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9.31An exceptional case funding application to fund work not in scope may be made under LASPO s10, but only where you can demonstrate the test is met:
(a)that it is necessary to make the services available to the individual … because failure to do so would be a breach of–
(i)the individual’s Convention rights (within the meaning of the Human Rights Act 1998), or
(ii)any rights of the individual to the provision of legal services that are enforceable EU rights, or
(b)that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.
1LASPO s10(3). 9.32In his original exceptional case funding guidance, the Lord Chancellor did not consider that immigration cases would come within the ambit of exceptional funding. In
R (Gudanaviciene) v Director of Legal Aid Casework,
2[2014] EWCA Civ 1622. the Court of Appeal held that certain paragraphs of this guidance were incompatible with Article 6(1) ECHR and with Article 47 of the Charter of Fundamental Rights of the European Union and incompatible with Article 8 ECHR in immigration cases.
9.33The court in
Gudanaviciene also held that whether funding should be granted will depend on the facts of the case, including the importance and complexity of the issues and the person’s ability to act on his/her own without legal assistance and any language difficulties. Since there is no appeal (beyond review by the Director) against an exceptional case funding determination,
3Civil Legal Aid (Procedure) Regulations 2012 reg 69. any challenge on a refusal of funding would be by way of judicial review.