Court of Appeal rules against Lord Chancellor and Director of Legal Aid Casework in test cases on exceptional case funding

 

Gudanaviciene, IS (by his litigation friend, the Official Solicitor), Reis, B, Edgehill, LS (Claimants/Respondents); The British Red Cross Society (Intervener) – v- The Director of Legal Aid Casework and the Lord Chancellor (Appellants) [2014] EWCA Civ 1622, 15 December 2014

 

The Master of the Rolls, Lord Justice Richards, Lord Justice Sullivan

 

Judgment can be found here

 

Catherine Meredith (for LS) worked with Clara Connolly at the Anti-Trafficking Labour and Exploitation Unit (ATLEU); and Alison Pickup (for B) worked with Roopa Tanna, Islington Law Centre. Paul Bowen QC represented B and LS.

 

This was a test challenge in six immigration cases which had been joined together as they raised common issues about exceptional case funding (ECF) under s.10 Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). Mr Justice Collins in Gudanaviciene & Ors v Director of the Legal Aid Casework & the Lord Chancellor [2014] EWHC 1840 (Admin) quashed the decisions of the Director in each of the cases on the basis that the refusal to grant ECF would breach be a breach of ECHR or EU rights; and found significant parts of the Lord Chancellor’s Guidance (‘the Guidance’) was unlawful.

 

The Court of Appeal significantly upheld that judgment.

 

The ruling of the Court of Appeal on the approach to exceptional case funding in immigration cases:

 

  • The determination of ECF does not involve an exceptionality test and is to be assessed by reference to the requirements of the Convention and the Charter. Legal aid would have to be granted if the Director concluded there would be a breach, or if not, if it was appropriate to grant legal aid having regard to any risk of a breach.
  • The Guidance is incompatible with the requirements of Article 6 ECHR and Article 47 of the Charter because it sent a signal to caseworkers that the refusal of legal aid would breach Art 6 only in rare and extreme cases (§45) and the same applied to Art 47(3) of the Charter (§59). The grant of legal aid will depend on the circumstances of the case (§56).
  • The Guidance is incompatible with Article 8 ECHR in immigration cases – because as Mr Chamberlain for LAA rightly conceded – the procedural protections of Article 8 ECHR apply in immigration cases. In the context of legal aid, the standards are the same as those under Article 6 ECHR (§69-70).
  • The key requirements are effectiveness and fairness (§72).
  • The decision-maker should not apply a “very high threshold” (§76).
  • Deportation cases are of particular concern, not least because of the importance of the interests at stake.

The concession in IS

 

  • IS: The LAA conceded the case of IS, a blind Nigerian man who lacked capacity, and had sought ECF for legal advice relating to an application for leave to remain. The Court of Appeal said that it was an “extreme” case (§80).

The five remaining appeals

 

The Court of Appeal dismissed the LAA’s appeals in Gudanaviciene, B and Reis; and allowed the appeals in LS and Edgehill.

 

  • B: refugee family reunion cases were excluded from the matters in scope of legal aid (§147) in para 30 of Part 1 of Schedule 1 to LASPO (§152). However Article 8 ECHR required the grant of legal aid in B’s case, and may do so in others, including when a family member is outside of the jurisdiction (§§172-173).
  • LS: there is no enforceable right to legal aid for victims of trafficking in relation to an application for leave to remain and prior to a reasonable grounds decision; i.e. the stage left out by para 32(1) of Part 1 of Schedule 1 to LASPO, either under the Trafficking Directive 2011/36 or by reading the provision with Charter rights, Arts 5(3), 41 and 43 (§108) or the Council of Europe Convention Against Trafficking in Human Beings or Article 4 ECHR. No reference to the CJEU under Art 267 arose (§109). Article 8 did not require a grant of legal aid on the facts of LS’s case as it was not particularly complex.
  • Gudanaviciene: legal aid was required for her EEA deportation appeal not least because of her and her daughter’s interests.
  • Reis: legal aid was required for his EEA deportation appeal because of the complexity of the legal issues in his case.
  • Edgehill: legal aid was desirable but unnecessary for an appeal in the Court of Appeal because a linked case raised the issue on law on which Edgehill succeeded.

Implications and next steps

 

The case has important consequences concerning exceptional case funding in the immigration and non-immigration context; as well as the procedural requirements of Article 8 ECHR in immigration cases.

 

LS and B are likely to seek permission to appeal to the Supreme Court.

 

The Ministry of Justice are reportedly carefully considering the judgment. For mor information please see here.

 

Further reports of the judgment, including the comments the shadow justice minister, Andy Slaughter MP can be found here and here.

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