How Do Legal Aid Cuts in England and Wales Impact LGBTQ+ People Seeking Asylum? Perspectives from Providers and Directly Affected People – Springer

The UK has historically been ahead of the curve in providing legal aid to its citizens (Smith & Madge, 2023). The Poor Prisoner’s Defence Act of 1903 established the first state-funded legal aid system for trials on indictment (Butler & Butler, 2000); and in 1949, the Legal Aid and Advice Act made legal aid readily available to those who could not afford it (Legal Aid and Advice Act, 1949). This Act replaced “a piecemeal system of providing assistance to people who could not afford to access the courts or pay for advice from a lawyer” (Smith, 2019, p. 1). Considered transformational, the Act was intended “to shift the balance of power within society and provide justice for the many, not the few” (Smith & Madge, 2023, p. 3).

Since its initial passage, the Act has undergone several revisions, and over the last two decades, there have been doubts about its capacity to meet the needs of the individuals it is intended to serve. For instance, when the Act was first passed in 1949, 80% of the population was eligible for free services, and by 2007 it was 29% (The Bach Commission, 2017). The steep decline in the eligibility for legal aid services was in part motivated by the budgetary cuts made during the first decade of the 2000s (Singh & Webber, 2010). These cuts were exacerbated by the implementation of LASPO in 2012, which reformed the legal aid system in order to reduce its cost burden. Although the United Nations Refugee Convention of 1951 and its amendment in the protocol of 1967 established the right of individuals to seek asylum (United Nations High Commissioner for Refugees, 2010), LASPO intensified the challenges that people seeking asylum already faced when attempting to access free and quality legal aid in England and Wales (Gauci et al., 2023).

For instance, Refugee Action (2018), a London-based advocacy organization, conducted a study of 92 organizations and found that nearly 90% reported finding it more difficult than 6 years ago to find referrals for asylum clients. Two major non-governmental organizations, which together served approximately 20,000 people seeking asylum annually, also closed their doors in 2009 and 2011 (Refugee Action, 2018). This has raised grave concerns among legal advocates that people seeking asylum currently encounter legal aid deserts in the UK (The Law Society, 2022). In fact, the Public Law Project (2023) has initiated legal proceedings against the Lord Chancellor, arguing that they are in breach of their constitutional duty to make legal aid available for immigration and asylum issues. While legal aid for asylum was technically protected under LASPO, it introduced a fixed fee scheme that decreased the number of hours a solicitor could be remunerated for their work; that is, from 40 to 5 h for an initial asylum case (Robins & Newman, 2021). However, 5 h is considered insufficient for offering the legal counsel that is needed to navigate complex asylum processes (Wilding, 2021). Despite these growing concerns, the UK government, in response to a report by the Women and Equalities Committee (2023), has denied that access to legal advice or representation for people seeking asylum is inadequate.

The absence of quality legal aid during the initial asylum application process, and any subsequent appeal, can adversely impact an individual’s integration, as well as their overall health and wellbeing (Gauci et al., 2023; Refugee Action, 2018). Currently, under the UK asylum law, most people seeking asylum are unable to work, making the ability to start their lives contingent upon being granted asylum (Dwyer et al., 2016). Furthermore, only when a person seeking asylum is granted refugee status will they be able to rent an apartment, open a bank account, obtain a driver’s license, and receive social welfare benefits (Grant, 2020).

The challenges encountered by LGBTQ+ people seeking asylum further emphasize the critical importance of being able to access legal aid services. Applying for asylum based on persecution because of one’s SOGI only became formally recognized in the UK in 1999 (UK Lesbian and Gay Immigration Group [UKLGIG], 2013). Furthermore, “discretion reasoning,” which is used to refuse asylum on the basis that an individual could avoid persecution in their country of origin by “being discreet,” remained a formalized practice until 2010 (UKLGIG, 2013). The legal challenges experienced by LGBTQ+ people seeking asylum can prevent this group from gaining protection from a lifetime of persecution. Prior to migration, many LGBTQ+ individuals face victimization by family, community members, and state actors, and oftentimes cannot rely on the police or legal systems for assistance or protection (Alessi et al., 2021; Yarwood et al., 2022). Once in the host country, they may encounter homophobia and transphobia from diaspora communities and intersecting forms of stigma and discrimination from host communities (Alessi et al., 2021). Given the difficulties in accessing practical, social, and emotional support, LGBTQ+ people seeking asylum may have difficulty integrating, placing them at disproportionate risk for mental health issues (Fox et al., 2020).

Additionally, for an LGBTQ+ person to gain asylum, they must “prove” that they are lesbian, gay, bisexual, or transgender and were persecuted in their country of origin because of their SOGI or are likely to be should they return (Connely, 2014). One of the key ways an LGBTQ+ person seeking asylum provides proof of their SOGI is by sharing their personal narrative (testimony) about their experiences as an LGBTQ+ person and describing their fear of or previous experiences of persecution (Connely, 2014). However, research has consistently demonstrated that in the UK, Europe, Canada, and the United States, LGBTQ+ people, in order to meet the expectations of Home Office personnel or asylum officers, feel compelled to use unfamiliar language and terms to describe their SOGI, come out before they feel ready to, or provide evidence (e.g., photos) that shows they are part of the “LGBTQ+ community” even if they do not see themselves as a part of this community, or truly feel connected to it (Alessi, 2016; Akin, 2019; Giametta, 2020; Mulé, 2020; UKLGIG, 2018). Thus, establishing credibility may require aligning with stereotypes that asylum officers can attribute to the LGBTQ+ community (Kahn & Alessi, 2018). Deviation from these rigid ideas, many of which are based on white/colonialist/Western views of sexual orientation and gender identity, may place individuals at risk of having their claims refused (Berg & Millbank, 2009; Bruce-Jones, 2015; Millbank, 2010). The focus on proving one’s SOGI may mask other non-SOGI-specific experiences that could also serve as grounds for asylum, as in the case of lesbian and bisexual women who have experienced gender-based violence (Dustin, 2022).

