The success of the residence test judicial review was widely applauded by legal aid lawyers. What is less well known is that this key challenge relied in part on funding from the Strategic Legal Fund. Sue Lukes explains how the fund works, and the ways in which more practitioners could benefit from its support.
In January 2014, expedited permission (and a protective costs order) was granted for a judicial review of the government’s proposals to apply a residence test to legal aid. Bindmans, representing the Public Law Project, had presented ‘a detailed and carefully framed argument about the clear failure of the Ministry of Justice to adequately discharge its common law and section 149 Equality Act 2010 evidence gathering and analysis duties’. The application was supported by an exceptional bundle of 596 pages of material, including witness statements from a wide range of NGOs, representative bodies, private firms and individuals. Some of the material had been presented to the Parliamentary Joint Committee on Human Rights, and its conclusions that ‘[w]e do not consider that the removal of legal aid from vulnerable children can be justified and therefore we recommend that the Government extend the exceptions further by excluding all children from having to satisfy the residence test’ were, in turn, presented to support the judicial review. The Office of the Children’s Commissioner, contacted by Bindmans as part of the evidence-gathering, got permission to intervene in the case.
Legal Action readers know the result: Moses LJ, with the agreement of Collins J and Jay J, found the proposed test ultra vires, discriminatory and unlawful restating the proud principle: ‘All are equally subject to the law, resident or not, and equally entitled to its protection.’ The proposed regulations were withdrawn.
By the time of the judgment, Bindmans had already sent their end of grant report to the Strategic Legal Fund for Vulnerable Young Migrants (SLF), which provided funding of about £8,000 for the pre-litigation research. Without SLF funding, they said, it was ‘likely that a far less extensive evidence-gathering exercise would have been undertaken, perhaps involving contact with only a handful of representative organisations. Without it, the case would not be anywhere near as strong.’ It had ‘helped lay strong foundations for a very important piece of public interest litigation’.
What does the SLF fund?
Initially set up in 2011 by the Diana Princess of Wales Memorial Fund, a year later the SLF transferred to Trust for London and continued to thrive. As of 2015, five independent funders (Trust for London, Esmée Fairbairn Foundation, Unbound Philanthropy, Paul Hamlyn Foundation, Joseph Rowntree Charitable Trust) contribute to the fund, which is managed by MigrationWork CIC.
SLF supports work with a reasonable prospect of making changes to law, policy or practice that will benefit a significant number of young migrants. Some grants, such as that for the pre-litigation research on the residence test, may help a wider group of people, but work must bring substantial benefits to young migrants or focus specifically on them. Funding is available exclusively to organisations that can take legal action, to cover the costs of:
•pre-litigation research and development of cases, and
•third-party interventions in existing cases (which allow a non-party intervener to assist the court, acting as an amicus curiae).
While the majority of grants are to NGOs, Bindmans is not the only private law firm to have received SLF funding: Luqmani Thompson has researched whether young migrants subjected to Operation Nexus (a joint operation between the Home Office and the Metropolitan Police to deal with foreign national offenders) have had a fair hearing when facing possible deportation or removal.
•Hansen Palomares is looking at discrimination against migrants in the private rented sector and the effects of the landlord checking rules in the Immigration Act 2014.
•Deighton Pierce Glyn has worked in partnership with the charity Kalayaan on human trafficking.
The SLF covers the whole of the UK and is keen to encourage applications from all legal providers with relevant expertise. Grants of up to £30,000 are awarded, though average grant is around £12,000. Applicants are encouraged to maximise resources by using pro bono legal input where possible.
Where do I sign up?
Applications to SLF are made online via Trust for London’s website. Prospective applicants (particularly private firms that may have not have made grant applications before) should first read the SFL funding guidelines and contact project manager Gerry Hickey with any questions. An expert panel of lawyers and policy experts in the field, chaired by Manjit Gill QC, meets every two months to review applications and make recommendations to inform the funders’ decisions, which are made immediately. Emergency applications can be made where needed.
To maximise the impact of SLF-funded work, successful applicants are asked to make the results of their research available as widely as possible, where this will not prejudice future legal action. This material is made available via the online archive of SLF material, hosted by Coram Children’s Legal Centre. The archive is especially useful for those looking to develop an application since it enables them to build on what has gone before.
