fortunately Susheeladevi had a friend with her who spoke English. Susheeladevi states that the conference lasted ten minutes and that the barrister "had her bag and was getting ready to go".7

Susheeladevi remembers very little of the Divisional Court stage of her case: "there was no questioning, only barristers talking to each other in English." Whilst the QC is to be congratulated for having recently raised in the Court of Appeal the question of whether a rape and torture victim might have experienced difficulties in pleading the detail of her cause, the cost of employing a QC can scarcely be justified on the basis of so fundamental, yet at the same time so ordinary an insight. The core problem remained outstanding. The single most important voice, that of Susheeladevi, had still not been heard.8

Susheeladevi's story is not simply a tale of indifferent work by the legal profession. Had the fundamental preparation been caried out, the cause of Susheeladevi's evidentiary difficulties could have been explained to the Home Office and if necessary to the Special Adjudicator.9 Susheeladevi was interviewed at the airport on her arrival in 1993. Power situations are a feature of the asylum determination process and the Home Office interpreter exploited this one to the full. He told her that she should not mention anything about army assaults. He said that she should blame the Tamil Tigers or any other rebel groups for the problems she had suffered, but not the Sri Lankan government as the British Government would not like that. He told her to say that she had come as a student because she had trouble with the Tigers. Subsequently as advised by her first solicitors, Susheeladevi struggled to remain faithful to this version of her problems when drafting her written statement.

When Susheeladevi went for her full asylum interview, the same interpreter appeared.10 Her account of what took place is as follows. When Susheeladevi started to explain what had happened the interpreter banged the table with his hand and told her to finish quickly because he had another appointment and that she was not to say so much. Susheeladevi says that the man was so rude she felt he was going to assault her.

When Susheeladevi tried to explain that her mother had raised her family single-handedly the interpreter told her that the fact that her mother was a single woman would reflect badly on her character. He told her to say that her father was in touch and sent her money regularly. He said that if Susheeladevi spoke of the hard life her mother had led keeping poultry and cows to educate her children, this would suggest that the family were working class. When it came to the time for the pages to be read back, the interpreter pretended to read from them, but so far as Susheeladevi could tell, spoke about anything which came into his head advising her that all she had said was written down and that she should simply sign.

Matters were compounded by a third interview with the same interpreter. At no time was Susheeladevi interviewed by only female personnel. By the time of the appeal hearing she was hopelessly caught in a web of contradictory statements.

It was not her lawyers, but doctors and a journalist who saved SusheeIadevi. A journalist liaising with the Medical Foundation for the Care of Victims of Torture learned of her case and working with the Foundation referred her to a fourth frim of solicitors. Once the basic legal work was conducted there was little doubt.about the outcome of the case.11

A month later, Susheeladevi was granted exceptional leave to remain in the United Kingdom. Predictably this is only the end of one stage in her suffering. During March 1996 Susheeladevi was hospitalised together with her baby.12 The long process of establishing herself and recovering her sense of selfworth was at last beginning.

This is not an isolated case nor is there any sign of the problem coming under control. In the context of another case the Home Office commented in a letter of June 11, 1996:

A cynic might comment that it is not difficult to see why inadequate representation is not a major problem for the Home Office. As a failed asylum seeker Susheeladevi is one more statistic supportive of Michael Howard's drive against "bogus asylum seekers". The scale of such practice is difficult to gauge but most immigration lawyers would agree it is significant.14

As an asylum seeker Susheeladevi was more failed than most. She was failed by the Home Office, by the Courts but above all by her representatives. In the field of asylum work it is a truth known to practitioners that legal representation can kill.

David Burgess is a partner in Winstanley-Burgess solicitors

2 It is disappointing that so creative a judge as Mr Justice Sedley, should have refused leave in Susheeladevi's case. The reality of judicial review is that it can afford a way for a troubled judge to pursue justice. Indeed this is the nub of the executive's complaint about the remedy. There is an obligation of "anxious scrutiny" in refugee cases Bugdaycay 2 WLR 606, HL. One evident point in the case as it appeared before the judge was that the Special Adjudicator had not taken into account a material consideration namely the traumatic effects that Shusheeladevi's experiences might have had on her ability to present her case. The precise shape of those events might have been in dispute but the fact that she was a torture victim was not.

3 Fiona Lindsey's "Best Practice Guide to the Preparation of Asylum Applications" (published by the Immigration Law Practitioner's Association) also stresses the importance of the initial statement. See also the Legal Aid Board's Transaction Criteria.

4 Each of the three firms was approached for a copy of any statement they might have taken and for details of attendances on Susheeladevi. No such information has ever been provided. The first firm stated that it is their practice to have asylum seekers write their own initial statements and to work on these subsequently. Susheeladevi says that her statement was never discussed with her by these solicitors. The second firm have given conflicting statements. The third firm commented ambiguously that at the stage that the case came to them (post-appeal and Court proceedings) the "question of (the client's) asylum history was not necessarily relevant" to them.

5 There is no legal aid for appeal hearings.

6 It is interesting to note in the context of the history of the case that one green form claim for payment completed by the second firm of solicitors sought payment of £793.25 profit costs. That amount included a charge for 14 hours 45 minutes attendances. The figure should presumably be read as including preparation. The narrative contains no breakdown but does refer to the taking of "detailed instructions".

7 The length of the conference has been confirmed by a third party.

8 Although Susheeladevi had given evidence at her immigration appeal she had not been prepared for example by having a proof prepared and by being taken through the discrepancies in her case. Furthermore since she was giving evidence at her appeal via an official interpreter she felt unable to detail the critical issue of her problems with the Home Office interpreter.

9 The Adjudicator stated that he did not believe "anything that this appellant says that is material to this question".

10 Susheeladevi was not represented at this interview. It appears that the solicitors had not been notified and Susheeladevi had not understood that she could or should have a legal representative present.

11 When Susheeladevi's statement was finally taken it took 9'/2 hours. Of course it would have been much shorter shorn of Susheeladevi's difficulties in the United Kingdom.

12 In 1994 Susheeladevi met a young Tamil man in a Hindu temple she attended. The couple married in March 1995. A child was born to Susheeladevi at the end of that year.

13 Letter to Winstanley-Burgess. The representative in that case was a former immigration officer convicted of fraud.

14 At the opening of a new immigration appeals centre some time ago I discovered that the man next to me was a solicitor with whom I had only recently had a confrontation over the telephone. This had concerned his failure to take a statement from or make representations in the case of an Angolan woman (another rape and torture victim), who had avoided the removal of herself and her child by stripping in the Gatwick Detention centre. Prior to my discovery the man had been explaining how impressed the Legal Aid Board had been, on his firm's pre-franchise audit. His confidence was well placed as his firm was subsequently awarded a franchise in immigration.

ILPA are well aware of the general problem. They sought unsuccessfully to have a scheme of registration for immigration advisors adopted by Government and have amended their Constitution to have a membership requirement that all applicants should be subject to a formal disciplinary code. These efforts address another area of abuse, namely by immigration agents. The Government's present position as expressed in a letter of June 5, 1996 to ILPA is that "comprehensive evidence" is lacking. It was however claimed that "The Government remains committed to these discussions". A private members bill has been prepared by one MP and the Labour Party have promised action on a scheme of registration. See also Karen Mackay's article in Legal Action, July 1996 (p6). The judiciary have also commented on the damage caused by "unqualified advisers in the immigration field - see ex parte Miranda (1995) - judgment on grant of leave, obiter comments of Mr Justice Sedley.