Moreover, the immense challenge of proving one’s SOGI is sustained within, and reinforced by, the “culture of disbelief” around asylum that permeates the Home Office. The culture of disbelief not only reflects anti-refugee and anti-migration attitudes but also undergirds presumptions of “fakeness” in SOGI claims, habitually casting doubt on these claims and co-producing a culture whereby authorities attempt to purportedly filter out disingenuous claims (Ferreira, 2023). Although having quality legal representation has been shown to be a key protective factor for LGBTQ+ people seeking asylum (Alessi, 2016; Danisi et al., 2021), finding such representation remains a major challenge in many countries, including England and Wales. According to a report from Brighton & Hove LGBT Switchboard (2018), a Brighton-based LGBTQ+ community organization, challenges with the legal system have been identified as a key barrier for LGBTQ+ people seeking asylum. Because of the difficulties of proving one’s SOGI in accordance with the in-country standards, LGBTQ+ people seeking asylum require sound legal guidance. For instance, there are cases where the Home Office’s assessment of risk to the individual in the country of origin (e.g., whether they could and would conceal their sexual orientation and why) does not reflect current legal positioning (as specified in the Supreme Court’s (2010) decision of HJ Iran v. SSHD) or is erroneously made (Dustin, 2018; UKLGIG, 2018). Consequently, a claim can be refused, indicating that quality legal advice is crucial for assisting an LGBTQ+ person seeking asylum with the appeal process.

The experiences of LGBTQ+ people seeking asylum can be illuminated through the lens of structural violence, a term coined by sociologist Galtung (1969). The term provides a lens through which the longstanding consequences of structural oppression, including unequal access to economic and political power, resources, and legal rights can be examined (Farmer et al., 2006). In recent years, structural violence has been defined as “the avoidable limitations that society places on groups of people that constrain them from meeting their basic needs and achieving the quality of life that would otherwise be possible” (Lee, 2019, p. 124). Galtung, who used the terms structural violence and social injustice interchangeably, maintained that structural violence equates with the same type of suffering that comes from personal violence. Yet, unlike physical or psychological violence—a direct form of violence committed by an actor or actors—structural violence is difficult to identify because it is indirect and therefore cannot be linked to a specific person or persons (Galtung, 1969; Lee, 2019). Individuals may not even be aware that structural violence is occurring, because it is “essentially static” and “as natural as the air around us” (Galtung, 1969, p. 173).

Structural violence is used to exercise power over individuals and constrain their agency (Farmer et al., 2006); it can be political, economic, religious, cultural, or legal in nature (Lee, 2019). In terms of policy specifically, reductions in legal aid funding over the years, combined with the enactment of LASPO, the Nationality and Borders Act (2022) (NABA), and the Illegal Migration Act (2023) (IMA), can be conceptualized as structural violence. NABA created changes regarding the standard of proof for asylum claims. Prior to NABA, people seeking asylum had to prove a “reasonable degree of likelihood” of persecution to be granted protection. However, NABA raised the standard, requiring that evidence must satisfy the “balance of probabilities,” or that it is “more likely than not” that the person has the “characteristic” that puts them at risk and fears persecution because of this characteristic (Home Office, 2023b). This creates a disproportionate burden for LGBTQ+ people seeking asylum, who must meet higher thresholds when it comes to proving their SOGI (Mermaids et al., 2021; NABA, 2022). With the standard of proof raised, the Home Office has the potential to refuse asylum to even more LGBTQ+ individuals, suggesting there will be more appeals. Appeals will also be subjected to a higher standard of proof, which suggests that more asylum claims may ultimately be denied. Furthermore, NABA has decreased the amount of time one has to gather evidence for an appeal, and evidence submitted after deadlines holds less weight. This is also detrimental for SOGI claims, which require evidence that is difficult to procure, such as letters of support from friends or family in their country of origin (Mermaids et al., 2021; NABA, 2022).

The difficulty in claiming asylum for LGBTQ+ people will also likely be exacerbated with the recent passage of the IMA. The Act initiated drastic procedural changes to the inadmissibility of asylum claims based on an individual’s mode of arrival to the UK. According to the Home Office (2023a), the IMA goes “considerably further than any previous immigration bill.” If fully implemented, the Act would create a legislative framework so that people seeking asylum who enter the UK via “irregular” means (e.g., by small boat) will have their claim deemed “inadmissible,” and be subjected to immigration detention until they can be removed to a “safe third country” listed in the Act. Yet, it has been well established that LGBTQ+ people seeking asylum, due to various socio-structural and psychological factors, frequently arrive via “irregular means,” such as passing through one or more countries of transit before reaching their destination (Alessi et al., 2021). Moreover, detainment is an issue in and of itself for LGBTQ+ people seeking asylum in the UK, as they have been shown to experience unsafe conditions in detention centers (Mermaids et al., 2021; Rainbow Migration, 2023). The fear of being removed or detained may deter LGBTQ+ people from applying for asylum, resulting in them living in the UK as undocumented.

