High Court holds that decisions refusing Exceptional Case Funding in a range of immigration cases are unlawful; that refugee family reunion cases are ‘within scope’ for the purposes of s 9 LASPO; and that Guidance on Exceptional Funding under LASPO is unlawful.

Paul Bowen QC acted for the successful claimants B and S, with Alison Pickup (instructed by Roopa Tanna of Islington Law Centre) for B and Catherine Meredith (instructed by Clara Connolly of ATLEU) for S.

 

On Friday, 13 June 2014 in R (Gudanaviciene & Others) v Director of Legal Aid Casework & Lord Chancellor [2014] EWHC 1840 (Admin), Collins J held that decisions refusing Exceptional Case Funding (‘ECF’) by the Legal Aid Agency (‘LAA’) in six immigration cases had been unlawful.  He held that the Lord Chancellor’s Exceptional Funding Guidance (Non-Inquests), published to guide LAA caseworkers in deciding whether to grant exceptional case funding under s. 10 LASPO for cases outside the scope of s. 9 and Part 1 of Schedule 1, was unlawful in three main respects: it set the threshold for finding that legal aid is necessary to prevent a breach of Article 6 ECHR (and Article 47 of the EU Charter of Fundamental Rights) too high; it failed to recognise that the procedural requirements of Article 8 may require legal aid to be granted in immigration cases; and it gave incorrect guidance as to the circumstances in which legal aid must be granted because of the risk of a breach of rights under s. 10(3)(b) LASPO. Collins J decided:

 

“It must … be remembered that it is a fundamental principle that anyone in the UK is subject to its laws and is entitled to their protection.  Thus there must be a fair and effective hearing available and the Guidance, as the facts of some of the cases I have dealt with show, produces unfairness.”

 

Collins J found that the refusals to grant ECF in all six cases had been unlawful having regard to the risk of a breach of Convention rights.  In Gudanaviciene, Reis, and Edgehill Collins J quashed the decisions and was satisfied that legal aid should have been granted and directed the LAA now to do so. In S and IS the decisions were quashed and reconsideration of the claims for ECF was ordered. In B refugee family reunion was held to be in scope of legal aid and Collins J made a declaration to that effect; but he also declared that (in the event it was not in scope) the decision to refuse ECF was unlawful and that legal aid should have been granted in any event.

 

In ‘B’, Collins J held that the right of refugees to be joined by their immediate family members, which is conferred by the Immigration Rules, is a right “arising from” the Refugee Convention because it is the recognition of refugee status under that Convention which gives rise to the right to family reunion. As such, on the correct construction of paragraph 30 of Part 1 of Schedule 1 of LASPO, legal advice in relation to applications for family reunion visas is within scope of legal aid, contrary to the position which has been taken by the Legal Aid Agency since LASPO entered into force on 1 April 2013. He rejected the LAA’s attempt to rely on Parliamentary debates, holding that the words of the statute were entirely unambiguous, so that under the rule in Pepper v Hart recourse to Parliamentary debates was not permissible, but that even if the Parliamentary debates were admissible, there was no clear and unequivocal statement by a Minister which could act as a guide to the intention of Parliament.  Alternatively, having regard to the risk of a breach of B’s Article 8 rights the decision to refuse ECF funding had been unlawful which should have been granted.

 

In ‘S’, Collins J held that a victim of trafficking (‘VOT’) may also require ECF to be provided where there will otherwise be a breach, or risk of breach, of Article 8 prior to a ‘reasonable grounds’ decision being made under the National Referral Mechanism (‘NRM’).  Without proper legal advice a VOT, who is likely to be highly vulnerable and afraid of the consequences of making themselves known to the authorities, such as detention and removal, may never come forward or consent to being referred as a VOT.  The right to legal advice and assistance could arise under Article 8 ECHR, although the judge rejected arguments that such a right was conferred by Article 4 ECHR or under Article 12 of the EU Trafficking Directive 2011/36.

 

IS is a blind Nigerian man who lacks mental capacity and is therefore represented by the Official Solicitor, who cannot give immigration advice. He challenged the refusal of ECF on Article 8 grounds; and also challenged the ECF scheme as a whole. On the Article 8 ground, Collins J quashed the adverse decision and ordered reconsideration. The second systemic ground of challenge was severed from the 6 joined claims and will be heard in due course.

 

Gudanaviciene (or ‘TG’) is a national of Lithuania pursuing an appeal against deportation. She was sentenced to 18 months imprisonment for s.18 wounding with intent after she stabbed her abusive violent husband with a kitchen knife. TG has a two-year old daughter currently in foster care. Collins J considered that TG has  a very poor command of English and will obviously be emotionally involved in the appeal so that she cannot approach it in an objective fashion.  Evidence was required and could not be obtained by the Tribunal, particularly as the proceedings are adversarial.  The merits of the case were strong but this did not mean she was less likely to be disadvantaged by the absence of professional representation. In TG’s case, the very high threshold applied by the Guidance showed how it could produce a perverse decision; but even on that high threshold, the decision was unreasonable in Wednesbury terms and, on the correct approach, it was indefensible.

 

Reis is a Portuguese national with permanent residence who the SSHD decided to deport on account of “appalling” criminal offending. He sought ECF in respect of an appeal to the First-tier Tribunal, which was refused. Collins J held that this would be a “difficult appeal”: his case may turn on whether 10 years residence accrued prior to the decision to deport was interrupted by any periods of imprisonment, and the guidance issued by the CJEU was not clear on that. There was a difficult question to be determined on the facts too. Collins J was  “entirely satisfied that without legal assistance there is a real prospect of the claimant not receiving justice”.

 

Edgehill is a Jamaican national with four children in the UK who challenged the refusal of ECF in relation to her application to the Court of Appeal against the decision of the Upper Tribunal upholding the SSHD’s refusal of leave to remain under the Immigration Rules post-9 July 2012 and Article 8 ECHR. Collins J held that “There can be no doubt that the claimant was entirely unable to argue her appeal in person.  Success was by no means certain, albeit probable, and the Home Office was concerned to try to uphold the UTIAC’s approach”.  

 

Collins J has granted the Defendants permission to appeal in all cases except TG.

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