The Lawful Residence Test: Update

Where are we with the enactment of the Lawful Residence Test? 

The government proposed in September 2013 to introduce an amendment to LASPO (which regulates the provision of free legal aid) making legal aid subject to an additional test of one year's lawful residence in the UK.

That would mean that anyone with uncertain or no immigration status within the previous year, or anyone not living here in the last 12 months, would be ineligible for legal aid on that basis alone.

Clearly this proposal would have enormous consequences for access to justice for victims of human trafficking, the vast majority of whom would not be able to pass this test, for reasons explained below. 

The proposal was challenged by the Public Law Project by way of judicial review, before the relevant regulation could be introduced in Parliament. They argued that such a serious restriction on legal aid should be introduced by primary legislation, so that there could be a proper debate and the will of Parliament could be clearly expressed. They also argued that it would discriminatory towards certain vulnerable groups who are protected by law. 

While awaiting the judges' decision on the challenge, the Ministry of Justice introduced the draft Order to Parliament where it was passed by the House of Commons:

Before it could be agreed by the House of Lords (which expressed a concern to discuss it properly, and not let it through on the nod, often the case with secondary legislation such as this) the High Court ruled that it was unlawful, as discriminatory and also beyond the powers of the Ministry of Justice.

This stopped the Lawful Residence Test in its tracks, until the outcome of the Ministry of Justice appeal. On the 25 November, we had the outcome: the Court of Appeal overturned the judgment of the High Court.

The Public Law Project intends to appeal to the Supreme Court, but this will take a long time, and in the meantime we assume that the Ministry of Justice will promptly reintroduce the test. Its only current obstacle is its passage through the House of Lords. 

These are the concerns that the House of Lords has already expressed:

This does give us an opportunity to lobby further, when we know the government's plans. Of course it may be overturned anyway by the Supreme Court, but we cannot afford to await that outcome, if it can be halted, at least temporarily, by the House of Lords. If not, we expect it to be introduced early in 2016. 

What does it mean for victims of human trafficking?
The vast majority of victims of trafficking would not have been able to prove lawful residence in the UK over the previous year before asking for legal assistance, for a variety of reasons: either they will have been brought unlawfully into the country, or their visas will have expired; or if lawfully here, only for six months (in the case of a migrant domestic worker under the new visa) or if their documents are held by their traffickers (as is often the case) they will not be able to prove their lawful residence, on escape. 

The difficulty with proving lawful residence (a highly complex concept) will deter many lawyers from offering legal assistance even to those who qualify, for fear of being refused payment for their work. Some discretion is allowed under the proposed guidance - but bitter experience teaches us that when it comes to interpretation (usually when the work is completed) the Legal Aid Agency will be as rigid as possible. 

The Ministry of Justice introduced a number of exceptions to the test, including for victims of human trafficking. This will of course ameliorate the worst effects, for our clients. But the limitation is that only victims under the definition given in LASPO (the legislation which regulates access to legal aid) will benefit.

S.32 of LASPO (Note 1) allows for immigration advice to be offered to those who have been accepted definitively by the Home Office as a victim of human trafficking, or if accepted provisionally as such, while awaiting that final decision. 

That means firstly that victims are deprived of access to advice prior to their referral for identification by the Home Office, which is when they are most uncertain and vulnerable. That is a gap in the primary legislation (the subject of a separate challenge by ATLEU in LS). 

What happens if the victim, having been referred to the Home Office, receives a negative decision, either at the preliminary or final stage? The residence test compounds the problem already evident in LASPO, by excluding legal aid for a challenge to a negative decision - however flawed.

At present these decisions can be challenged, under a separate provision of LASPO. But the overarching residence test will preclude it. So the victim has no way of challenging a vital and often life-changing decision made by an agency - the Home Office - which is notorious for so often getting it wrong at first instance. 

The Legal Aid Agency would expect lawyers to consider the alternative of running the case on a 'no win no fee' basis, i.e. a conditional fee arrangement whereby the costs of the challenge, if successful, will be paid by the Home Office. That might work in other types of case, but not for complex judicial reviews by a person without means - because the person is subject to the risk of punitive costs, and, in our experience, will be unable to obtain insurance to cover the risk.

This is because these types of cases, besides being legally complex with no guarantee of success, does not involve a claim for damages from which the insurance can be paid. 

We do not know whether there will be similar restrictions on the provision of legal aid for compensation claims. In theory, there is a distinction between immigration and compensation cases (see note 1 below) in that access to legal aid is not dependant on a positive decision on the trafficking claim. In practice however, we expect the current restrictions on legal aid for compensation claims to be exacerbated by the residence test.

The same group of clients who will be prevented from challenging negative decisions on trafficking claims will also be prevented from obtaining advice about accommodation and support after a negative decision. The Salvation Army, which currently provides temporary accommodation to victims under a government contract, is prevented by that contract from continuing support after a negative decision.

There will be no legal aid to advise clients on alternative statutory sources of accommodation, and on challenging any refusal to provide it. This may lead to traumatised and vulnerable clients being rendered homeless and destitute, in breach of their human rights.

We expect similar difficulties with exceptional case funding - the catchall discretionary funding which can be applied for, if the case is out of scope of legal aid and the deprivation would breach the applicant's fundamental human or European Union rights. There has been some increase in flexibility as a result of recent legal challenges; but it remains a totally unsatisfactory substitute for an entitlement to legal aid for victims of trafficking. 

In summary, the Lawful Residence Test compounds the problems caused by the drafting of Schedule 1 S.32(i) of LASPO. The concession to victims of trafficking is rendered ineffectual by imposing the requirement of a positive preliminary or final decision on trafficking  by the Home Office as the gateway to legal aid. Thus the person in need of legal advice is deprived of it at precisely the points at which it is most needed, i.e. before they are referred to the UKBA and after any negative decision.
Victims of trafficking in human beings
32(1)Civil legal services provided to an individual in relation to an application by the individual for leave to enter, or to remain in, the United Kingdom where—
(a) there has been a conclusive determination that the individual is a victim of trafficking in human beings, or
(b) there are reasonable grounds to believe that the individual is such a victim and there has not been a conclusive determination that the individual is not such a victim.
(2 )Civil legal services provided in relation to a claim under employment law arising in connection with the exploitation of an individual who is a victim of trafficking in human beings, but only where—
(a) the services are provided to the individual, or
(b) the individual has died and the services are provided to the individual’s personal representative.
(3) Civil legal services provided in relation to a claim for damages arising in connection with the trafficking or exploitation of an individual who is a victim of trafficking in human beings