R (Gudanaviciene and Others) v Director of Legal Aid Case Work and Lord Chancellor
ATLEU acted for S, a victim of trafficking, which was one of six joint cases challenging the refusal of legal aid (exceptional funding) for immigration matters. In a judgment handed down on 13 June 2014, Collins J found that the refusal to grant exceptional funding in all six cases had been unlawful, having regard to the risk of a breach of their human rights.
Under the new rules for legal aid which came into force in April 2013, all immigration matters were deemed out of scope of publicly funded legal aid. An exception was made for certain cases, including victims of trafficking. However this was only after the victim had been referred to the authorities and the UKBA had accepted that this person was likely to be a victim of trafficking.
Because we believe that legal advice about their immigration status, and about the implications of making themselves known to the authorities, is essential prior to the referral process, ATLEU applied for exceptional funding for a number of such clients, and was refused. In September 2013, we decided to issue judicial review proceedings in a challenge to such refusals, in a test case. We were eventually successful in obtaining legal aid to fund such a challenge, without which it would not have been possible, since the client was destitute.
The case was joined to five others in a variety of immigration matters. In our trafficking case, Collins J quashed the decision of the Legal Aid Agency to refuse exceptional funding to our client and ordered the Legal Aid Agency to reconsider funding in the light of his guidance. He held that a victim of trafficking may require exceptional funding to be provided where there is a risk of a breach of Article 8, prior to a reasonable grounds decision being made under the national referral mechanism.
Without proper legal advice (he said) a victim of trafficking, who is likely to be highly vulnerable and afraid of the consequences of making themselves known to the authorities, such as detention and removal, may never come forward or consent to being referred as a victim of trafficking.
Collins J however rejected arguments that such a right was conferred by Article 4 of the European Convention of Human Rights (which forbids slavery) or Article 12 of the EU Trafficking Directive, which grants certain rights to legal advicefor victims of trafficking. These arguments will be pursue in the course of the appeal.
Collins J granted the Legal Aid Agency permission to appeal in all but one of the cases; so this is not the end of the story. We believe that our case may well be referred to the Court of Justice of the European Union in Luxembourg, in order to obtain the advice of that Court on the scope of Article 12 of the EU Trafficking Directive.