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This article was first published on Lexis®PSL Immigration on 13 January 2015. Click for a free trial of
Lexis®PSL.
Can legal aid fund immigration cases?
13/01/2015
Immigration analysis: What effect will the Court of Appeal's decision in G and others have on the
issues surrounding the availability of legal aid in immigration cases? Catherine Meredith, a barrister
at Doughty Street Chambers, discusses the issues raised by the case.
Original news
R (on the application of G and others) v Director of Legal Aid Casework and another (British Red Cross
Society intervening) [2014] EWCA Civ 1622, [2014] All ER (D) 157 (Dec)
The claimants had been refused civil legal aid funding in cases that involved immigration issues. Their
judicial review challenges had been successful. The Court of Appeal, Civil Division, held that the judge had
erred in his interpretation of when exceptional case funding was required by the Legal Aid, Sentencing and
Punishment of Offenders Act 2012, s 10(3)(a) (LASPO 2012). It further affirmed the judge's conclusions that
the second defendant Lord Chancellor's Exceptional Funding Guidance (Non-Inquests) was not compatible
with the European Convention on Human Rights, art 6(1) (ECHR) and, in immigration cases, ECHR, art 8,
nor was it compatible with the Charter of Fundamental Rights of the European Union, art 47.
What does this decision mean for the availability of legal aid in immigration cases?
Legal aid may need to be made available in immigration cases to avoid a breach of ECHR, art 8 or the
Charter of Fundamental Rights, art 47(3), or because it is appropriate, having regard to any risk of such a
breach under LASPO 2012, s 10.
The ability to secure legal aid in immigration cases under ECHR, art 8 is important as the Lord Chancellor, in
the guidance, had initially denied that there was any authority to support a right to legal aid in immigration
cases (and where ECHR, art 6 does not apply).
It provides for the possibility of securing legal aid in immigration cases following their removal from scope
under LASPO 2012, and where exceptional case funding (ECF) was not proving to be an effective funding
scheme and grants were rare since April 2013, when LASPO 2012 came into force.
It clarified the approach to LASPO 2012, s 10 ECF determinations--by reference to the requirements of the
ECHR and the Charter--and not by reference to grants being rare or exceptional.
What aspects of the guidance issued by Ministry of Justice (MoJ) did the court find
fault with?
The cumulative effect of passages in the guidance misstated the European Court of Human Rights
jurisprudence and sent a 'signal to the caseworkers and the Director that the refusal of legal aid will amount
to a breach of Article 6(1) only in rare and extreme cases' (para [45]).
The guidance was incompatible with:
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ECHR, art 6 and the Charter, art 47 (para [59]):
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'the key question is said to be whether legal aid is necessary for "effective access to the
court"' (para [42]). Airey v Ireland [1979] ECHR 6289/73, (1979) 2 EHRR 305 (as
developed in the subsequent case-law) articulates the relevant law (and is broader than
X v UK (1984) 6 EHRR 50 (see para [46])
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the grant of legal aid will depend on the circumstances of the case (para [56])
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ECHR, art 8:
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procedural protections inherent in ECHR, art 8 apply in immigration cases, as rightly
conceded by counsel for the appellants to ensure that rights are 'practical and effective'
(para [69])
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the procedural protections of ECHR, arts 6 and 8 are in practice the same (para [70])
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a 'very high threshold' should not be applied (para [76])
What are the challenges in trying to secure exceptional legal aid funding?
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It is very difficult for lay persons, in the absence of clear explanations or assistance, to know
how to apply for ECF.
The vast majority of applications are refused.
Legal practitioners have been deterred from making ECF applications because of the high
refusal rate, the lack of remuneration and the time-consuming labour intensive and careful
exercise that is entailed.
There are processing delays, exacerbated if the case is urgent.
These are some of the issues which fall to be determined in the systemic challenge to ECF in the case of IS
listed for hearing in early 2015.
Is it likely that new guidance will have to be issued on the availability of legal aid in
such cases?
Yes as the court was told so by counsel for the Lord Chancellor. Changes in the operation of the ECF
scheme in immigration cases remain to be seen.
What should lawyers take from this decision?
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To be encouraged to make ECF applications as there is evidence that lawyers were no longer
doing so.
ECF grants should be available beyond rare and extreme cases--as indicated by the facts and
circumstances in the three cases which succeeded in addition to the IS concession, namely G,
Reis and B.
Lawyers will need to make detailed arguments and show why legal aid is required to ensure
sufficient and effective involvement in the decision-making process, applying the Court of
Appeal guidance.
Lawyers may wish to refer to the Public Law Project ECF Funding Project.
Any further comments or observations?
The court made two practical comments which lawyers may wish to make use of when making applications:
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deportation cases are of particular concern--the issues at stake for the individual will usually be
of great importance (para [77])
there may be cases where ECF may be required for early legal advice 'even where it is not
considered to be necessary for representation at the hearing' (para [185])
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The court also found in B that refugee family reunion cases are not within the scope of legal aid and in LS
that there is no discrete EU enforceable right to legal aid in trafficking cases prior to the stage left out by
LASPO 2012 (reasonable grounds). However, legal aid may need to be granted under ECHR, art 8 in such
cases depending on the facts and circumstances of the case as in B though not in LS (on the particular facts
of case). An appeal is likely in LS and in B.
What happens next?
The MoJ is reportedly carefully considering the judgment.
Catherine Meredith is a human rights and public law specialist. She has real expertise in trafficking cases
and is involved in a number of test cases involving the UK's obligations under EU and international law. She
also advises on cases involving discrimination and gender-based violence.
Interviewed by Kate Beaumont.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.