Acts such as NABA and IMA contribute to the various structural forces (stigma, prejudice, and discrimination) that tend to racialize individuals, including those identifying as LGBTQ+ , and subject them to border controls in ways that individuals from the Global North are not (El-Enany, 2021; Turner & Bailey, 2022). According to Mayblin et al. (2020), border violence, which can also be considered a form of structural violence, not only creates barriers to seeking asylum but also psychological or physical injury that manifests in the mundane or “every day;” that is, in the person seeking asylum’s attempt to access food, clothing, transportation, and make connections with community members. For LGBTQ+ people seeking asylum, the effects of structural violence may be even more pronounced, as they have difficulty relying on the support of diaspora and host communities to meet even the most basic needs. The current study was guided by the following research question: How do legal and other service providers as well as directly affected people describe and understand the impact of legal aid cuts on (a) the ability of LGBTQ+ people seeking asylum to access legal representation? and (b) the capacity of solicitors to provide such representation?

The study began in January 2023 and involved a collaboration between the first author (EJA) and a UK-based organization, Rainbow Migration, that supports LGBTQ+ people seeking asylum by providing legal advice, practical support, and engaging in policy work. A qualitative research design was used to examine the perceptions of legal providers and social support and mental health care workers (hereafter referred to as providers) to explore how legal aid cuts have impacted LGBTQ+ people seeking asylum in England and Wales. To provide a more complete understanding, interviews were also conducted with LGBTQ+ people seeking asylum in England and Wales (hereafter referred to as directly affected people).

The study included 17 providers who worked in Wales or throughout England (Birmingham, Liverpool, London, Manchester, Nottingham) and nine directly affected people. See Table 1 for the demographics of the study participants. Participants were recruited throughout the UK using purposive and snowball sampling. Rainbow Migration distributed study announcements via email to legal providers informing them about the study. Additionally, the first author sent the announcement to community agencies and also conducted outreach to inform relevant community partners about the study. Participants were also able to refer others to take part in the study.

Inclusion criteria for providers were (a) working as a solicitor (or another type of legal provider such as legal advisor/caseworker), or social support or mental health care worker and (b) having at least 6 months of experience providing legal assistance or support services to LGBTQ+ people seeking asylum in the UK. All but one solicitor provided legal aid services to LGBTQ+ people seeking asylum; this participant worked with this population as a private solicitor. Another solicitor had experience working with this population for 5.5 months but was still included in the study because they could talk about their work with multiple LGBTQ+ people seeking asylum. Inclusion criteria for LGBTQ+ people seeking asylum were (a) being at least 18 years old, (b) living in the UK, (c) having applied or been granted asylum in the past 5 years based on sexual orientation or gender identity, and (d) currently having or previously having legal aid representation in the UK. LGBTQ+ people seeking asylum also had to feel comfortable communicating in English. Individuals were screened before each interview to ensure they met the inclusion criteria. We also interviewed one directly affected person who did not have a legal aid solicitor but wanted to discuss his experiences trying to obtain one. Informed consent was obtained by all participants prior to the interview. Study protocols were approved by the institutional review board of Rutgers University.

Data Collection

Before beginning the interview, all participants completed a brief questionnaire to gather demographic information. Providers also answered questions about whether their work was paid or unpaid, the length of time working with LGBTQ+ people seeking asylum, and the approximate number of individuals served. Directly affected people were also asked about their living situation and whether they were taking medication or receiving counseling for a mental health issue. After completing the questionnaires, participants took part in a semi-structured interview that was conducted via Zoom using video or audio. All but two interviews were conducted with webcams.

Interview questions for providers included (a) describe the biggest challenges faced by LGBTQ+ people seeking asylum in the UK. (b) What are the legal needs of LGBTQ+ people seeking asylum? (c) Describe the impact of legal aid cuts on LGBTQ+ people seeking asylum. (d) What are the service gaps when it comes to supporting the legal, health, and mental health needs of LGBTQ+ people seeking asylum? and (e) what helps ease their overall integration? Interview questions for directly affected people included (a) describe what motivated you to come to the UK. (b) What has it been like to apply for asylum and find legal aid services in the UK? (c) Describe what it is like to be an LGBTQ+ person seeking asylum in the UK. (d) What has helped most in terms of your integration? and (e) what recommendations do you have for people who make legal policies for LGBTQ+ people seeking asylum?

All interviews were conducted by the first author. Interviews lasted between 27 and 57 min for providers (M = 44.12, SD = 8.86) and 32 and 74 min for directly affected people (M = 46.33, SD = 13.19). Two providers working for the same organization were interviewed together, in addition to three providers from another organization, to adapt to their schedules. Providers and directly affected people received an Amazon.com gift card following participation (£20 and £25, respectively). Interviews were audio-recorded and professionally transcribed.

Data Analysis

The data were analyzed using constructivist ground theory (Charmaz, 2014). Constructivist grounded theory relies on similar methods used in conventional grounded theory (e.g., open and focused coding; Corbin & Strauss, 1998) but differs in its epistemological assumptions. As opposed to conventional grounded theory, which views reality as objective, constructivist grounded theory considers reality as being subjective (or socially constructed) (Mills et al., 2006). Thus, constructivist grounded theory acknowledges that interactions between researchers and participants shape the way data are collected and analyzed (Charmaz, 2014).

The second and third authors began the analysis by engaging in open coding of the first five interview transcripts using hand coding and NVivo software (released in March 2020). Then, they met with the first author to create an initial list of codes. These codes were subsequently used, along with the sensitizing concepts of structural violence, to analyze the remaining transcripts. Because the authors did not want to be constrained by the initial codes and sensitizing concepts, the constant comparison method (e.g., moving between initial codes and transcripts to develop new codes and provide additional evidence for existing ones; Corbin & Strauss, 1998) was used to stay open to identifying additional codes and categories. The first, second, and third authors engaged in weekly peer debriefings to refine codes, develop categories, and discuss preliminary themes. They had to reach an agreement before themes were finalized and grouped together to present a cohesive narrative.

To enhance rigor, the first author continually acknowledged how his positionality. He identifies as a white cisgender gay man whose experiences were shaped by having immigrant parents and being a first-generation university student. He has specific privileges including secure immigration status, which among many benefits allows him to travel without being subjected to the same border controls as the directly affected people in this study. It is this privilege, in part, that motivated him to conduct this research, and he attempts to listen without being patronizing and to provide space for participants to share experiences in ways that allow for safety and autonomy. He believes that most knowledge is socially constructed and that one’s values inform all research designs; thus, he considers the strengths and limitations of both qualitative and quantitative research and sees utility in both. To challenge his assumptions and monitor potential biases (e.g., providers would report that LGBTQ+ people seeking asylum face challenges accessing legal aid), he used memos and peer debriefings with the second and third authors, who brought a fresh perspective to the analysis, since they did not contribute to study design or conduct interviews. The second and third authors also continually challenged one another to minimize the influence of their biases on theme development by discussing each other’s assumptions and proposing alternative explanations as themes were identified. They also triangulated data from providers with directly affected people to obtain a more nuanced understanding and kept an audit trail to record all data analytic procedures. Finally, the fourth, fifth, and sixth authors reviewed the final themes. As staff members of Rainbow Migration, their expertise was used to check that evidence supporting the themes highlighted the complexities related to a particular experience or process.

There was consensus among providers that anti-immigrant sentiment and policies restricting immigration scapegoated and dehumanized migrants and people seeking asylum in England and Wales. These policies also created specific barriers to legal aid access among LGBTQ+ people seeking asylum, epitomizing the structural violence wielded by individuals with decision-making power against those without it. Lack of legal aid access resulted in a series of disruptions that not only jeopardized the LGBTQ+ people seeking asylum but also their livelihoods. Obtaining support and assistance from the diaspora and host communities was oftentimes met with hostility and rejection, leaving them in a state of precarity. This sharply contrasted with their expectations of what the UK would be like, after fleeing violence and victimization, or the threat of such, that began at an early age. Drawing on the perspectives of providers and directly affected people, we identified four themes that demonstrated how cuts to legal aid impacted LGBTQ+ people seeking asylum in England and Wales. We used pseudonyms (chosen by the participants themselves) to identify quotes.

Theme One: Making it Difficult to Find Solicitors with Expertise in Working with LGBTQ+ People Seeking Asylum

Having an experienced solicitor who can provide guidance can lessen the burden that those seeking asylum frequently face, as they attempt the process of navigating a web of information and understanding the necessary steps and deadlines involved in making a claim. This process is even more difficult when trying to find a solicitor who is knowledgeable of the complexities necessary for establishing the burden of proof for LGBTQ+ people seeking asylum (i.e., providing compelling evidence for their SOGI and related experiences of persecution that meets Home Office standards). Because a culture of disbelief exists, without this evidence, the claim may be seen as lacking credibility.

Directly affected individuals expressed that the shrinking pool of solicitors, which came about from firms no longer providing legal aid services or closing altogether, left them struggling to find a solicitor to assist with their asylum case. This increased anxiety as well as their sense of urgency, as an asylum claim is more likely to be refused if one waits to file a claim with the Home Office. However, if one cannot find a solicitor, they, understandably, may not want to file a claim. As David, a directly affected person identifying as a cisgender gay man, described:

I think that more solicitors, more law offices, should get into the system, into this network of legal aid. And it would be really helpful if they react more, like, prompt[ly] … and just … be more attentive to details because it’s … a life decision, I mean, this asylum case, it’s a life decision for you.

To find a solicitor, people seeking asylum typically receive a list of contacts for legal aid solicitors from various governmental organizations, but this list often contains outdated or inaccurate information. As Grace, a solicitor, explained: “Those [phone] numbers often don’t work or they’ve changed or you’ve sat on hold for hours on end.” Mike, a directly affected person identifying as a cisgender gay man, illustrated the increased burden on individuals as a result: “They try to help you, but not a lot, you know? They only say something or [send] you some links …you have to do everything else by yourself.”

In fact, after being unable to find a solicitor, one directly affected individual did ultimately have to represent himself. However, since many, if not most, LGBTQ+ people seeking asylum lacked the capacity—in terms of financial resources, legal knowledge/experience, or language proficiency—for self-representation, providers acknowledged potential pitfalls that could further jeopardize the chances of asylum. Peter, a solicitor, elaborated on this risk:

Even just the fact that [the workers within the asylum system] don’t record the interviews correctly and then we have to go through them and correct, sometimes, errors that are of such a magnitude that it could, like, change the entire…entire meaning … and … if [LGBTQ+ people seeking asylum] can’t speak English, cannot do that themselves.

