Screening

Managing the caseload of your organization and your staff is one of the most important things you will have to do. In order to help you in this process it is highly recommended that every refugee rights organization implement a screening process to determine which potential cases should be prioritized.

Three important points to consider from the outset:

1. Restricted by resources:
Organizations involved in legal aid representation of refugees are almost always restricted by resource issues. It is often impossible to provide a service, or at least the same level of service, to everyone who walks through the door seeking help.

2. Having to limit your services can feel uncomfortable:
To many lawyers, this inability to help everyone, regardless of the merits of their case, sits uncomfortably. In the legal ethical rules of most jurisdictions, a lawyer is obliged to assist a client where (a) the lawyer has the expertise; (b) has the capacity to assist; and (c) is not under any conflict of interest (and the client can pay the fees!).

3. The Nairobi Code:
The Nairobi Code acknowledges the reality of providing legal aid in the Global South. Rules 3.1 to 3.4 are clear that legal advisers may limit their services and are not under an obligation to assist everyone. In fact, to engage in ethical and responsible legal aid, your organization must establish an effective system of screening potential clients objectively to determine where to devote your limited resources.

Advantages of screening mechanisms

It is vital that your office sets up Case Screening Mechanisms for the following reasons:

  • Without such screening mechanisms, deciding on whether a case is sufficiently strong to accept a client may depend on factors such as the sympathies of the legal adviser who performs the intake interview or the persistence of the potential client.
  • If an asylum seeker’s chances of receiving legal aid depend largely on the personality of the legal advocate performing the intake interview, your organization will be complicit in the same type of arbitrariness that plagues many RSD processes, and is the object of much criticism by refugee rights organizations.
  • You need to be flexible and assess things on a case-by-case basis. For example, you may have a policy of only representing cases that you are convinced meets the definition in the Refugee Convention. If the decision-maker hears of this policy, how does it affect the asylum seekers you end up not representing? It could easily have an adverse impact with the decision-maker (consciously or not) pre-determining some claims on the basis of your non-representation.
  • While clear ethical rules exist to deter your organization from representing clients with fraudulent claims or actual conflicts of interest, the Nairobi Code permits you to take on many more claims than your organization can likely handle. It is perfectly ethical to represent an asylum seeker with a weak claim, and nothing prevents you from moving forward with an implausible case where there is no proof that the client is lying.
  • Nonetheless, there are many reasons your organization may want to stay away from such cases. As a matter of resource allocation, you may prefer to devote your time and energy to urgent cases or cases with a greater chance of success. Furthermore, your institutional reputation may be at risk if the decision-making body believes you represent abusive cases.

Objectivity and predictability

Asylum Access’ mechanism to promote objectivity and predictability in our screening process, involves two stages:

Stage One: Intake Interview

Any new clients who approach the office should be allocated an “intake interview” as soon as possible. This interview should determine any immediate protection concerns and the basis of the claim for asylum.

Stage Two: The Screening Process – three options for how we decide on screening

After the intake interview, there are three options:

i. If the potential client is clearly a refugee and there is a sense of urgency (i.e. they have a RSD interview the following day or an appeal due soon) then the VLA who carried out the initial intake interview should make the decision alone. This also applies when the person is clearly not a refugee.

ii. The Legal Adviser talks to the Legal Manager about the case. Together, they discuss the merits of the case, the weaknesses, and the legal arguments available. On the basis of the available resources at the time, the workload of the Legal Advisers, and any protection concerns, a decision should be made on the level of representation provided and to which Legal Adviser the case should be allocated.

iii. At each weekly team meeting, the Legal Advisers discuss the new intakes for that week. As a team, and after discussing the same factors as above, a decision is made on the level of representation and who will be responsible for the file.

During these discussions at (ii) and (iii), objective factors should be considered by which to evaluate cases, depending on the stage the potential client is at in relation to the RSD process.

Important questions to ask

The following are key questions to consider when evaluating a case. These can be printed out to use individually or as a focus for weekly office case meetings.

  • A potential client arrives looking for assistance with a first instance RSD interview:
  • Is this case particularly vulnerable? (i.e. unaccompanied minors, single parents, persons with disabilities, SGBV/torture survivors, etc.)
  • Does this case present an opportunity to expand existing local laws to provide greater protection for all refugees?
  •  Is a refugee visa the only viable means for the potential client to avoid refoulement (such as other types of visas he could apply for)?
  • Is the case particularly complicated and would benefit from a legal brief?
  • Is there a legal advocate in the office with sufficient time to manage the case before the deadline, in accordance with ethical standards for diligence?
  • A potential client arrives looking for assistance with an Appeal on procedural grounds:
  • Is this case particularly vulnerable? (i.e. unaccompanied minors, single parents, persons with disabilities, SGBV/torture survivors, etc.)
  • Does this case present an opportunity to expand existing local laws to provide greater protection for all refugees?
  • Was this case denied due to an incorrect interpretation of the law?
  • Is a refugee visa the only viable means for the potential client to avoid refoulement (such as other types of visas he could apply for)?
  • Is there a legal advocate in the office with sufficient time to manage the case before the deadline, in accordance with ethical standards for diligence?
  • A potential client arrives looking for assistance with an Appeal on credibility grounds:
  • Is this case particularly vulnerable? (i.e. unaccompanied minors, single parents, persons with disabilities, SGBV/torture survivors, etc.)
  • Does this case present an opportunity to expand existing local laws to provide greater protection for all refugees?
  • Is a refugee visa the only viable means for the potential client to avoid refoulement (such as other types of visas he could apply for)?
  • Is there a legal advocate in the office with sufficient time to manage the case before the deadline, in accordance with ethical standards for diligence?

How to screen

Screening Mechanism Model

Screening Mechanism Model

Screening

Screening Methodology

 

Further resources:

You can also download and print detailed worksheets breaking down factors to consider when a potential client arrives depending on which stage of the RSD process they are at: