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9.3The 2013 Category Definitions define asylum and immigration as work covered by LASPO Sch 1 Pt 1 paras 24 to 30, 32 and 32A, and 45, together with any section 10 exceptional funding granted where the primary legal issue is immigration. The 2013 category definitions were amended to include paragraph 32A (applications for leave to enter or remain by victims of slavery, servitude or forced labour) when this provision was inserted to Schedule 1 Pt 1 of LASPO on 31 July 2015 by the Modern Slavery Act 2015.
9.4Save for where specific reference is made, you can advise and assist on the following issues under your legal aid immigration and asylum contract:
Asylum1LASPO Sch 1 Part 1 para 30. •Rights to enter and remain arising from:
•the Refugee Convention;
•Articles 2 and 3 ECHR;
•the Temporary Protection Directive;
2Council Directive 2001/55/EC. •the Qualification Directive.
3Council Directive 2004/83/EC. 9.5The above will include:
•controlled work done on an asylum issue related to Special Immigration Appeals Commission (SIAC) proceedings;
4Standard Civil Contract Specification 2013 para 8.7(b). •an application for indefinite leave to remain (ILR) under the Refugee Settlement Protection policy;
•an application for leave to remain on the basis of serious medical conditions which reaches the Article 3 threshold.
Family reunion for refugees
9.6The LAA had always interpreted LASPO as putting family reunion cases out of scope. However, in
Gudanaviciene and others v Director of Legal Aid Casework and The Lord Chancellor,
5[2014] EWHC 1840 (Admin). Collins J said that it was in scope as a right arising from the Refugee Convention. That ruling was later overturned by the Court of Appeal,
6[2014] EWCA Civ 1622. which confirmed that family reunion was out of scope of legal aid.
9.7However, the Court of Appeal was in agreement with the High Court that the respondent’s family reunion case was particularly complex and that failure to provide exceptional funding would amount to a breach of Article 8, and so exceptional funding would be appropriate.
Detention, temporary admission and restrictions
9.9You can provide advice and assistance to an individual solely in relation to detention
10LASPO Sch 1 Pt 1 para 25. under immigration powers, such as applications for bail and temporary admission.
11LASPO Sch 1 Pt 1 para 26. You will not be able to claim for any non-detention work as part of the case unless this is itself in scope of immigration or asylum legal aid.
9.10You can provide advice and assistance on temporary admission to a person who has been released from detention or to a person who has been granted temporary admission and has been given restrictions and conditions, such as restriction to reside at a fixed address, reporting and employment.
12See Immigration Act (IA) 1971 Sch 2 para 21 and Nationality, Immigration and Asylum Act (NIAA) 2002 s62.9.11You can provide advice and assistance on residence and restrictions
13LASPO Sch 1 Pt 1 para 27. to a person who has leave to enter or remain and has made an asylum claim.
14See NIAA 2002 s71. You can also advise on residence and restrictions to a person who has been recommended for deportation by the court.
15See IA 1971 Sch 3 para 2(5) or 4.9.12In most cases, only the detention etc. issue is in scope, not the substantive immigration case. For example, a person subject to deportation following a criminal conviction is entitled to legal aid in respect of his or her detention or residence restrictions, but not in respect of deportation advice and proceedings themselves. You will need to be careful on your file to justify that work done is genuinely in relation to the in-scope aspects, such as where it is necessary to consider the immigration history or offences leading to the deportation in order to assess bail or temporary admission and restrictions.
Victims of domestic violence – applications for indefinite leave to remain
9.13You can provide advice and assistance to a victim of domestic violence in an application for indefinite leave to remain (ILR)
16LASPO Sch 1 Pt 1 para 28. if the person has been granted leave to remain as a spouse or partner of a British or settled person in the UK and the relationship has broken down permanently due to domestic violence. This will include a person who has been granted leave to enter or remain outside the immigration rules as a partner or spouse of a British or settled person in the UK (eg victims with leave to enter outside the immigration rules or with discretionary leave to remain).
17Applications made under Immigration Rules appendix FM (Family Members), DVILR para 289A and appendix (Armed Forces) para 39(b)(i). This is so long as the advice and assistance is solely in relation to an application for ILR under the domestic violence provisions.