The AIRE Centre
The Court of Justice of the European Union (CJEU) delivered judgment in the case of Saint Prix v Secretary of State for Work and Pensions Case C-507/12 on 19 June 2014. SLF funding allowed the AIRE Centre, which was bringing a third-party intervention in the case, to fly its legal team to the CJEU to make submissions. The case focused on the position and benefit entitlements of EU citizens who temporarily stop working in the late stages of pregnancy in order to have their baby. The particular issue for Jessy Saint Prix was whether she remained a ‘worker’ under EU law during that period. The judgment means an EU national who has not yet obtained permanent residence and gives up work in the late stages of pregnancy is entitled to income support if they are on a low income. It also put the rights of EU nationals on a par with British women, who are entitled to income support in the late stages of pregnancy and the aftermath of childbirth. So pregnant women are no longer discriminated against, or deprived of the basic protection to which they are entitled, in the exercise of their freedom of movement as EU workers and are protected from becoming destitute.
Ealing Law Centre
Ealing Law Centre’s Project for the Registration of Children as British Citizens was awarded £20,000 of SLF funding to undertake pre-litigation research on three areas concerning the registration of children as British citizens: the fee requirement; the narrow interpretation of the law; and the failure by the Home Office to give proper reasons in refusing applications for registration. The research report produced (Systemic Obstacles to Children’s Registration as British Citizens) is available via the SLF archive. In September 2014, the Law Centre announced a victory on behalf of Danny, aged 18, who had lived in the UK since he was 3 but was refused citizenship. A successful challenge in the High Court (DR v SSHD CO/2795/2014) got him his citizenship (the first time a case like this has been won) and means he can now take up his place at drama school. Ealing Law Centre has now made another successful application to the SLF to research the extension of the use of the ‘good character’ requirement to children as young as 10 applying for citizenship.
Asylum Support Appeals Project
In September 2014, SLF funded the Asylum Support Appeals Projects (ASAP), represented by Public Law Solicitors, to intervene in the case of a destitute former asylum seeker, with outstanding representations, who had been refused support by the Home Office.1R (Mulumba) v First-tier Tribunal (Asylum Support) v Secretary of State for the Home Department, 2 February 2015.
The Home Office routinely refused support for such cases where the outstanding representations did not constitute a ‘fresh claim’ on grounds of persecution or risk, but were on the basis of rights under article 8 of the European Convention on Human Rights. The SLF offered funding to cover:
•preparation and drafting of the application to intervene;
•research to demonstrate the numbers of migrant children and young people affected; and
•legal research, preparing submissions and seeking agreement on costs.
On 2 February 2015, the Home Office conceded and the case was settled. ASAP has produced a briefing on this result, which has secured support for many vulnerable young migrants and children.
The SLF does not seek to fill gaps left by legal aid cuts, but to advance and develop the law in relevant fields. For private practice and NGOs, it can offer the opportunity to buy time to think, read and discuss: not readily available in most legal workplaces now. It can provide the resources to develop work in partnership with a non-legal NGO that has come across an important issue requiring strategic legal action. The SLF has proved particularly useful for interventions because it is quick to respond and can draw on expert advice on the usefulness and possible success of the approach.
There are a number of things to consider to ensure success with your application:
•Identify the issue: remember that the SLF is only interested in issues that may have a significant impact on the lives of vulnerable young migrants and that are amenable to strategic legal action.
•Are you the best people to take this up? Be prepared to give details of your legal experience and expertise in this area.
•Have we already funded work on this? Check the SLF website and archive, and consider contacting past grantees to discuss whether and how your issue may be different.
•Do a small amount of research to establish (roughly) how many vulnerable young migrants are affected. We appreciate that data on this may not be easily available, but telling us about the numbers both shows us that you know about the field and enables us to measure the relative importance of your application against others. You may have information from your own caseload, or those of relevant NGOs, that can enable some educated guesses and we may be able to advise on data sources. We also need to know about the history of legal action in this area, which reassures us that you have the necessary experience and expertise.
•Discuss the application with us. Even if you are absolutely sure of what you want to apply for, it does help to contact us in advance. We may be able to suggest other angles and we may know that there are other applications pending on similar topics. We can also advise on the right documents to include and may ask people on our expert panel for help where needed.
•Develop your partnership (if you have one). A simple note of the respective roles, timetables and targets, and a clear arrangement about the money, will help a lot. If the NGO partner is already funded to do this work, tell us. If it is not, include its costs in your budget.
•Be clear about the money. We pay legal aid rates for legal work. We expect a specified pro bono contribution of lawyers’ time to be included. Provide details that allow us to see whether your application represents good value for money. We will ask for your latest accounts and other due diligence documentation.
•Give yourself enough time. Emergency applications are only for real emergencies (eg court or implementation dates). Build in time to discuss things with us and to collect the information you need. The online application process is straightforward, but allow yourself a day or two in case of any technical hitches.