The impact of the key ruling in Gudanaviciene over funding for immigration cases is being diluted by the Lord Chancellor’s failure to issue new guidance to Legal Aid Agency decision makers, say Catherine Meredith and Alison Pickup.
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) removed legal aid from most kinds of immigration case1The exceptions are: applications under the domestic violence rules for those on spousal visas or residing as spouses under EU law; applications based on rights arising under the Refugee Convention, EU Qualification Directive, EU Temporary Protection Directive, and articles 2 or 3 of the convention; applications made by those who are found to be victims of trafficking, either on ‘reasonable grounds’ or at the ‘conclusive decision’ stage under the National Referral Mechanism.
with effect from 1 April 2013.
The government’s justification was that immigration tribunals were user-friendly and accessible; individuals involved in immigration proceedings were not likely to be particularly vulnerable; and the issues were not generally complex, so that individuals would in the main be able to represent themselves.
When asked about cases where the individual is particularly vulnerable, the issues at stake are particularly important, or particularly complex, or the matter is proceeding in one of the higher courts, the government had no real answer. Its view, repeatedly restated, was that immigration cases were just not important enough to justify the retention of legal aid.
It was always reasonably clear that the government did not expect to have to make even the limited safety net of exceptional case funding (ECF) available for immigration cases. The Exceptional Funding Guidance published by the Lord Chancellor under LASPO s4 to guide caseworkers in the exercise of the power to grant ECF put that beyond doubt. The reason given in the guidance was that there is a clear and consistent line of domestic and Strasbourg authority that the fair trial rights guaranteed by article 6 of the convention do not apply to questions of immigration or of deportation. While the guidance recognised that the procedural protections inherent in article 8 of the convention might require the provision of legal aid in some cases, in relation to immigration cases, it stated that:
The Lord Chancellor does not consider that there is anything in the current case law that would put the [s]tate under a legal obligation to provide legal aid in immigration proceedings in order to meet the procedural requirements of article 8 [of the convention] (para 60).
The guidance (and the explanatory notes to LASPO s10) recognised that article 47 of the Charter of Fundamental Rights of the EU (the charter) contained an express right to legal aid2Article 47(3) of the charter provides ‘[l]egal aid shall be made available to those who lack sufficient resources insofar as such aid is necessary to ensure effective access to justice.’
where necessary to ensure effective access to justice, but was silent on the possibility that this might require funding to be granted in immigration cases where EU law was engaged.
The six claims that were heard together in R (Gudanaviciene and others) v Lord Chancellor and Director of Legal Aid Casework
 EWCA Civ 1622, 15 December 2014, each challenged the refusal by the director to grant ECF to the individuals concerned in respect of their immigration cases.3Some of the claims raised additional issues: B argued that refugee family reunion cases were actually still in scope because they were based on rights arising from the Refugee Convention and/or EU Qualification Directive. Collins J found in B’s favour on this issue but the Court of Appeal allowed the Director’s appeal; she is seeking permission to appeal to the Supreme Court. IS also brought a systemic challenge to the operation of the ECF scheme which was separated from the main challenges and is yet to be heard. LS challenged aspects of the treatment of victims of trafficking under LASPO as being incompatible with article 4 of the convention, the EU Trafficking Directive and the Council of Europe Convention on Action Against Trafficking in Human Beings. This article primarily focuses on the common issues amongst the cases involving article 8 of the convention and article 47 of the charter, and the approach to LASPO s10, rather than on these distinct issues raised in B and LS.
Three of these concerned appeals; two of which (Gudanaviciene and Reis), were EU nationals, who sought funding for representation in their First-tier Tribunal (FTT) appeals against deportation following criminal convictions, relying on article 47 of the charter; and a third, Edgehill, who sought funding for representation in her appeal to the Court of Appeal on article 8 grounds on a point of law (Edgehill v Secretary of State for the Home Department  EWCA Civ 402, 2 April 2014).
The further three remaining cases involved applications for leave to remain. One (IS) was a blind, mentally incapacitated man who acted by the Official Solicitor and sought funding in order for an application to the Home Office to regularise his immigration status in order to secure his entitlement to community care services. B was an Iranian refugee who sought advice about an application for family reunion with her husband and 14-year-old son whom she had left behind in Iran when she fled. LS was a victim of trafficking who needed advice in relation to an application for leave to remain before giving consent to a referral into the National Referral Mechanism (NRM) to be identified as a victim of trafficking. The director determined that none of these individuals required legal aid.4LASPO 2012 Sch 1 para 32(1) provides for legal aid to be granted to victims where there has been a determination by the competent authority that there are reasonable or conclusive grounds for believing that the person is a victim. Potential victims prior to formal identification by the competent authority must therefore seek ECF.
The key question for the court to decide was whether the withholding of legal aid in these immigration cases was a breach or would risk a breach of the claimants’ enforceable rights under article 47(3) of the charter or article 8 of the convention, contrary to LASPO s10. That involved looking at three main questions: (1) whether article 8 could ever require the grant of legal aid in immigration cases; (2) whether the guidance set too high a test in EU law cases under article 47; and (3) the correct approach to ECF determinations under s10. This article focuses on the first of these two issues as being of most practical importance to practitioners.
First, the key legal battleground in the Administrative Court was whether the procedural requirements of article 8 could ever require the provision of legal aid in an immigration case. The guidance recognised that the Strasbourg court had on at least two occasions found that the failure to provide publicly funded legal representation in family proceedings had led to a violation of article 8. However, the Lord Chancellor’s position was that there was no Strasbourg authority that had decided that article 8 requires the provision of legal aid in an immigration case; and, that immigration proceedings were excluded from the protection of article 6 because they do not involve the determination of civil rights or obligations (see Maaouia v France App No 39652/98, 5 October 2000, (2001) 33 EHRR 42; and RB (Algeria) and others v Secretary of State for the Home Department  UKHL 10, 18 February 2009). As such, it was argued that it would be a step too far for the domestic courts to hold that article 8 could require the provision of legal aid in an immigration case, and contrary to the principle in R (Ullah) v Special Adjudicator  UKHL 26, 17 June 2004, in which Lord Bingham said the duty of national courts in taking account of Strasbourg case law under Human Rights Act 1998 s2 ‘is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less’ (para 20).
The claimants’ position was that it was clear that there were procedural obligations inherent in article 8; that what was required was fairness and that individuals should have effective access to the decision-making procedure; that there was no principled reason for treating immigration cases differently from other kinds of cases, provided that article 8 was engaged; and that, on the contrary, there were particular features of immigration proceedings which made it likely that legal advice would be required to ensure effective access to a decision-making procedure.
A further key issue which arose in the three ‘application cases’ of IS, B and LS, was whether, even if legal aid might be necessary under article 8, it could ever be required at the pre-decision stage. As indicated above, article 6 is only engaged where a person’s civil rights or obligations are being determined; it requires the existence of a dispute before the rights it protects come into play. The case law on article 8 is not so limited, however, and refers to the need for effective access to the decision-making procedure seen as a whole.
Second, in the EU law cases, there was no dispute that article 47 was engaged. The ‘overarching question’ posed in the guidance was ‘whether the withholding of legal aid would make the assertion of the claim practically impossible or lead to an obvious unfairness in proceedings,’ a test which was taken from a decision of the European Commission of Human Rights in X v UK (1984) 6 EHRR 50, concerning the existence of an obligation to grant legal aid in article 6 cases. It was argued that this set the threshold for legal aid to be granted far too high, particularly, when read together with other parts of the guidance which referred to funding only being granted in ‘rare’ cases.
