Earlier this month in a written statement the Justice Minister Lucy Frazer announced the government’s intention of reinstating non-asylum immigration legal aid for unaccompanied children.
Doing so would require a statutory instrument amending Schedule 1 of LASPO, which can’t be done during the summer recess.
So the MoJ has now issued guidance that, pending amendment of LASPO, exceptional funding should generally be granted in these cases.
The written statement says:
I wish to inform the House that I have decided to lay an amendment to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 to bring immigration matters for unaccompanied and separated children into scope of legal aid.
Under current legislation, legal aid is available in all asylum cases – for all age groups – and immigration cases where someone is challenging a detention decision. Legal aid for other immigration matters is available via the Exceptional Case Funding (ECF) scheme, which is intended to ensure legal aid is accessible in all cases where there is a risk of breach of human rights.
Following a judicial review brought by the Children’s Society, we have examined both the evidence presented as part of the case and our data on applications for funding. Based on the distinct nature of the cohort in question, and of our data regarding them, I have decided to bring these cases into the scope of legal aid to ensure access to justice.
The new guidance says
In the interim period before the amendment is made, those representing unaccompanied and separated children should apply for legal aid via the exceptional funding scheme.
In order to provide clarity to legal aid practitioners and caseworkers, the following is to be considered guidance under section 4 of LASPO:
- Caseworkers ought to operate on the basis that there is a strong presumption that under Article 8 of the European Convention on Human Rights unaccompanied or separated children (children under the age of 18 who have been separated from both parents) require legal aid in relation to non-asylum immigration matters
- In light of this presumption, applications by or on behalf of unaccompanied and separated children in relation to non-asylum immigration matters need not be supported by detailed evidence in relation to issues relating to vulnerability and ability to participate in proceedings without legal aid (as this will be presumed).
This is welcome guidance which should ensure that applications are now very likely to be granted pending the full restoration of these cases to scope. Our congratulations to the Children’s Society and Islington Law Centre for bringing the judicial review which led to this rare reversal of a LASPO scope cut.