The importance of having qualified representation is also vital because the culture of disbelief among Home Office personnel might be even greater for certain subgroups of LGBTQ+ people seeking asylum. One subgroup mentioned by providers was lesbian women who have been in heterosexual relationships or had a child with a cisgender man. Finn, a solicitor, explained why it is essential for lesbian women applying for asylum to have a solicitor assisting them: “… [Their] claims are often more [complicated] in terms of, for instance, children because of people’s … outdated ideas to start with, ‘You’ve got a child, how can this be that you’re claiming, now, on the basis of your sexual identity?’” LGBTQ+ individuals who are racialized may also face credibility issues, according to providers. John, a solicitor, stressed the need to have a quality solicitor to help with their asylum case:

[If] you’re white from the U.S. … you’re gonna be treated more favorably by the Home Office … than if you are, you know, [for example] a Black man from [Africa] … non-white people are kind of considered less trustworthy …

Additionally, providers discussed that the impact of disbelief could last throughout the asylum claim process, especially if an LGBTQ+ individual was refused asylum by the Home Office on their first attempt. Most asylum claimants are given the right to appeal this refusal, and if the appeal is dismissed at the First Tier (Immigration and Asylum Chamber), there may be an opportunity to appeal to the Upper Tribunal if there is an error of law in the immigration judge’s determination. As John, a solicitor, explained: “If there is a judicial decision, any subsequent application on the same point starts from what the judge said.” Thus, if the initial appeal was refused based on the judge’s claim that evidence was false and insufficient to establish the credibility of one’s SOGI status, subsequent submissions would be subject to the negative start position set by the judge and thus likely to be refused.

Theme Two: Forcing Solicitors to (Re)Negotiate Their Motivation and Capacity for Working with LGBTQ+ People Seeking Asylum

With significant cuts to the remuneration fees for solicitors, providers expressed that this resulted in negative consequences for LGBTQ+ people seeking asylum. Because of the difficulty proving an individual’s SOGI and that they were persecuted in their country of origin because of it, LGBTQ+ asylum cases tend to be complex. Legal aid solicitors are paid a standard fee for 8 h of work; however, providing services to LGBTQ+ people seeking asylum usually requires more than 8 h. Solicitors do have the option of filing an escape fee claim to get paid more than the standard amount but must work two^{Footnote 2} times the amount to get the higher fee. After filing an escape fee claim, however, solicitors might end up working less than 16 h on the case (i.e., two times the standard amount) but more than 8 h; consequently, they will only receive the standard fee. As Josh, a solicitor, stated: “… One of [the] worst things that can happen to a firm that wants to be in profit is, [solicitors] take on a case and [they] just narrowly miss escaping [the] fee.”

Providers expressed that low reimbursement rates and not being able to escape the fee would ultimately reduce the number of LGBTQ+ asylum cases that solicitors accept, or worse—that they would stop providing legal aid services to LGBTQ+ people seeking asylum altogether. As Eric, a caseworker, expressed:

There is a crisis at the moment … the rate hasn’t increased in a decade. There’s like, whole issues with the Home Office and all these things which kind of like, really exacerbate immigration, specifically … I’ve worked with some really excellent solicitors who … are just getting really burnt out.

These policy changes and the social forces resulting from them have forced providers to take on asylum cases that do not require much time so that their firms can make a profit to remain financially viable. As Sally, a solicitor, explained, this can result in “situations where there is cherry-picking of cases.” This may seem like the only solution when firms are worried that accepting LGBTQ+ asylum cases may require them to spend more time and resources than they can provide. For instance, having to hire outside experts to substantiate the SOGI-related issues related to the claim is not only time-consuming but also expensive. Furthermore, these types of financial risks may not be a viable option for solicitors who must wait for payment long after their work on a case. Grace, a solicitor, pointed out:

… I could take on two cases in that time that would get a decision and [I would] get the money coming into the firm …I have a lot of guilt around this because, for the last four years, I had to take a step away from that work.

Patricia, a trainee-solicitor, who currently assists LGBTQ+ people seeking asylum as part of her legal aid caseload mentioned something similar:

When [I go from solicitor-trainee] to solicitor, I will have fee earning targets, and it’s much easier to meet my fee targets if I take on private work rather than legal aid work. So, if I choose to take on legal aid clients, I have to work a lot harder than my colleagues who will be taking on private clients.

The choices that solicitors have to make about which clients they can accept have ripple effects on LGBTQ+ people seeking asylum, who are attempting to navigate issues related to their survival. Not only are they often unable to find a solicitor to take on their case, but even when they do, solicitors may not have the time to devote to it. The situation described by Mina, a transgender woman seeking asylum, provided an example of the cascading impacts of legal aid cuts. She grew up in an orphanage and eventually fled her country of origin in pursuit of safety, reporting facing violence and being unable to receive gender-affirming care while moving through various countries. She thought that when she found a solicitor, she would have some type of reprieve. However, this was not the case:

It was, like, challenging to get in contact with her. She made a lot of appointments, and she didn’t show up and I was so angry because of that, and I lost almost three months [that could have been devoted to my case]. And I didn’t know, like, she’s working on my case or … [not], and I was very angry and facing a lot of anxiety about it.