Decision of the Administrative Court:  EWHC 1840 (Admin), 13 June 2014
Collins J held that decisions refusing ECF by the LAA in six immigration cases had been unlawful. He held that the guidance, published to guide LAA caseworkers in deciding whether to grant ECF under LASPO s10 for cases outside the scope of s9 and Sch1, Part 1, was unlawful in three main respects: it set the threshold for finding that legal aid is necessary to prevent a breach of article 6 of the convention (and article 47 of the charter) too high; it failed to recognise that the procedural requirements of article 8 may require legal aid to be granted in immigration cases; and it gave incorrect guidance as to the circumstances in which legal aid must be granted because of the risk of a breach of rights under LASPO s10(3)(b).
Collins J found that the refusals to grant ECF in all six cases had been unlawful having regard to the risk of a breach of convention rights. In Gudanaviciene, Reis, and Edgehill, he quashed the decisions and was satisfied that legal aid should have been granted and directed the LAA now to do so. In S and IS, the decisions were quashed and reconsideration of the claims for ECF was ordered. In B, refugee family reunion was held to be in scope of legal aid and Collins J made a declaration to that effect; but he also declared that (in the event it was not in scope) the decision to refuse ECF was unlawful and legal aid should have been granted in any event.
Decision of the Court of Appeal:  EWCA Civ 1622, 15 December 2014
The director and the Lord Chancellor appealed to the Court of Appeal against all of Collins J’s findings in all six cases. However, shortly before the hearing in the Court of Appeal, they conceded the case of IS, agreeing to grant him legal aid in connection with his application. In making that concession, the Lord Chancellor and the director also conceded two of the key legal issues in the appeal, namely:
(1) they accepted that article 8 could require legal aid to be granted in an immigration case;
(2) they accepted that such a requirement could in principle arise at the application stage, before any decision had been made on the individual’s application.
Nonetheless, they sought to confine their concession to the facts of IS’s case which the Court of Appeal described as ‘extreme’, and continued to challenge the findings of Collins J in respect of article 8 in the other cases. The Court of Appeal found that the concessions of principle had been rightly made, holding that:
There is no reason in principle why the article 8 test articulated by the ECtHR in cases such as W v UK [(1988) 10 EHHR 29] should not apply in immigration cases. So much is now common ground. The fact that immigration decisions do not involve the determination of civil rights means that article 6(1) cannot be invoked in relation to such decisions. But it does not follow that the procedural obligations of article 8 do not apply to immigration decisions … Article 8 is frequently engaged in immigration decisions. The procedural protections inherent in article 8 are necessary in order to ensure that article 8 rights are practical and effective. The necessity for this is at least as important in immigration cases as in any other cases… (para 69)
It held that the guidance was wrong because it incorrectly stated that article 8 could not require legal aid to be granted in immigration cases (paras 73–75), and wrongly said that it would only be in cases which were ‘closely analogous’ with the Strasbourg cases of P, C and S v UK (2002) 35 EHHR 31 and Airey v Ireland (1979) 2 EHRR 305 to which it referred. It would be necessary in each case to apply the test in W v UK (1988) 10 EHHR 29 at para 64 (whether the individual has ‘been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests’), and to take account of the factors to which the court had referred at para 72 of its judgment, namely:
… (a) the importance of the issues at stake; (b) the complexity of the procedural, legal and evidential issues; and (c) the ability of the individual to represent himself without legal assistance, having regard to his age and mental capacity. The following features of immigration proceedings are relevant: (i) there are statutory restrictions on the supply of advice and assistance (see section 84 of the Immigration and Asylum Act 1999 ); (ii) individuals may well have language difficulties; and (iii) the law is complex and rapidly evolving (see, for example, per Jackson LJ in Sapkota v Secretary of State for the Home Department  Imm AR 254 at para 127).
At para 77, the Court of Appeal emphasised that:
Deportation cases are of particular concern. It will often be the case that a decision to deport will engage an individual's article 8 rights. Where this occurs, the individual will usually be able to say that the issues at stake for him are of great importance.
