The draft residence test regulations have been published – and with them, a policy statement on what allapplicants for civil legal aid (apart from those in exempt categories) will be required to prove from when the test is implemented, in August – links to both also on our Resources page.
Applicants will need to provide evidence of both current lawful residence, and of 12 months continuous residence. Those claiming to be in an exempt category will need to provide evidence of that. There will be limited exceptions where it is impracticable to do so, which seem to be along similar lines to the current ones for evidence of means. Otherwise, proof will be required in all cases.
Evidence of right to lawful residence – passport or ID card showing that the applicant is a national of the UK, EEA or Switzerland; residence permit for one of those countries; birth or adoption certificate from the UK, Ireland, Channel Islands or Isle of Man; certificate of naturalisation as a British citizen; immigration status document or leave to remain letter
Evidence of current residence includes – bank statement; council tax bill; utility bill; benefits letter; health care record; letter from prison confirming current detention; school attendance record; tenancy agreement; mortgage statement; letter from social housing provider; court summons / order / warrant; letter from care home
Evidence of continuous residence – 12 months bank statements; 12 months DWP statements; 12 months rent or mortgage statements or letter from landlord; letter from prison confirming 12 months detention; letter confirming 12 months attendance at school; 12 months wage slips; tax return; arrival and departure travel documents; letter from training provider
Evidence of exemption – asylum registration card; military ID card; marriage / birth / etc certificate showing relationship to member of forces; birth or adoption certificate if under 1 year old
There will be amendments to the Procedure regs in due course with full details, alongside further guidance – this statement just gives an overview of what is intended.
All applicants for civil legal aid, apart from exempt persons or cases to which the test does not apply, will need to provide this evidence. Practitioners who struggle now to obtain evidence of means will know h0w much harder it is likely to be to get 12 months bank statements than 3 – and that before a passport or birth certificate is added. Practitioners working with victims of domestic violence will know how few clients return when sent away to get the prescribed evidence, and how long it takes. If experience of domestic violence cases is any guide, obtaining it will be unpaid work – and will be a very effective restriction on access to justice even in the case of those who pass the test.
The Public Law Project JR of the test is ongoing; we understand judgement is expected relatively soon.