Exceptional funding: ‘a human rights safety net’?
Mary-Rachel McCabe, a journalist with an interest in social and criminal justice, discovers whether the coalition government’s description of the exceptional funding scheme as ‘a human rights safety net’ was merely to sweeten the bitter pill of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 as it made its way through parliament two years ago.
Cutting all but asylum and detention out of scope in the immigration law sphere, the passing of the LASPO Act into law caused outcry among legal aid lawyers as concerns grew for vulnerable migrants whose strong human rights cases would fail to be funded under the new provisions. The Ministry of Justice (MoJ) responded to this dissent by emphasising the exceptional funding provision under section 10 of the Act, which ministers said would ‘provide funding for excluded cases where, in the particular circumstances of a case, the failure to do so would be likely to result in a breach of the individual’s right to legal aid under the Human Rights Act 1998 or European Union law’.1Reform of legal aid in England and Wales: the government response, June 2011, para 128, available at: www.official-documents.gov.uk/document/cm80/8072/8072.pdf.
The MoJ estimated at the time that there would be 5,000–7,000 exceptional funding applications in the first year of the LASPO Act, following its coming into force on 1 April 2013. However, according to the Public Law Project (PLP), by November this year only 893 exceptional funding applications had been made to the LAA and, of those, only 23 exceptional funding grants made. What is more, 13 of those funding grants were for inquests, which were usually awarded under the previous exceptional funding scheme, and so do not reflect any of the LASPO Act scope cuts. The chances of a successful exceptional funding grant for a non-inquest civil case, according to the PLP, is just over one per cent – a ‘profoundly worrying’ statistic, it says.
So, where did it all go wrong? In September this year, the British Red Cross examined the process of applying for exceptional funding for legal aid for refugee family reunion cases in South Yorkshire, the results of which show the exceptional funding provisions to be not a ‘safety net’, but in fact a ‘highly complex’ set of rules that are ‘inaccessible to service users’.
An impenetrable process
According to Becky Lehane, family reunion travel assistance co-ordinator for the South Yorkshire branch of the Red Cross, since refugee family reunion cases were removed from scope on 1 April, the non-governmental organisation has experienced ‘a noticeable increase in the enquiries relating to the issue’. These enquiries are coming from people who ‘don’t know where to go or how to make the family reunion application’. ‘Refugees are supposed to have an automatic right to bring their families here,’ said Becky Lehane. ‘But in reality they simply don’t.’ Becky Lehane said that, in South Yorkshire alone, she is receiving around 20 family reunion enquiries a month. ‘This is completely new,’ she said. ‘The numbers of people in this situation – with their families abroad and unsafe – is constant.’ Becky Lehane found that none of the service users who made enquiries about family reunion after 1 April had been able to find a legal adviser willing to apply for exceptional funding on their behalf, which is what led the Red Cross to look into the application process.
With the support of the PLP and a volunteer, Amy Murtagh, the Red Cross initially took on three service users to support them with their applications for exceptional funding. Despite assistance from the PLP, which is running a specific project to assist individuals with exceptional funding applications, Amy Murtagh found the application process to be procedurally and legally complex, and disproportionately time-consuming. ‘It was a nightmare, to be honest,’ said Amy Murtagh. ‘From the outset, it struck me as an impenetrable process.’
One service user, a Syrian national, decided not to continue with the application process because of the length of time it would take and the uncertainty of a positive outcome. Both other applications – by Kuwaiti nationals – were refused on the ground that a refusal of legal aid would not amount to a breach of the clients’ rights under article 8 of the European Convention on Human Rights.
A miserable situation
The deleterious effects of this process on the clients are palpable. Khalid arrived in the UK from Kuwait in August 2011. He was granted asylum by the government, but his wife and six children are still stuck in Jordan because he could not get funding for a family reunion application. ‘I can’t wait for another six months or one year with my family in Jordan,’ he said. ‘I already waited more than two years.’ Khalid is struggling to support his family with the income he receives on jobseeker’s allowance (JSA): ‘I tried to get work but I can’t. It is very expensive for them to live there and I only get £71 per week.’
When Khalid was informed by his solicitor that he would not be able to get legal aid for his family reunion application he was ‘shocked’. ‘It was a very miserable situation … I didn’t know what to do.’ When his exceptional funding application was refused by the LAA, he was left with no choice but to borrow money from friends in order to pay a private solicitor. ‘I borrowed a lot of money from friends and I cannot pay it back,’ said Khalid. He continued: ‘I try to save my JSA, but it is hard and I have nothing left to live on here … It feels like the government are telling me “we don’t want you here”.’