Theme Three: Compromising the Ability of Solicitors to Build the Trust Needed to Work with LGBTQ+ People Seeking Asylum

Mina’s situation underscored why it is crucial that solicitors are properly remunerated for the time needed to work with LGBTQ+ people seeking asylum. Providers emphasized that when the amount of time solicitors can spend with someone such as Mina is compromised, their ability to build the trust necessary for effectively working with this population is diminished. According to providers, trust can develop when solicitors create an environment that allows LGBTQ+ people seeking asylum to safely recount traumatic experiences, especially those precipitated by their SOGI status. Reflecting on his own experience of having to represent himself after having difficulty finding a legal aid solicitor, Kunstlerkopf, a directly affected person identifying as a cisgender gay man, described the emotional intensity surrounding the process of having to write his statement, highlighting why it is so important for a solicitor to build trust with their clients. He stated: “I think I wrote 40 pages … on my personal statement. But every time I started writing, I was vomiting. … no lawyer wanted to take this kind of work…”

Because many LGBTQ+ people seeking asylum have experienced severe trauma involving their SOGI from an early age, concealed their SOGI to survive, and/or share information about their SOGI only to a few people they could trust, if any at all, it may take time for them to feel comfortable enough to provide important information. Providers continually recognized this and thus talked about the importance of building trust to ensure the success of an LGBTQ+ individual’s asylum claim. For instance, Josh, a solicitor, asserted: “You also need to have a sensitivity towards people’s identity and understand…that you’re asking questions about how people would like to be referred to and how they understand their own identity.” Jack, a directly affected person identifying as a cisgender gay man, explained his own fears about disclosing such information to a solicitor, who is a stranger at first:

…When I talked to [a solicitor], I thought maybe these are people who may not understand … about my sexual orientation … and how [will] they look after me …how [will] they … see …my image … how they ask the questions, how [will] they … attend to me. That’s what I was looking after …

LGBTQ+ people seeking asylum also need to talk about their SOGI according to white/Western expectations of Home Office decision-makers. Since the conceptualization of SOGI differs across cultures and may be entirely incongruent with some, building trust with clients is essential for helping them document information to help their case. For example, Van, a directly affected person who identifies as a cisgender gay man, discussed the experience of talking to his solicitor about the need to prove that his sexual orientation aligns with white/Western standards of what it means to be gay:

[My solicitor] … said to me, ‘…I’m believing you, [but] the Home Office [is] not believing you. [You are not going to prove you’re gay] if you don’t have support from that … community. Go with someone and take a picture.’ But ‘til now, I feel shame if going [to] someone [and saying], ‘Come on, let’s take a picture we’re kissing.’ No, never.

As solicitors prepare claims, they must also be able to help clients stay focused on building a compelling statement and, as necessary, redirect them to obtain the information that will make their cases successful with the Home Office. To do this without conveying insensitivity, they must develop trust with their clients. As Finn, a solicitor, expressed:

The first time you speak to [an LGBTQ+ person seeking asylum], they really might talk to you totally about how upset they are with their family … but [they] also need to know that we do have to address that there’s a failure of state protection, you know, and … what the risk is.

To navigate these complexities (e.g., stigma regarding sexuality and gender, adapting to white/western standards of SOGI, history of persecution), providers recognized that using a trauma-informed approach was essential when working with LGBTQ+ people seeking asylum. According to providers, trauma-informed legal practice with LGBTQ+ people seeking asylum involves being aware of the trauma they have experienced and recognizing that this can affect their ability to navigate the asylum process, especially when sharing their personal narrative. Engaging in a trauma-informed legal approach involves being empathic, listening closely, as well as being available and consistent, which can be challenging when solicitors are attempting to manage their time because of the limitations of legal aid. Audrey, a social care professional, describes how this can add to the time and expertise needed for the asylum claims process:

… [I]t takes a lot of time for people to be able to discuss these things and takes a lot of sensitivity … often, it might take also an expert who is able to take that time and have those discussions in a trauma-informed, sensitive way that helps people kind of disclose their identities and…speak about…that in a legal context, as well.

In fact, having these types of skills highlights the reason why legal aid plays such an important role when working with LGBTQ+ people seeking asylum. Jaz, a legal caseworker, explained: “The commercial lawyer doesn’t [always] have the experience to talk to someone with so much trauma with the respect that they deserve.”

Theme Four: Compounding Life Instabilities for LGBTQ+ People Seeking Asylum

Delays in legal aid access compounded the instability that comes with the asylum process, leaving directly affected people struggling with the effects of structural violence on their day-to-day experiences. Although having a solicitor is not a requirement in order to apply for asylum, individuals might not want to apply until they have one who can guide them through the process. And if an individual does not want to claim asylum without having a solicitor, they will not be able to access government-supported accommodation, since they must have applied for asylum to be eligible. Thus, it is likely that the longer it takes to find a solicitor, the more likely they would be in limbo. When they finally do find a solicitor, who can help move the process with the Home Office along, it is still hard to determine when they will receive a final decision about their status. The long wait for decisions on asylum claims means protracted stays in shared accommodation, where LGBTQ+ people seeking asylum—without having any choice of where or whom they live with—might be placed in hotels or shared rooms in homophobic and transphobic environments.

