The UK Court of Appeal has upheld a High Court decision which found that guidance restricting the granting of legal aid in immigration cases was unlawful. The Court of Appeal ruled that guidance issued by the Lord Chancellor in relation to ‘exceptional case funding’ under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) is unlawful and is incompatible with the State’s obligations under international law.
The judgment related to five cases involving immigrants appealing against decisions to refuse them legal aid for deportation proceedings, made by the Director of Legal Aid Casework under LASPO and in light of the guidance. The Ministry of Justice lost in three of these cases and must reassess their eligibility for legal aid. The Court found that the guidance was incompatible with international law, relying on article 6(1) of the European Convention on Human Rights (ECHR) and on article 47 of the EU Charter of Fundamental Rights which guarantee the right to a fair trial.
The Court found that the guidelines were too restrictive. The guidance used very strong language and terminology such as:
“The overarching question to consider iswhether the withholding of legal aid would make the assertion of the claim practically impossible or lead to an obvious unfairness in proceedings. This is a very high threshold” (emphasis added)
The Court found that passages of the guidance document “send a clear signal to the caseworkers and the Director that the refusal of legal aid will amount to a breach of article 6(1) only in rare and extreme cases.” The Court was unanimously of the opinion that “there are no statements in the case-law which support this signal.” The Court held that “the critical question is whether an unrepresented litigant is able to present his case effectively and without obvious unfairness.” The Court did not find the current approach of assessing ‘exceptional case funding’ to be compatible with the right to a fair trial.
The Court also stated that the guidance was incompatible with the article 8 of the ECHR on the right to family life. It was conceded by the Lord Chancellor that the guidance wrongly states that there is nothing in the current case law which legally obliges the UK to provide legal aid in immigration proceedings to comply with article 8 procedural requirements.
The changes to the UK rules governing legal aid have come under sharp criticism for the restrictive effects which it is having on access to legal aid for some of the most vulnerable in society, including victims of domestic abuse and immigrants. From 1 April 2013, the date the scheme was introduced, to 31 December 2013, a total of 1,151 applications for exceptional funding were made to the Legal Aid Agency. Of those, 1,083 were determined, resulting in funding being granted in 35 cases (3% of cases).
Click here to read the full judgment of Gudanaviciene v Director of Legal Aid Casework [2014] EWCA Civ 1622