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9.46In general, immigration work can be divided into four stages:
1)Advice and assistance on Home Office/entry clearance applications;
2)Advice and representation on appeals to the First-tier Tribunal;
3)Advice and representation on appeals to the Upper Tribunal;
4)Litigation in the Upper Tribunal and higher courts.
9.47Stage 1 is funded by Legal Help. Stages 2 and 3 are funded by Controlled Legal Representation (CLR) (though different rules apply and it helps to think of them as different types of work), and stage 4 is funded by a funding certificate.
9.48The Immigration Specification does not create any additional rules for certificated work in the higher courts, and this is therefore not dealt with to any great extent in this chapter.
9.49The various funding types are consecutive as the case progresses. For example, where a client’s application is refused, you should consider whether there is merit for an appeal under CLR, and if so grant it. CLR should be applied for as soon as practicable after the right to appeal has arisen, and before the appeal is lodged.
9.50Once CLR is granted or refused, the Legal Help comes to an end and no further Legal Help work may be done on that matter.
1Standard Civil Contract Specification 2013 para 8.63. Post-appeal work will form part of the CLR.
2Standard Civil Contract Specification 2013 para 8.65(g).9.51Similarly, where you take an appeal to the Court of Appeal, the issue of a certificate to conduct the appeal brings the controlled work matter to an end. If the Court of Appeal then remits the case back to the Immigration and Asylum Chamber (IAC), a new matter start will be required to do the remitted appeal, which will be paid at hourly rates.
3Standard Civil Contract Specification 2013 para 8.77(j). If during either Stage 1 or Stages 2 or 3, it is necessary to do work under a certificate while the relevant stage remains pending, then either the Legal Help or the CLR, as applicable, may be kept open to deal with that work.
Fee types
9.52Some immigration work is paid as standard fees, some at hourly rates. Different rules apply to standard fee work and hourly rates work, and it is therefore important to determine at the start of the case which is which.
9.53Paragraph 8.77 of the 2013 Standard Civil Contract Specification lists all hourly rates work:
(a)Asylum Matters opened under this Contract which relate to an Asylum application (including ‘NAM’ or ‘Legacy’), made to the UKBA prior to 1 October 2007;
(b)a fresh claim/further application for Asylum opened under this Contract where the original Asylum application was lodged, whether concluded or not, prior to 1 October 2007;
(c)advice in relation to the merits of lodging an application for permission to appeal to the Upper Tribunal (where advice has not been received under Stage 2 of the Standard Fee);
(d)CLR in relation to an application for permission to appeal and, appeals before the Upper Tribunal – see paragraphs 8.93 to 8.98;
(e)Bail applications;
(f)advice and applying for a determination that a Client qualifies for civil legal services provided as Licensed Work, including complying with any pre-action protocol;
(g)initial advice in relation to an Asylum application prior to claiming Asylum at the Asylum Screening Unit where you then cease to be instructed. This will also apply where the Client returns after attendance at the Asylum Screening Unit but where it is confirmed that the Client will be dispersed and will not continue to instruct you;
(h)Escape Fee Cases under the Standard Fee;
(i)advice in relation to a Client who is an UASC (unaccompanied asylum-seeking child);
(j)cases remitted, reviewed or referred from the Court of Appeal to the Upper Tribunal or the Upper Tribunal to the First-tier Tribunal;
(k)in relation to a Provider who holds an exclusive Schedule, any Matters opened as a result of an On Site Surgery or for a Fast Track Client;
(l)advice in relation to Terrorism Prevention and Investigation Measures Orders;
(m)applying for a determination that an individual qualifies for civil legal services provided as Licensed Work in relation to Terrorism Prevention and Investigation Measures; and
(n)applying for a determination that an individual qualifies for civil legal services provided as Licensed Work in relation to the Special Immigration Appeals Commission.
All other work not included in paragraph 8.77 is payable as standard fees.
9.54Where the substantive matter is standard fee, nonetheless any bail, Upper Tribunal, remittals, applications for funding certificates and pre-action work under the same matter will always be paid at hourly rates. In this situation, the hourly rates work is an additional payment. By contrast, where the substantive matter is hourly rates, bail, applications for funding certificates and pre-action work all falls under the costs limit of the substantive matter. The costs limit for Upper Tribunal and remittals work is explained later in this chapter.
9.55You should be especially careful when dealing with the case of an unaccompanied asylum-seeking child. If the child turns 18 before CLR is granted, the CLR work on this matter will be standard fee.
4This is because although both count as same matter start, Legal Help and CLR are two separate services under controlled work, see page 64 of Escape Fee Cases Electronic Handbook, available at www.gov.uk/government/publications/submit-an-escape-fee-case-claim. The Legal Help work on this matter will still all be hourly rates. If the child turns 18 after CLR is granted, then both the Legal Help and CLR work on this matter will remain at hourly rates.
