Category Archives: Immigration

A turbulent August

The summer is usually a quiet time; not so this year. There has been much going on, both in civil and crime, so here is a round up of recent events.

Two more JR losses

The MoJ and LAA have lost two more judicial reviews, both lost because of deficiencies in policy making and in the fairness of the LAA’s approach – making three in recent months (following the housing court tender) where the High Court has been seriously critical of MoJ / LAA failings.

In The Law Society, R (On the Application Of) v The Lord Chancellor [2018] EWHC 2094 (Admin)Leggatt LJ and Carr J quashed the recent changes to LGFS. Although critical of the Law Society’s conduct of the litigation, their strongest words were saved for the conduct of the MoJ consultation, which was found to be not open and transparent, in particular because the underlying analysis was not only withheld but concealed. The analysis itself was statistically flawed and could not be relied on. And, in respect of the Lord Chancellor’s argument that these failings did not prejudice the fairness of the consultation, the court said that “It is difficult to express in language of appropriate moderation why we consider these arguments without merit”.

Ames, R (On the Application Of) v The Lord Chancellor [2018] EWHC 2250 (Admin) is a case about the quantum of counsels’ fees in a criminal VHCC. As part of the negotiations, the LAA relied on figures produced by its internal “calculator”, but refused to disclose the calculator or any other policy or guidance it used for setting the amounts of reasonable work and the fees payable. The court pointed out that for all other fee schemes, the rates of pay and the basis of calculating fees were published in regulations. It found that the failure to disclose it was irrational and in breach of a duty of transparency and clarity to those whose fees were to be determined by it, a failing compounded by a further failure to engage with the arguments counsel seeking payment made, and mistakes in the LAA’s own calculations. The court directed the calculator and associated guidance to be disclosed.

New civil contracts start 1 September – or do they?

Organisations awarded civil contracts from 1 September 2018 were, in many cases, left in considerable doubt about whether they’d be able to continue as the LAA failed to upload contracts for signature for some successful bidders. Unless the contract has been uploaded by the LAA, and then accepted and executed, you do not have a valid 2018 contract and will not be paid for work done from 1 September 2018 (except under the remainder work provisions of the old contract).

There was no public announcement of what organisations in this position should do in the run up to the start date. LAPG was in constant contact with the LAA and kept its members up to date as best as it could (any legal aid lawyers not members of LAPG really should be). But it was not until late on Friday evening, just before the midnight end of the old contract, that the LAA announced that it was creating a special seven day emergency contract. It has issued further guidance on Monday – if your organisation is affected, make sure you check Bravo regularly and have uploaded everything the LAA has asked for. The LAA has said that organisations operating under the emergency contract will not be able to apply for certificates through CCMS, so you should either wait until your full contract is confirmed, or – if the work is urgent – call the LAA on 0300 200 2020.

New civil guidance

The LAA has begun the process of updating its guidance to take account of the 2018 contract – so far the costs assessment guidance and the escape cases handbook have been updated.

AGFS consultation

As part of its deal with Bar that led to the calling off of action earlier this year, the MoJ promised to re-work the AGFS scheme and invest a further £15million into it. The MoJ opened a consultation into the detail of how this would be done – it closes on 28 September.

The new LAG Legal Aid Handbook 2018/19 is out now – featuring full coverage of the civil and criminal schemes, fully revised and updated and including the 2018 civil contract. This edition includes brand new chapters on CCMS and community care, specialist chapters on housing, family, mental health, immigration and crime work, and greatly expanded coverage of civil costs. Written by a team of legal aid experts and edited by Vicky Ling, Simon Pugh and Sue James, it’s the one book no legal aid lawyer can afford to be without. Order your copy here now.

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Filed under Actions Against the Police, Civil, Community Care, Crime, Family, Handbook, Housing, Immigration, LASPO, Mental Health, Policy, Public Law, Social welfare

Immigration legal aid reinstated for non-asylum child cases

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.

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Filed under Civil, Immigration, LASPO, Policy

New LAG Legal Aid Handbook

We’re delighted that the new Handbook, 2018-19 edition, will be published at the end of this month.The new edition is fully revised and updated and packed full of useful advice, hints and tips and guidance. It’s the only fully comprehensive guide to the whole legal aid scheme, described by some readers as the ‘bible on legal aid’.

This edition welcomes a new general editor joining Vicky and Simon, Sue James. Sue needs no introduction to legal aid lawyers as a leading housing lawyer and the recipient of a LALY lifetime achievement award.

Anthony Edwards returns to edit the crime sections, and his vast experience and knowledge makes that section indispensable for criminal lawyers.

Returning contributors Steve Hynes and Richard Charlton have updated their chapters on policy and mental health. For this edition we have brand new content of interest to all civil legal aid lawyers from a range of expert practitioners:

  • Leading costs lawyer and chair of the ACL legal aid group Paul Seddon has revised and greatly extended the civil costs chapter
  • Simpson Millar solicitor and LALY nominee Silvia Nicolaou Garcia has contributed a brand new chapter on community care
  • Consultant and IT expert Jane Pritchard has written a detailed guide to using CCMS

Bigger and better than ever and fully up to date including the 2018 contracts, the Handbook is the one book no legal aid lawyer can afford to be without. Pre-order your copy now from the LAG Bookshop

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Filed under Actions Against the Police, Civil, Clinical Negligence, Community Care, Costs, Crime, Family, Handbook, Housing, Immigration, LASPO, Mental Health, Policy, Public Law, Social welfare

LAA amends contracts for GDPR

The LAA has amended all current contracts in order to meet the requirements imposed by the General Data Protection Regulation (Regulation (EU) 2016/679) and the Law Enforcement Directive (Directive (EU) 2016/680), being implemented under Part 3 of the Data Protection bill. Amendments regarding the GDPR apply from 25 May 2018. Amendments relating to the Directive apply from 6 May 2018.

There are some detailed obligations. The LAA require you to notify them within 5 business days if you receive the following in relation to LAA or shared data:

  • A data subject request
  • A request to rectify, block or erase personal data
  • A complaint or other communication about your (or the LAA’s) handling of data
  • A communication from the Information Commissioner

You must also indemnify the LAA if it is fined because you fail to comply with the legislation.

You can find more information here.

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Filed under Actions Against the Police, Advocacy, Civil, Clinical Negligence, Community Care, Crime, Family, Housing, Immigration, Mental Health, Public Law, Social welfare

New Civil Keycard Issued Today

This afternoon the LAA issued a new civil keycard, keycard 54, containing revised eligibility limits. The main change appears to be a small reduction in dependant’s allowances.

It is unfortunate that the keycard was not issued until the afternoon of the day it came into force. You may wish to check any grants, particularly of Legal Help and CLR, made today to confirm the client is eligible.

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Filed under Civil, Clinical Negligence, Community Care, Family, Housing, Immigration, Mental Health, Public Law, Social welfare

2018 Civil Contracts Update

Just before Easter, the LAA released some more information about the 2018 civil tender process.

The failed discrimination tender will be re-run, though in the education category existing providers have agreed to continue, so no re-tender will be necessary.

In housing the LAA has failed to secure court duty provision in Cornwall. In 39 procurement areas, no or only one compliant bid for face to face contracts was received, so the LAA will be re-tendering in late April 2018. These areas include the whole of the South West of England beyond Bristol and Somerset, much of northern England outside the major urban areas and parts of the Midlands. Meanwhile, the Law Centres Network has been given permission to judicially review the court duty tender process as a whole, with a hearing listed for next month.

In family, there were 7 areas with no or one bidder, and 6 in immigration.

The full list of areas that will be re-tendered can be found in Annex A of the LAA’s update, here.

This level of procurement failure is unprecedented in legal aid. The initial tender exercise failed to find any successful bidders in two whole areas of law – education and discrimination – and leaves many areas of the country without meaningful access to legal aid in other areas. It is a further development of a process of market failure which has been underway for a long time, accelerated by LASPO, where in many places it is no longer viable to continue legal aid work. It is difficult to see how a repeated tender exercise – based on the same scope restrictions, payment rates, and contract terms – will yield a significantly different outcome. Last week Community Law Partnership, a top firm of housing lawyers in Birmingham, tweeted a typical case of a family turned away from housing assistance and only housed after a threat of judicial review. The entire thread sums up the value of the work they and others like them do – and ended with a reminder of why there are ever fewer who can.

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Civil and Family contract extensions acceptance deadline

The LAA has sent emails to holders of civil, family and mediation contract holders to inform them about contract extensions to 31 August 2018.

Holders of 2010 contracts (Mediation) and 2013 contracts (Family, Immigration/Asylum, Housing/Debt) need to send back an acceptance form. The letters attached to emails give a deadline of 5 December 2017, the website says 6 December 2017.

Holders of Housing Possession Court Duty Scheme contracts will receive an extension offer in due course.

Holders of welfare benefits, mental health, and community care contracts will have their contracts extended automatically.

Holders of AAP etc., clinical negligence and public law contracts will have their contracts terminated earlier than originally envisaged, so that they will also end on 31 August 2018.

If you haven’t received an email, you should contact the LAA’s central commissioning team: civil.contracts@legalaid.gsi.gov.uk

More information can be found here.

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