Legal aid for immigration cases
While immigration cases are broadly out of scope of LASPO, this exclusion is subject to a number of limitations. Alison Harvey looks at those areas where public funding for representation and advice remains available.
Legal aid may be down, but it’s not out completely – at least not yet. Legal Action’s ‘Use it or lose it’ series aims to highlight what remains of legal aid, and to show practitioners how they can make the most of it to help their clients obtain much-needed access to justice.
On any application of the tests the government propounded in the consultation that preceded the Legal Aid, Sentencing and Punishment of Offenders Bill, immigration as well as asylum should have remained within the scope of legal aid:
… the importance of the issue, the litigant’s ability to present their own case (including the venue before which the case is heard, the likely vulnerability of the litigant and the complexity of the law), the availability of alternative sources of funding and the availability of alternative routes to resolving the issue … our domestic, European and international legal obligations (para 4.12).
However, in broad terms, immigration cases are out of scope; asylum cases are in. But the exclusion of immigration is subject to a number of limitations, as described below.
Challenges to immigration detention
Legal aid for bail, temporary admission or release, including challenges to conditions applied on release, remain within scope (LASPO Sch 1, Pt 1, paras 25–27). There is no legal aid for the detainee’s substantive immigration application. The entitlement to legal aid for bail etc continues when the substantive application and any appeals have been determined (Immigration and Asylum Specification (IAS) 2013, paras 8.36–8.40).
Exclusive contracts have been let for controlled work for those detained in a number of immigration removal centres. Existing representatives who have done more than five hours’ work (exclusive of travel and waiting) on the case of a close family member, or on the case of the person detained prior to that person’s detention, can continue to represent the person detained, subject to considering, whether it is in the client’s interests to refer the matter to another representative (IAS para 8.6).
Matters opened by those with exclusive contracts following seeing the person in an on-site surgery or for a person in the detained fast-track are paid at hourly rates. Applications for bail are paid at hourly rates (IAS para 8.77).
Certificated work for persons in detention can be carried out by those with or without a contract.
There are no exclusive contracts in prisons and the lawyer whose immigration client is taken into prison is normally expected to act (IAS para 8.47).
Applications for indefinite leave to remain under the domestic violence immigration rules (LASPO Sch 1 Part 1 para 28; Immigration Rules Part 8 para 289A and Appendix FM Section DVILR) and for EEA residence permits on the basis of retained rights of residence as a result of domestic violence (LASPO Sch 1 Part 1 para 29) remain within scope.
Thus, for applications under the Immigration Rules, legal aid is limited to those survivors of domestic violence who have leave under the Immigration Rules as spouses, partners or cohabitants of British citizens or settled persons or who have leave outside the Immigration Rules as the spouses or partners of persons present and settled in the UK.1Email from Davinder Sidhu, Legal Aid Agency to Solange Valdez, 31 May 2014, copy held on file at ILPA.
Legal aid does not extend to persons in the UK on another basis, such as spouses of refugees or of workers, or to children or other family members who have suffered domestic violence.
Following amendment, domestic violence is defined as:
… any incident, or pattern of incidents, of controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other (within the meaning of section 62 of the Family Law Act 1996) (LASPO Sch 1 Part 1 para 29(4)).
Thus, the source of the abuse need not be the partner but can be another family member.
Advice and assistance with an application under the Destitute Domestic Violence Concession scheme can be claimed as part of the advice given under this head.2Email of John Facey, Legal Aid Agency to Solange Valdez, of 28 January 2014, copy held on file at ILPA.
There is no additional legal aid for this however; work comes out of the fixed fee unless the case reaches the escape threshold.
As to applications under EU law, LASPO Sch 1 Part 1 para 29 covers only those whose marriage or partnership has terminated and who fulfil Immigration (European Economic Area) Regulations 2006 SI No 1003 reg 10(5) and in particular reg 10(5)(d)(iv). Those who have not yet divorced and cohabitees are not within the scope of the regulations. This builds on the extremely restrictive interpretation of article 13 of Directive 2004/38/EC in the UK regulations. It is, however, a stand-alone definition for legal aid purposes.
Legal aid is not available for attendance at interview in these cases (LASPO Sch 1 Part 1 para 29(3)).
Trafficking, slavery, forced or compulsory labour
A ‘protection’ claim (for recognition as a refugee or for humanitarian protection) looks forward to future risk, rather than back to past suffering and, thus, not all trafficked persons can make an asylum claim. Some will, however, receive initial advice on whether they are eligible to make such a claim, funded as asylum work.3Under LASPO Sch 1 Part 1 para 30. Where a person receives advice on an asylum case but in the end decides not to claim asylum, the amount that can be claimed is limited to £100 inclusive of disbursements (IAS para 8.80(a)(ii)).
Legal aid is available for any application for leave to enter or remain for someone who is a victim of trafficking as defined (LASPO Sch 1 Part 1 para 32). However, the person must show that there has been a positive reasonable grounds determination under the National Referral Mechanism that they are a potential victim of trafficking and that the second stage conclusive grounds decision is pending or is in their favour. Legal aid for victims of trafficking making an asylum claim will thus extend to cover any connected immigration matter. The immigration and asylum work will be treated as a single matter start (IAS para 8.34).
An application for legal aid for licensed work under LASPO Sch 1 Part 1 para 32(1) must be made within 12 months of a positive conclusive grounds determination or on or after the date of positive reasonable grounds decision and before leave to remain outside the rules expires (Civil Legal Aid (Procedure) Regulations 2012 SI No 3098 reg 31(8)).