Thokma, another Red Cross service user, arrived here in July 2011 and was granted asylum a month later. His wife and two children are also in Jordan. ‘The Home Office told me it would be easy to get my family here once I had my papers,’ said Thokma. ‘But it is very difficult.’ Thokma has also been forced to borrow money from friends to pay a private solicitor to assist with his family reunion application, following the refusal of his exceptional funding application. ‘[The government] have put me under financial pressure,’ said Thokma. He now has a job from which he earns £200 a week, but he already owes over £2,000 to friends who have helped with his legal fees, and he is sending some of his wages to his family in Jordan every week. ‘Part of the human rights is for me to be reunited with my family, but the British government won’t let me,’ said Thokma. ‘I think it’s wrong for the government to do something like that, especially to refugees.’
Extraordinarily exceptional funding?
The Red Cross is not alone in encountering difficulties with exceptional funding applications. Carita Thomas, an immigration solicitor at Howells Solicitors in Sheffield has made two – both in refugee family reunion cases – and both were refused at the first instance, and again on appeal. Carita Thomas reckons that the LAA’s reasoning is ‘poor’. In one of her applications, for example, the LAA said that her detailed representations would be sufficient to assist her client in making his own family reunion application.
‘[The LAA] consistently say that family reunion applications are simple to do,’ said Carita Thomas. ‘But it’s not a simple case of filling in a form; it’s a process that you have to engage with throughout and you need a representative’s assistance, especially if your English is poor, or you have mental health problems, as one of my clients does.’
Carita Thomas spent about six hours on her first exceptional funding application, and further hours discussing the refusal and appeal with her client. As the application was refused, she will not be able to claim any reimbursement. So, will the low prospects of success put other lawyers off making the application in the first place? ‘Absolutely,’ said Carita Thomas. ‘There’s no way that firms can stay in business if they have to do this.’
Roopa Tanna, a solicitor at Islington Law Centre®, in north London, agrees. ‘The majority of solicitors are not going to make exceptional funding applications,’ said Roopa Tanna. ‘They are too time-consuming and there is too big a financial risk. It’s just not sustainable.’ Roopa Tanna has only made one exceptional funding application for a refugee family reunion case but it, too, was rejected by the LAA at the first hurdle and again at appeal stage. She has now issued proceedings in the High Court to judicially review the decision.
A fig leaf, not a safeguard
The resulting underuse of the exceptional funding provision of the LASPO Act has led the PLP to conclude that it is ‘a fig leaf, not a safeguard’.2Exceptional funding: a fig leaf, not a safeguard, PLP, 8 July 2013, available at: www.publiclawproject.org.uk/data/resources/10/exceptional_funding_blog.pdf.
Martha Spurrier, formerly of PLP, who is now a barrister at Doughty Street Chambers in London, put this to Dr Elizabeth Gibby, deputy director legal aid and legal services policy, Law and Access to Justice Group at the MoJ, at the Legal Aid Practitioners Group annual conference in October (see November 2013 Legal Action
7). ‘The fact that the numbers are much lower than we in the MoJ planned for shows that we were uncertain how many to plan for,’ said Dr Gibby. ‘We made the wrong assumption – it doesn’t mean the policy is wrong or that the LAA is operating the scheme in the wrong way.’ Dr Gibby went on to reiterate that it is an ‘exceptional’ provision – and therefore high numbers of grants should not be expected.
Chris Johnson, partner at the Community Law Partnership in Birmingham, put the same point to Lord McNally, the former minister for legal aid, at a meeting in October. ‘We said we think the low number of grants is either because the LAA are making bad decisions or they’re too narrowly interpreting the criteria and guidance,’ said Chris Johnson. ‘McNally accepted that the success rate was extraordinarily low. But he didn’t say what was going to happen next.’
So, what should happen next? Tom Hamilton-Shaw, policy and advocacy coordinator at the Red Cross, reckons that there is a strong case for improving the family reunion form itself, to make it simpler for pro bono advisers or charities to assist clients with the application. This, however, raises the argument of whether pro bono can or, indeed, should replace state-funded legal aid. Perhaps if any form ought to be simplified, it is the exceptional funding application itself, so that it truly does become the ‘safety net’ the government envisaged.
Of course, the ultimate solution to the problem would be to reinstate legal aid for family reunion cases. Tom Hamilton-Shaw sees a strong argument for this in ‘complicated cases’, at least, as refugees have already suffered enough, so the government should not be preventing them from bringing ‘something so critically important to their well-being’ [their families] into the country.
In October, Home Secretary Theresa May tabled the now infamous Immigration Bill. It was reported that, when interviewed on BBC Radio’s ‘Today’ programme, the Home Secretary said that the bill was an attempt to ‘create a really hostile environment for illegal migrants’. For many refugees, who have already been put under a great deal of stress throughout the asylum process, the isolation caused by prolonged separation from their families means that the Home Secretary has already achieved her goal. As Thokma so aptly put it: ‘The British government – they have the law protecting the human rights, but I can’t find it.’