Matter starts and separate matters
9.56A ‘matter’ is all work done on a single case for a client. A matter can pass through Legal Help and CLR and will still be treated as the same matter.
9.57The following explains when only one matter should be opened and when more than one matter should be opened:
•An application and subsequent appeal is one matter.
5Standard Civil Contract Specification 2013 para 8.29. •Any human rights application associated with an asylum matter should be dealt with under that asylum matter.
6Standard Civil Contract Specification 2013 para 8.31. •A fresh application for asylum is a new matter.
7Standard Civil Contract Specification 2013 para 8.32. •Work in relation to preparation for and applying for a certificate for licensed work (including compliance with any pre-action protocol) may be dealt with under the relevant existing matter or by opening a new matter.
8Standard Civil Contract Specification 2013 para 8.33. •Where a client applies to enter or remain in the UK under more than one category, or applies to switch status while the first – application remains outstanding, this will be one matter,
9Standard Civil Contract Specification 2013 para 8.34. but where the first application is at appeal stage and a different
additional application is made, the second application will be a new matter.
10Standard Civil Contract Specification 2013 para 8.35. •If you are acting for several clients in relation to the same case, this should generally be one legal help matter. For example, where you have an asylum claim with a principal applicant and a family member who is dependent then this should usually be one matter. However, if there need to be separate applications or appeals for each family member, then separate matters may be opened. To determine that separate applications or appeals are needed, you must consider that each family member has a separate and distinct legal interest for which there is sufficient benefit to justify a separate matter. For example, where the family members are claiming asylum each in their own right there should normally be separate matters.
11Standard Civil Contract Specification 2013 para 3.39. 9.58A second matter start for the same client would not be justified on the same case unless at least six months have elapsed since the first matter was closed, or unless at least three months have elapsed and there has been a material development or change in the client’s instructions.
12Standard Civil Contract Specification 2013 para 3.36. If the client fails to give instructions and you close the file, and then the client returns, that is not a change in instructions. A decision, response, etc from a third party to an application, representations, correspondence etc made in the first matter is not a material development.
13Standard Civil Contract Specification 2013 para 3.37. Where further work is justified, but you cannot start a new matter under the rule, new disbursements can be claimed, as can profit costs if the case is an hourly rate case. You may claim new disbursements and profit costs if the case is an hourly rate case, or an escape fee case if the new work plus the old work would make it an escape fee claim.
14Standard Civil Contract Specification 2013 para 3.38. However, note that the previous relevant upper costs and disbursements limits will apply and you will need to apply for extensions where necessary.
9.59See chapter 3 for further information on how to report further work on a revived case and where a new matter would be justified.
Granting Legal Help
9.60The Legal Help means test as set out in chapter 3 must be applied. The only difference in the immigration category is that support under Immigration and Asylum Act 1999 s4 or s95 is a passporting benefit.
15Civil Legal Aid (Financial Resources and Payments for Services) Regulations 2013 reg 6(1). In all controlled work cases, the means of minors should not be aggregated with those of the local authority.
16LAA guide to determining financial eligibility for controlled work and family mediation (April 2015) v1 para 9.1.2. Proof of means will be required. Many asylum-seekers and migrants without leave who are not in receipt of support may be accommodated and maintained by friends and relatives. Where that is the case, you will need to get proof, usually in the form of a letter signed by the person accommodating the client and setting out the nature and extent of support being given (and quantifying it if it includes money). It is very important the letter is signed and dated and makes it clear that the support has covered the whole of the month prior to the date the form was signed.
17See also LAA guide to determining financial eligibility for controlled work and family mediation para 12.2.16. Letters which do not specify a time period since the support began have not been allowed as acceptable evidence of means at audit.
9.61The merits test is the sufficient benefit test – see chapter 3 for further information on the means test, and chapter 5 for further information on the merits test.
Granting Controlled Legal Representation (CLR)
9.62CLR is subject to the means test. The test is the same as for Legal Help, except that the capital limit for CLR is £3,000 for all non-asylum appeal work, rather than the £8,000 that applies to all other levels of civil funding.
18Civil Legal Aid (Financial Resources and Payments for Services) Regulations 2013 reg 8(3) – the limit is £3,000 for work in scope under LASPO Sch 1 Pt 1 paras 25–29 and 32(1)(immigration) but £8,000 for all other work, including paras 30 and 31 (asylum and asylum support). We know of no good reason as to why this provision should exist, but exist it does.