This recognition that there are particular features of immigration cases which are likely to point towards legal aid being granted, including the statutory restrictions on who may provide advice, the language difficulties, and the complexity of the law, as well as the likely importance of the issues for the individuals concerned, is directly contrary to the position taken by the government during the consultations that preceded LASPO and debates during the passage of the bill and must be given close attention.
The Court of Appeal also found the guidance was incompatible with the requirements of article 6 of the convnetion and article 47 of the charter:
(1) ‘[T]he key question is said to be whether legal aid is necessary for “effective access to the court”. The approach in Airey v Ireland, (as developed in the subsequent case-law) is consistent with, but more comprehensive than the approach in X v UK; it should be regarded as articulating the relevant law’ (para 42).
(2) The cumulative effect of passages in the guidance misstates the ECtHR jurisprudence and sends a ‘signal to the caseworkers and the director that the refusal of legal aid will amount to a breach of article 6(1) only in rare and extreme cases’ (para 45).
(3) The general Strasbourg principles are clear. The grant of legal aid will depend on the circumstances of the case (para 56). That applies ‘with equal force to article 47(3) of the charter’ (para 59).
Applying these principles to the individual cases, the court dismissed the appeals from Collins J’s decisions that ECF should have been granted in the cases of Gudanaviciene, Reis and B. It allowed the appeals in LS and Edgehill.
The Lord Chancellor and the director applied for permission to appeal to the Supreme Court against the court’s decision that ECF should have been granted in B
’s case, arguing that legal aid was not required under article 8 at the application stage other than in extreme cases such as that of IS. On 2 April 2015, the Supreme Court refused the application for permission to appeal on the ground that it did not raise an issue of law of general public importance.5An application by Edgehill for permission to appeal was also refused on the same date. B has since applied for permission to appeal against the decision that refugee family reunion cases are not in scope, and LS has applied for permission to appeal on the trafficking issues; those applications are still under consideration by the court.
Impact of the judgments
In spite of those two judgments and an announcement before the Court of Appeal by counsel for the Lord Chancellor that in light of the judgment, new guidance would be issued, almost four months later, it is nowhere to be seen. We do not know what, if anything, caseworkers are being told to look at; and we do not know when the new guidance can be expected.
In the report on the impact of changes to civil legal aid under LASPO Part 1, published on 12 March 2015, the Justice Select Committee stated:
45. The exceptional cases funding scheme has not done the job Parliament intended, protecting access to justice for the most vulnerable people in our society. This is because of the failure of the Legal Aid Agency, and the Lord Chancellor’s Guidance, which was recently held to be unlawful, to give sufficient weight to access to justice in the decision-making process. The wrongful refusal of applications for exceptional cases funding may have resulted in miscarriages of justice. All agencies involved must closely examine their actions and take immediate steps to ensure the exceptional cases funding scheme is the robust safety net envisaged by Parliament.
46. The Legal Aid Agency compounded its error in mismanaging the exceptional cases funding scheme by failing to appreciate that the very low number of grants compared to the Ministry of Justice’s estimate was a sign that the process was not working as Parliament intended. Urgent investigative and remedial action was required, and in failing to take it the Legal Aid Agency and the Ministry of Justice were failing to focus legal aid on the most serious cases and the most vulnerable litigants, which was their declared objective. (Eighth report of session 2014-5, HC 311 of 12 March 2015)
On 8 April 2015, the Immigration Law Practitioners’ Association (ILPA) wrote to the LAA for confirmation of its position/clarification on ECF and to ask when we can expect guidance to be published. In the meantime, applicants for legal aid and their lawyers are left guessing how the agency is interpreting the guidance given by the Court of Appeal, and whether it is still applying the guidance which the Court of Appeal found to be unlawful.
Meanwhile, practitioners are encouraged to make applications for ECF clearly stating why it is required and carefully tailored to the individual facts and specifying the importance of what is at stake for the individual.