9.14The time you spent advising and assisting a victim with an application under the three-month Destitute Domestic Violence Concession (DDVC) can also be claimed as part of the substantive ILR application.
9.15Other than the above, the fact that the applicant is a victim of domestic violence does NOT generally entitle them to legal aid for immigration advice (eg victims with partners and spouses on short term leave). You will also not be able to advise a person who has leave to remain as a partner or spouse of a person in the armed forces who has leave to remain.
Victims of domestic violence – residence cards (EEA regulations)
9.16You can provide advice and assistance in relation to an application for a residence card
18LASPO Sch 1 Pt 1 para 29. to a person who has ceased to be a family member on the termination of a marriage/partnership (ie only if divorced), who was a victim of domestic violence or was a family member of the victim and the violence took place during the time that the marriage was subsisting.
19Applications for residence cards made under regulation 17 and 16 in connection with retaining right to reside under reg 10(5)(d)(iv) of the Immigration (EEA) Regulations 2006 SI No 1003.9.17Other than the above, the fact that the applicant is a victim of domestic violence does NOT generally entitle them to legal aid for immigration advice (eg those family members not divorced from their EEA spouse or those in durable relationships who were never married to EEA nationals in the first place).
Definition of domestic violence under LASPO
9.18Domestic violence means
… any incident, or pattern of incidents, of controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other (within the meaning of section 62 of the Family Law Act 1996).
20LASPO Sch 1 Pt 1 paras 28(5) and 29(4) as amended.Victims of trafficking in human beings
9.19You can provide advice and assistance in relation to applications for leave to enter or remain by a victim of trafficking.
21Note that only LASPO Sch 1 Pt 1 para 32(1) comes within the immigration category; the other civil claims referred to in para 32(2) and (3) are in the miscellaneous work category and therefore can only be carried out by providers whose schedule authorises miscellaneous work (see para 37 of the Category Definitions 2013). However, in order for you to assist there must either be a conclusive determination that the person is a victim, or you must have ‘reasonable grounds’ to believe that the person is a victim and there has been no conclusive negative determination.
9.20There is no legal aid available to assist a person in the process of ascertaining whether s/he is a victim of trafficking by way of an application to the first respondent or to the competent authority.
22R (Gudanaviciene and others) v Director of Legal Aid Casework and The Lord Chancellor [2014] EWCA Civ 1622.9.21There is no time restriction on the availability of funding to assist a person who has been determined a victim of trafficking by the competent authority under controlled work.
23Frequently asked questions, Civil Legal Aid Reforms v1.3 para 57 – no longer on the LAA website but available at http://legalaidhandbook.files.wordpress.com/2013/04/legal-aid-reform-faq-v3.pdf. However, in licensed work, there is a time restriction of twelve months from the date of determination that the person is a victim or before the end of any leave outside the rules granted to the victim.
24Civil Legal Aid (Procedure) Regulations 2012 reg 31(8).Where a client has been determined a victim of trafficking and is also making an asylum claim, you will need to treat the asylum work and any ‘associated’ or ‘additional’ application for leave to remain on human rights grounds as one asylum matter start under the Immigration specification.
25Standard Civil Contract Specification 2013 para 8.3.1, see also para 56 of Frequently asked questions, Civil Legal Aid Reforms, available at http://legalaidhandbook.files.wordpress.com/2013/04/legal-aid-reform-faq-v3.pdf.Victims of slavery, servitude or forced or compulsory labour
9.22From 31 July 2015, you have been able to provide advice and assistance in relation to applications for leave to enter or remain by victims of slavery, servitude or forced compulsory labour.
26LASPO Sch 1 Pt 1 para 32A. See also Standard Civil Contract Specification 2013 para 8.8 as amended in July 2015. Similar to victims of trafficking, in order for you to assist there must either be a conclusive determination that the person is a victim, or you must have ‘reasonable grounds’ to believe that the person is a victim and there has been no conclusive determination that the person is not a such a victim. ‘Slavery’, ‘servitude’ and ‘forced or compulsory labour’ have the same meaning as they have for the purposes of Article 4 ECHR.