9.63CLR has its own merits test, which is set out at regulation 60 of the Civil Legal Aid (Merits Criteria) Regulations 2013 and which should be applied under Legal Help
19Standard Civil Contract Specification 2013 paras 8.62(c)–(d) and 8.102(a)(i). and kept in mind throughout once CLR has been granted. The test is, in addition to the standard criteria
20Civil Legal Aid (Merits Criteria) Regulations 2013 SI No 104 reg 39(a)–(e). (see chapter 5):
•if the case is not of significant wider public interest the reasonable private paying client test is met (reg 60(2)(a));
•if the case is of significant wider public interest, the proportionality test is met (reg 60(2)(b));
and, in either case, prospects of success are (reg 60(3)):
21The Civil Legal Aid (Merits Criteria) Regulations 2013 reg 60(3) amended by Civil Legal Aid (Merits Criteria) (Amendment) (No 2) Regulations 2015 and Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2016 SI No 781.(a)very good, good or moderate; or
(b)borderline, marginal or unclear, and –
(i)the case is of significant wider public interest;
(ii)the case is one with overwhelming importance to the individual; or
(iii)the substance of the case relates to a breach of Convention rights.
9.64Regulation 5 says:
‘borderline’ means that the case is not ‘unclear’ but that it is not possible, by reason of disputed law, fact or expert evidence, to–
(i)decide that the chance of obtaining a successful outcome is 50% or more; or
(ii)classify the prospects as marginal or poor;
‘Unclear’ means where there are identifiable investigations which could be carried out, after which it should be possible a reliable estimate of the prospects of success.
22Amended in July 2016 by the Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2016.‘marginal’ means a 45% or more chance, but less than a 50% chance, of obtaining a successful outcome.
23Inserted in July 2016 by the Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2016.9.65Regulation 7 says:
… the reasonable private paying individual test is met if the Director is satisfied that the potential benefit to be gained from the provision of civil legal services justifies the likely costs, such that a reasonable private paying individual would be prepared to start or continue the proceedings having regard to the prospects of success and all the other circumstances of the case.
9.66Regulation 8 says:
… the proportionality test is met if the Director is satisfied that the likely benefits of the proceedings to the individual and others justify the likely costs, having regard to the prospects of success and all the other circumstances of the case.
9.67Regulation 6(1) says:
… a case is of significant wider public interest if the Director is satisfied that the case is an appropriate case to realise–
(a)real benefits to the public at large, other than those which normally flow from cases of the type in question; and
(b)benefits for an identifiable class of individuals, other than the individual to whom civil legal services may be provided or members of that individual’s family.
9.68Regulation 2 says:
… a case with overwhelming importance to the individual’ means a case which is not primarily a claim for damages or other sum of money and which relates to one or more of the following –
(a)the life, liberty or physical safety of the individual or a member of that individual’s family (an individual is a member of another individual’s family if the requirements of section 10(6) are met); or
(b)the immediate risk that the individual may become homeless.
9.69The merits test applies to both First-tier and Upper Tribunal appeals.
9.70Where you are satisfied that the merits are either very good, good or moderate, you should sign the CLR form, and it is your signature (the client having already signed the form) that effects the grant since you are making the determination on behalf of the Director.
24Civil Legal Aid (Merits Criteria) Regulations 2013 reg 3.Refusing and withdrawing CLR
9.72A copy of the form must be provided to the client within five days of your decision, and you must also advise the client of their right to appeal against your decision.
9.73Either the client can appeal direct to the LAA, or instruct you to do so on their behalf. See paras 8.41 to 8.45 of the 2013 Specification. Again, this work is normally carried out under Legal Help.
Notifying the LAA
9.74Under the immigration specification, you are expected to notify the LAA of all grants, refusals and withdrawals of CLR, whether in relation to a substantive appeal or bail.
26Standard Civil Contract Specification 2013 para 8.44. However, this was no longer required from April 2013.
27Guidance for reporting controlled work matter starts, v15 para 3.1.Change of supplier
9.75A person’s remedy against a refusal of CLR would be to appeal to the LAA against a provider’s decision to refuse or withdraw CLR. If an appeal to the Independent Funding Adjudicator (IFA) is being considered, the applicant will have 14 days by which to submit the appeal to the Director of Legal Aid Casework.
28Civil Legal Aid (Procedure) Regulations 2012 reg 44(1).9.76Where you are asked to take on a transfer following refusal of CLR, you should generally advise the client to appeal to the IFA. However, there may be occasions where your specific experience and knowledge compel you to take a different view on the merits and grant CLR funding on this basis. But you will need to follow the usual rules for transfers of funding (see Chapter 5). If you re-assess and decide to grant funding, without your client having to appeal to an IFA, you will need to record details of your revised determination in section A6, paragraph 5 or 6 of the CW2 form. You may also wish to discuss your determination with a senior LAA caseworker.