The High Court recently gave judgement in Gudanaviciene & Ors v Director of Legal Aid Casework & Anor  EWHC 1840 (Admin).
The judgement is long and detailed, but repays reading in full, and includes a detailed discussion of the scope of s10 LASPO exceptional cases and the extent to which legal aid should be available in cases outside the scope of Schedule 1. It also finds, contrary to what has been said by the MoJ and LAA to date, that refugee family reunion is in fact in scope.
s10 provides that:
“(1) Civil legal services other than services described in Part 1 of Schedule 1 are to be available to an individual under this part if subsection (2) … is satisfied.
(2) This subsection is satisfied where the Director –
(a) has made an exceptional case determination in relation to the individual and the services, and
(b) has determined that the individual qualifies for the services in accordance with this Part,
(and has not withdrawn either determination).
(3) For the purposes of subsection (2), an exceptional case determination is a determination –
(a) that it is necessary to make the services available to the individual under this Part because failure to do so would be a breach of –
(i) the individual’s Convention rights (within the meaning of the Human Rights Act 1998), or
(ii) any rights of the individual to the provision of legal services that are enforceable EU rights, or
(b) that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.”
Collins J concluded that, in respect of the test in 10(3)(a),
Thus if the Director is satisfied that legal aid is in principle needed when its refusal would to a high level of probability result in a breach, s.10(3)(a) is met and means and merits will determine whether legal aid is to be granted and to what extent. It may for example not be necessary to grant legal aid for more than advice, particularly as the obtaining of advice from a competent solicitor may save further cost by persuading the individual that he has no case or enabling him to present his application in a way which enables the decision maker or court to deal with it expeditiously and without the cost incurred in seeing whether a litigant in person does have valid points. (para 44)
He concluded that the test of “certainty” referred to by Coulson J in M v Director of Legal Aid and Casework  EWHC 1354 (Admin) was the wrong approach; what was required was a high level of probability of a breach.
Collins J went on to consider the s10(3)(b) test in the context of Article 8 ECHR immigration cases, which were the cases before the Court. He concluded that the Lord Chancellor’s Guidance on Exceptional Funding (Non-Inquests) was wrong because it set too high a threshold for the grant of funding. It failed to recognise that Article 8 applies in immigration cases, and carries with it procedural requirements that must be followed even if Article 6 is excluded. (para 51)
Collins J left for consideration in other cases whether the exceptional cases regime breached the Equality Act 2010 and whether it erected unacceptable practical obstacles.
Refusal of legal aid was quashed in all 6 cases. In some, Collins J left it to the a Director to re-consider, in others he directed that legal aid should be granted. Most interesting in the wider context was the case of B, considered at paras 98 – 114.
B is an Iranian refugee who was granted asylum in 2013. She then applied for refugee family reunion with her husband and son. Her solicitors applied for legal aid, and in the alternative exceptional funding, to cover advice and assistance with the claim.
The LAA refused legal aid on the basis that it was outside the scope of Schedule 1 LASPO, and refused exceptional funding because it would not be impossible for her to present her claim and her cousin could help her with English.
Collins J decided that refugee family reunion IS within the scope of LASPO, since para 30 of part 1 of Schedule 1 says “rights to enter and remain…arising from the Refugee Convention” are in scope. “A person who is recognised as a refugee has a right conferred by the Immigration Rules for family unity. As a matter of ordinary English, that right arises from the Convention since the Convention enabled that person to achieve the status of refugee.” (para 105). Parliament had not unequivocally decided to remove family reunion from scope, and so it is in. If this survives any appeal, it is highly significant – both in terms of of the numbers of immigration cases now back in scope, but also because of the approach which could be applied to the interpretation of other parts of Schedule 1.
This is an important judgement which will have implications beyond just immigration cases. Pink Tape has a discussion of the judgement and some thoughts on how it can be used in out of scope family cases, and there will be other areas where it may apply. However, it will almost certainly be the subject of an appeal, and it remains to be seen what the Court of Appeal will make of it.
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