Several directly affected people reported directly or indirectly experiencing stigmatization and discrimination in their accommodation. Van, a directly affected person identifying as a cisgender gay man, recalled an incident that made him feel unsafe: “I heard some guy [say] … ‘[People who are LGBTQ+] are making hotel disgusting.’ And they attacked [a person], also. You can’t believe it. Why?’Cause he’s LGBTQ.” Leen, another directly affected person identifying as a cisgender lesbian woman, expressed sadness about still having to conceal her sexual orientation while staying at a hotel: “I can’t, like, kiss my girlfriend in the lobby … so, basically … I sometime[s] feel like I’m still in my home, not like in UK, so it’s … a problem …” Moreover, an LGBTQ+ person seeking asylum who leaves their hotel for a couple of days because they feel unsafe may face severe disruptions upon their return. Jane, a solicitor, explained: “…[They] stay with friends or family members for a couple of nights and when they come back, their door’s been locked, and all their belongings have been thrown out and they’ve been evicted for absconding.”

The second major issue discussed by both providers and directly affected people seeking asylum was prolonged financial insecurity. Although people seeking asylum who would otherwise be destitute can receive government support, their weekly stipend is extremely limited. (It also varies whether they are in initial or contingency accommodation [currently under £10] or dispersal [currently under £50)] accommodation). Receiving such a small amount makes it extremely challenging to afford much, including public transportation. Leen also expressed:

… It was hard to have [a solicitor] because all of the lists the Home Office gave us … they don’t do, like, legal aid. And … if we have one, it’s so far away and they ask for [an] interview, like, and we don’t have money to travel so…

Lucas, a legal caseworker, added that insufficient funding also restricted opportunities for integrating into the host community, potentially increasing feelings of alienation:

… [People seeking asylum are] separated from others and then through the, like, lack of money that they get, they’re also, then, separated from kind of the rest of society, itself, especially [in the UK], where almost everything costs money. And commuting back and forth is someone’s half of weekly income.

Providers described a particular paradox that LGBTQ+ people seeking asylum face. Although being in a romantic relationship and being a part of the LGBTQ+ community generally adds credibility to their claims, they do not receive sufficient financial support to take part in social outings. Maria, a mental health professional, illustrated the issue: “… The Home Office don’t give people enough money for people to … go down to Soho and try and meet the impossible standards of the … ideal [LGBTQ+] asylum seeker, anyway.”

Mina, whose situation was discussed above, also described how difficulty finding housing, employment, and a social support system in the UK restricted her freedom to make choices and have control over her life. She stated:

They decide what you eat, they decide where you have to sleep, they decide where you have to go … how much money you have to spend. These are things that [the] Home Office will decide for you until the point they … recognize you as refugee.

The consequences of managing these life instabilities left participants feeling frustrated and hopeless. Directly affected people frequently reported feelings of stress, anxiety, depression, and suicidal ideation as they waited for their claims or interviews. As Mike, a directly affected person identifying as a cisgender gay man, expressed: “And my depression … was so worse, and I felt every plan I had [was] destroyed. I couldn’t live anymore and, you know, it was very difficult for me…” And if LGBTQ+ people seeking asylum are struggling with mental health issues, Audrey, a social care professional, noted: “… [they] won’t necessarily be in the position to problem solve and navigate a very complex legal system.”

Finally, providers pointed out that legal aid cuts not only exacerbate the alarming situation for LGBTQ+ people seeking asylum but also result in the Home Office expending additional financial resources while people await a decision regarding their claim. A way to save resources, according to providers, is to increase funding for legal aid. John, a solicitor, expressed this could lead to a better asylum process overall:

So local authorities and the Home Office are paying huge amounts of money to private business to put [people seeking asylum] up. Whereas, if you fund legal aid, you get well presented and prepared cases. That means your court system goes through quicker because the cases are progressing smoothly … and you can trust the outcome.

To our knowledge, this is the first study to explore how providers assisting LGBTQ+ people seeking asylum and directly affected people described and understood the impact of legal aid cuts in England and Wales on their clients’ lives and on their own lives, respectively. Findings underscore what has already been documented by legal scholars and refugee organizations (e.g., Refugee Action, 2018; Wilding, 2021). First, a dire situation exists when people seeking asylum attempt to find a legal aid solicitor, even in large urban areas like London. Second, people seeking asylum are usually given outdated lists of information, indicating the presence of pervasive structural barriers that can delay the asylum process.

Findings also demonstrate how legal aid cuts imparted structural violence on LGBTQ+ people seeking asylum, constraining their agency and disempowering them as they try to obtain the assistance needed to make a successful asylum claim. Reductions in legal aid also negatively impacted those charged with assisting LGBTQ+ people seeking asylum. Specifically, solicitors are left struggling to meet the demand for legal aid services amid backlog and low remuneration and must make decisions about whether to forego complex, resource-intensive cases, such as those involving LGBTQ+ people seeking asylum, in order to remain financially viable. This demonstrates the subtle effects of structural violence on LGBTQ+ people seeking asylum, shedding light on a process that is not easily identifiable, as obscurity allows the human rights of this group to be violated. Structural violence pushes LGBTQ+ people seeking asylum further to the margins as they navigate life-and-death situations with few resources. The impact of legal aid cuts on LGBTQ+ people seeking asylum, and the structural violence it imparts on them, extends beyond access. Both providers and directly affected people described how challenging it was to find solicitors who have the knowledge and skill to work with this population. This includes the ability to build the trust needed to work with LGBTQ+ people seeking asylum, who frequently share harrowing stories of persecution and may find it challenging to discuss private information about their SOGI with complete strangers in order to establish credibility. Trust between legal providers and people seeking asylum was considered an essential component for effectively working with LGBTQ+ people seeking asylum.

