Lord Chancellor confirms legal aid for victims of trafficking and modern slavery in scope under LASPO
The Lord Chancellor conceded a claim for judicial review against the refusal of legal aid to a victim of trafficking, just before the substantive judicial review hearing was to be heard in the High Court.
The Claimant, LL is an extremely vulnerable victim of trafficking. She had a positive reasonable grounds decision under the NRM. She applied for a legal help extension for an expert report in relation to a conclusive grounds decision that she was a victim of trafficking and discretionary leave to remain, making clear that the two matters were integrally linked. The Lord Chancellor refused the extension because (a) a conclusive grounds decision was out of scope and (b) because no “application” is needed for consideration of discretionary leave for victims of trafficking (Victims of modern slavery – Competent Authority guidance - v.3.0, 21 March 2016) and so this could not be in scope under paragraph 32 of the First schedule to LASPO which refers to an “application for leave to enter or remain”. In making these decisions the Lord Chancellor was applying a recent change in practice for cases of this kind.
On 16 April 2018 the Lord Chancellor conceded LL’s application for judicial review of that decision. The hearing was due to take place on 17 April 2018. The order was approved by Mr Justice Walker on 18 April 2018 and is now available here, together with a statement of reasons.
The approved order restores what was previously understood to be the position and recites his agreement to the following points:
That civil legal services provided to assist a victim of trafficking to obtain a conclusive grounds determination will be in scope of legal aid under s. 9 and para 32(1) of LASPO where that work is in relation to a determination of whether or not the victim should be granted leave to enter or remain for any reason.
That victims of trafficking are entitled to legal aid for any kind of application for leave to enter or remain, and irrespective of whether or not any specified form or formal application is required by the Home Office.
The agreed order makes clear that work in securing a conclusive ground decision is in scope where, as is so often the case, it is vitally linked to grant of leave. It also puts an end to reliance on the highly technical argument that work on obtaining leave is not covered by legal aid simply because there is no need for a formal application.
On Friday 27 April 2018 the Legal Aid Agency confirmed that the declaration contained in the order was circulated to the relevant LAA casework teams, shortly after it was approved by the Judge. It also confirmed the understanding that the declaration will be published on the LAA’s website early this week, and the LAA has agreed that the declaration will also apply to modern slavery cases under para 32A. These are important further clarifications – especially as this judicial review had always alleged that four years after the entry into force of LASPO, the LAA was not entitled to change its mind about the interpretation of para 30; still less fail to tell anyone about it.
Together with the recent decision in PK (Ghana), R (On the Application Of) v The Secretary of State for the Home Department  EWCA Civ 98, which explained the circumstances in which leave will be granted under ECAT, and in line with its purpose to assist and protect victims, LL is an important advance for victims of trafficking and modern slavery.
Carita Thomas at ATLEU, and Martin Westgate QC and Catherine Meredith of Doughty Street Chambers, acted for LL. The team are grateful to Zoe Harper, Doughty Street Chambers, Dr Anne Gallagher, Academic Panellist of Doughty Street Chambers, Kate Roberts at the Human Trafficking Foundation and all those who helped with evidence in the case; and to the AIRE Centre and legal team for their Third Party Intervention.
Martin Westgate QC also acted with Catherine Meredith and Nina Rathbone Pullen at Wilson Solicitors LLP in PK and were again assisted by Dr Anne Gallagher. We are closely monitoring policy developments following that case.
The Anti-Trafficking Team at Doughty Street Chambers will be holding a specialist trafficking seminar on 15 June 2018 to discuss these developments, and others, including the revised NRM. Further details to follow shortly.