There is no appeal against a negative reasonable grounds decision, so any challenge is by way of judicial review (LASPO Sch 1 Part 1 para 19) and would thus qualify for funding with or without para 32.
Section 47 of the Modern Slavery Act 2015 makes provision for legal aid for victims of slavery, servitude, forced or compulsory labour, as defined, on the same terms as legal aid is provided to victims of trafficking. It is not yet in force. Following the recommendation in its review of the National Referral Mechanism,4Review of the National Referral Mechanism for Victims of Human Trafficking, Home Office, November 2014, at para 6.3.11.
the government announced during the passage of the Modern Slavery Act 2015 that it will pilot moving the reasonable grounds decision to an earlier stage in the process, from the moment of referral to the National Referral Mechanism, with the consequence that legal aid will be available from this earlier stage.5HL Report, 23 Feb 2015, col 1526, per Lord Bates.
Special Immigration Appeals Commission
All proceedings before the commission remain in scope (LASPO Sch 1 Part 1 para 24). Whatever your lawyer can or cannot do for you in practice in closed material procedures, the politics of a procedure where an appellant is at such manifest disadvantage would make it difficult to deny legal aid to those appearing before the commission. While these cases are subject to a means test, it is accepted that the merits test is met. Work is paid at hourly rates and is normally funded as licensed work, not under controlled legal representation (IAS para 8.77(n) and Civil Legal Aid (Merits Criteria) Regulations 2013 SI No 104 para 23(a)).
Appeals and advocacy
Wherever an immigration matter, including bail, is within scope, so is an appeal to the tribunal and advocacy in the higher courts (LASPO Sch 1 Part 3 paras 11 and 13), subject to satisfying the relevant means and merits tests.
In addition, where, and to the extent that, the appeal is about a breach of obligations under the Equality Act 2010, legal aid is available for advocacy in the First-tier Tribunal and the Upper Tribunal for cases on deprivation of citizenship under British Nationality Act 1981 s40A and for appeals against refusal of applications under Immigration (European Economic Area) Regulations 2006 reg 26 (LASPO Sch 1 Part 3 para 12).
Advocacy in judicial reviews within the Upper Tribunal is also funded (LASPO Sch 1 Part 3 paras 18, 19).
Legal aid is available for judicial review in immigration as in other areas of law (LASPO Sch 1 Part 1 para 19). Immigration cases are affected by the restrictions on judicial review specific to immigration and asylum cases. The exceptions bar legal aid for judicial review in ‘an issue relating to immigration’ in two circumstances:
Firstly, where: (1) the same issue, or substantially the same issue, was the subject of a previous judicial review or an appeal to a court or tribunal; (2) that court or tribunal found against the would-be claimant; and (3) less than a year has elapsed since the day of that previous determination (LASPO Sch 1 Part 1 para 19(5)). Very many judicial reviews with good prospects of success will be able to satisfy this test, but it is necessary for lawyers to identify clearly what is new in their judicial review challenge and has not previously been litigated.
Secondly, in a judicial review of removal directions where the directions were given a year or less after the latest of: (1) the making of the decision (or the latest decision) to remove the person from the United Kingdom ‘by way of removal directions’; (2) refusal of leave to appeal against that decision; or (3) the determination or withdrawal of that appeal (LASPO Sch 1 Part 1 para 19(6)).
Specific authorisation is made for advocacy in judicial reviews before the Upper Tribunal (LASPO Sch 1 Part 3 paras 18, 19).
Against this backdrop, it is no coincidence that the challenge to the exceptional funding regime was mounted on the basis of immigration cases. R (Gudanaviciene and others) v Lord Chancellor and Director of Legal Aid Casework and another  EWCA Civ 1622, 15 December 2014, concerned six cases: one was of a trafficked person (LS); another was of a refugee seeking family reunion (B); three were deportation cases with two involving points of EEA law; and one (IS) was a Nigerian national, blind and with mental problems of such severity that he lacked litigation capacity, who needed to sort out his immigration status before he could access the health and community care support of which he stood in such sore need. The Court of Appeal held in this case:
There is no reason in principle why the article 8 test articulated by the ECtHR in cases such as W v UK 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 … (para 69)
… To summarise, in determining what constitutes effective access to the tribunal (article 6(1)) and what constitutes sufficient involvement in a decision-making process (article 8), for present purposes the standards are in practice the same (para 70).
It went on to hold that article 8 required the provision of legal aid on an exceptional basis to IS and to B.
Under the rules on connected matters (Civil Legal Aid (Connected Matters) Regulations 2013 SI No 451), where an immigration case is connected with a case within scope (for example, an asylum case), the immigration case will not be within scope. One example is that of separated children refused asylum but granted discretionary leave to remain on the basis that no arrangements could be made for their safety and welfare on return. Until 6 April 2015,6See the Immigration Act 2014 (Commencement No 4, Transitional and Saving Provisions and Amendment) Order 2015 SI No 371.
when Nationality, Immigration and Asylum Act 2002 s83 was repealed for all purposes by Immigration Act 2014 s15(3), some of these children were denied a right of appeal against the refusal of asylum because the discretionary leave granted them was for less than 12 months. They had to wait until the secretary of state moved to remove them at age 17½ to be able to appeal. There are profound professional and ethical difficulties for a lawyer in taking on an asylum case in circumstances where immigration is a connected matter. For example, what is counsel to do where a solicitor has only accepted instructions in the asylum case, and has only instructed counsel on an immigration case? As the debate as to whether the Lord Chancellor need be a lawyer rages,7The Office of the Lord Chancellor, House of Lords, Select Committee on the Constitution, 6th Report of Session 2014–2015, 11 December 2014.
matters such as this are worthy of particular attention.