Findings show that cuts to legal aid jeopardize the ability to build this trust, which is paramount for LGBTQ+ people seeking asylum because it aids in establishing credibility. In her qualitative study of LGBTQ+ people seeking asylum in the United States, Llewellyn (2021) referred to this burden of proof as a form of legal violence; the term was coined by Menjívar and Abrego’s (2012), who examined the consequences of harsh immigration policies on the experiences of migrants in the United States. Our results also extend the findings of Danisi and Ferreira (2022). After examining how legal violence was enacted upon LGBTQ+ people seeking asylum in the UK and European Union as they try to “prove” their SOGI, Danisi and Ferreira (2022) indicate that to end this type of violence, asylum systems (and the officers practicing within them) must account for LGBTQ+ people’s lived experiences when making decisions about their claims. This is key when considering the results of our study. LGBTQ+ people seeking asylum are expected to show evidence of being connected to the LGBTQ+ community in various ways, but their ability to fully participate is compromised by the structural violence they encounter. More specifically, the lack of social capital and financial security, compounded by the psychological consequences precipitated by the asylum process, creates multiple barriers to connecting with new people. Furthermore, not having access to a solicitor who can assist with proving one’s SOGI in other ways leaves LGBTQ+ people seeking asylum struggling to provide evidence for their claims.

Indeed, not being able to access a solicitor who has the time and necessary training and experience to assist LGBTQ+ people seeking asylum can compound their life instabilities (relationships, housing, and finances/work) and mental distress. Because people seeking asylum may not want to apply for asylum until they find a solicitor, LGBTQ+ people may be left in limbo. This intensifies their situation because if they do not apply for asylum they cannot receive government assistance, including accommodation, underscoring how lack of access to solicitors perpetuates structural violence and leads to the “postcolonial every day” (Mayblin et al., 2020). That is the state of living in poverty while being exposed to the daily harms of the state, such as not being able to work or even do simple things like making a phone call, buying personal hygiene or sanitary products, or purchasing food one wants to eat.

The daily harms experienced by directly affected people impacted their physical and emotional safety in shared accommodation. Some experienced harassment, while others had to conceal their SOGI in anticipation of being victimized. This warrants immediate attention, given recent strategies such as “Project Maximise,” in which the Home Office moves towards compulsory room sharing for people seeking asylum—sometimes with up to four individuals in a very small room (National Audit Office, 2024). Because of stipulations dictating how long a person seeking asylum can be away from their asylum accommodation without losing it (Home Office, 2023b), directly affected people seeking asylum in our study often had no choice but to remain in unsafe living conditions. They reported this had negative impacts on their mental health, which Mayblin and colleagues (2020) would view as a result of “gradual wounding.” The legal aid cuts, in combination with the harsh effects of the NABA and IMA, and the way these policies and laws directly and indirectly influence LGBTQ+ people seeking asylum in England and Wales have the potential to lead to serious violation of their human rights. The assistance of a legal aid solicitor is often the primary mechanism for dealing with the effects of structural violence caused by these laws and policy changes.

The study has implications for policy. Findings suggest that expanding funding for legal aid would assist the Home Office with reducing the backlog within the asylum system. The total number of asylum claims has increased by 160% between 2017 and 2022, with the number of people waiting for decisions increasing fivefold during this period, and as of December 2022, approximately 66%, or 110,000 people, have been waiting more than 6 months for a decision compared to 44% in 2017 (Sasse et al., 2023). Thus, increasing legal aid funding would enable solicitors to accept more asylum cases and provide them with the time needed to build trust with clients, especially when cases are complex (Agerbak, 2023). Having more time may enable solicitors to provide the Home Office with more complete evidence. When evidence is more complete, the Home Office can base its decisions on high-quality information, which can potentially lessen the chance of incorrect decisions and subsequent appeals, which have been shown to contribute to the backlog (Agerbak, 2023). Funding for legal aid could also be used to recruit and adequately remunerate solicitors who are skilled in handling SOGI-based claims. This would expand access to solicitors for LGBTQ+ people seeking asylum, thereby reducing their time spent in limbo and being subjugated to structural violence. Access to an adequately remunerated legal aid solicitor may facilitate the trust needed to discuss personal information related to one’s SOGI and the trauma experienced because of their SOGI. Our results support previous research that suggests using a trauma-informed legal approach with LGBTQ+ people seeking asylum (e.g., Kahn & Alessi, 2018). This approach helps create trust by acknowledging the impact of trauma on client functioning and recognizing the importance of cultivating a safe environment that helps empower them (Lemoine, 2017; Webb et al., 2022).

Using this approach requires additional time, as it may lead to the need for breaks during meetings or to repeat interviews to clarify issues that may be affected by trauma-related memory or processing difficulties (European Human Rights Advocacy Centre, 2022). Additionally, it requires that solicitors take time to recognize the potential for vicarious trauma and ways to address it, such as engaging in peer support (Katz & Haldar, 2015). Utilizing a trauma-informed legal approach also may allow for more accurate information to be presented on behalf of clients (Webb et al., 2022), which in turn may help simplify the decision-making process for the Home Office (Agerbak, 2023). Policy decisions surrounding solicitor remuneration for asylum cases should consider the time and resources needed for them to implement trauma-informed legal practices.