Court of appeal rules against Lord Chancellor on exceptional case funding

Gudanaviciene, IS (by his litigation friend, the Official Solicitor), Reis, B, Edgehill, LS (Claimants/Respondents); The British Red Cross Society (Intervener) – v- The Director of Legal Aid Casework and the Lord Chancellor (Appellants)  | 16.12.14

Judgment can be found here.
Catherine Meredith (for LS) worked with Clara Connolly at the Anti Trafficking Labour and Exploitation Unit (ATLEU);  Paul Bowen QC represented LS.
This was a test challenge in six immigration cases which had been joined together as they raised common issues about exceptional case funding (ECF) under s.10 Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). Mr Justice Collins in Gudanaviciene & Ors v Director of the Legal Aid Casework and the Lord Chancellor quashed the decisions of the Director in each of the cases on the basis that the refusal to grant ECF would be a breach of ECHR or EU rights; and found significant parts of the Lord Chancellor’s Guidance (‘the Guidance’) was unlawful.
The Court of Appeal significantly upheld that judgment.
The ruling of the Court of Appeal on the approach to exceptional case funding in immigration cases:

  • The determination of ECF does not involve an exceptionality test and is to be assessed by reference to the requirements of the Convention and the Charter. Legal aid would have to be granted if the Director concluded there would be a breach, or if not, if it was appropriate to grant legal aid having regard to any risk of a breach
  • The Guidance is incompatible with the requirements of Article 6 ECHR and Article 47 of the Charter because it sent a signal to caseworkers that the refusal of legal aid would breach Art 6 only in rare and extreme cases (§45) and the same applied to Art 47(3) of the Charter (§59). The grant of legal aid will depend on the circumstances of the case (§56)
  • The Guidance is incompatible with Article 8 ECHR in immigration cases – because as Mr Chamberlain for LAA rightly conceded – the procedural protections of Article 8 ECHR apply in immigration cases. In the context of legal aid, the standards are the same as those under Article 6 ECHR (§69-70)
  • The key requirements are effectiveness and fairness (§72).
  • The decision-maker should not apply a “very high threshold” (§76).
  • Deportation cases are of particular concern, not least because of the importance of the interests at stake.

The concession in IS
IS: The LAA conceded the case of IS, a blind Nigerian man who lacked capacity, and had sought ECF for legal advice relating to an application for leave to remain. The Court of Appeal said that it was an “extreme” case (§80).

The Court of Appeal dismissed the LAA’s appeals in Gudanaviciene, B and Reis; and allowed the appeals in LS and Edgehill.

The trafficking case  
LS: there is no enforceable right to legal aid for victims of trafficking in relation to an application for leave to remain and prior to a reasonable grounds decision; i.e. the stage left out by para 32(1) of Part 1 of Schedule 1 to LASPO, either under the Trafficking Directive 2011/36 or by reading the provision with Charter rights, Arts 5(3), 41 and 43 (§108) or the Council of Europe Convention Against Trafficking in Human Beings or Article 4 ECHR. No reference to the CJEU under Art 267 arose (§109). Article 8 did not require a grant of legal aid on the facts of LS’s case as it was not particularly complex.

Implications and next steps
The case has important consequences concerning exceptional case funding as well as the procedural requirements of Article 8 ECHR in immigration cases.  But for victims of trafficking in particular, we are disappointed with the outcome, although the Court did make some concessions, such as: 

  • Article 12 of the EU  Anti Trafficking Directive ‘extends to claims for compensation (and the recital indicates that it also covers claims for compensation against the state) (103). This should mean that legal aid will be provided for compensation claims for victims of trafficking - including against the state.   
  • The Court accepted  that  ‘there is force in the argument that without legal advice some (perhaps many) potential VOTs will keep away from the NRM process when they would otherwise have entered it’ (123,(ii) )

LS have sought permission to appeal to the Supreme Court in April and are awaiting their decision.