Special Immigration Appeals Commission (SIAC)
9.23Advice and assistance including representation to a person in relation to an appeal before the Special Immigration Appeals Commission (SIAC)
27LASPO Sch 1 Pt 1 para 24 and Pt 2 para 21. is in scope. This may normally involve controlled work under Legal Help for any initial advice and licensed work for any preparation and representation on a SIAC appeal.
Terrorism prevention and investigation measures etc
9.24Advice, assistance and representation to a person in relation to notices and control orders proceedings under the Terrorism Prevention and Investigation Measures Act 2011 is in scope.
28LASPO Sch 1 Pt 1 para 45.Immigration appeals and bail hearings before the First-tier Tribunal and Upper Tribunal
9.25Representation in immigration and asylum cases that are in scope will include advocacy in appeals
29The Immigration Act 2014 has reduced appeal rights to protection, human rights, EEA and deprivation of British citizenship claims. and bail applications
30LASPO Sch 1 Pt 3 paras 11 and 13. to the First-tier and Upper Tribunal. Any advocacy
31LASPO Sch 1 Pt 3 paras 1, 2 and 3. in the High Court, Court of Appeal and Supreme Court is only in scope if arising out of in scope services.
32LASPO Sch 1 Pt 3 paras 8 and 19.9.26Advocacy in the First-tier Tribunal and the Upper Tribunal is also available in appeals where a person is being deprived of British citizenship under section 40A of the British Nationality Act 1981 and rights of residence under regulation 26 of the Immigration (EEA) Regulations 2006. However, this is only to the extent that the appeal concerns a contravention of the Equality Act 2010.
33LASPO Sch 1 Pt 3 para 12. The Immigration (EEA) Regulations 2016 replaced the 2006 regulations from 1 February 2017 in respect of appeal rights, yet LASPO has not been updated to reflect this.
Judicial review
9.27Judicial review is in scope by virtue of LASPO Schedule 1, Part 1, para 19(1), but there are specific restrictions in immigration cases, set out in paras 19(5) to 19(8):
(5)The services described in sub-paragraph (1) [judicial review] do not include services provided in relation to judicial review in respect of an issue relating to immigration where–
(a)the same issue, or substantially the same issue, was the subject of a previous judicial review or an appeal to a court or tribunal,
(b)on the determination of the previous judicial review or appeal (or, if there was more than one, the latest one), the court, tribunal or other person hearing the case found against the applicant or appellant on that issue, and
(c)the services in relation to the new judicial review are provided before the end of the period of 1 year beginning with the day of that determination.
(6)The services described in sub-paragraph (1) do not include services provided in relation to judicial review of removal directions in respect of an individual where the directions were given not more than 1 year after the latest of the following–
(a)the making of the decision (or, if there was more than one, the latest decision) to remove the individual from the United Kingdom by way of removal directions;
(b)the refusal of leave to appeal against that decision;
(c)the determination or withdrawal of an appeal against that decision.
9.28Despite these restrictions, judicial review is still permitted in fresh asylum claims and other certified cases (effectively where there would be no appeal to the immigration tribunal against the decision):
(7)Sub-paragraphs (5) and (6) do not exclude services provided to an individual in relation to–
(a)judicial review of a negative decision in relation to an asylum application (within the meaning of the EU Procedures Directive
34Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status.) where there is no right of appeal to the First-tier Tribunal against the decision;
(b)judicial review of certification under section 94
35Unfounded human rights or asylum claims. or 96
36Certification on the basis of an earlier right of appeal. of the Nationality, Immigration and Asylum Act 2002 (certificate preventing or restricting appeal of immigration decision).
(8)Sub-paragraphs (5) and (6) do not exclude services provided in relation to judicial review of removal directions in respect of an individual where prescribed conditions relating to either or both of the following are met–
(a)the period between the individual being given notice of the removal directions and the proposed time for his or her removal;
(b)the reasons for proposing that period.
9.29It is important to be clear about what funding is being sought for in judicial review cases, and to ensure that the work is in scope and is not excluded under the above provisions. You will need to ensure that this is clearly spelt out in all funding applications to the LAA.
9.30It is expected that all internal reviews and appeals are exhausted before any refusal of funding is challenged in court proceedings.
37Rrapaj and others v Director of Legal Aid Casework [2013] EWHC 1837 (Admin).