Legal Aid Update: court says legal aid can be provided for some family reunion and some Article 8 (family and private life) cases

A case concerning legal aid exceptional case funding, Gudanaviciene & Ors v Director of Legal Aid Casework & Anor [2014] EWHC 1840, has been announced.

There were six claims heard together, each challenging the refusal of the Director of Legal Aid Casework (the Director) to grant legal aid in this cases. The cases raised the common issue concerning the availability of legal aid in immigration cases under Section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). Section 10 concerns the process of applying for legal aid for cases which are not already covered under LASPO on an exceptional basis. The test for that application is whether by withholding legal aid the person’s claim will be practically impossible or lead to an obvious unfairness in the proceedings. The six claims say that this test is too high.

The court said that there needed to be a high level of probability that a person’s Convention rights or EU law rights would be breached if legal aid is refused, and not a complete certainty. There must also be a substantial or significant risk, and not a remote or fanciful one, that a there will be a breach of procedural requirements because of an inability for the individual to have an effective or fair opportunity to establish the claim.

The court concluded that there may be Article 8 (family and private life) cases where a failure to grant legal aid may breach the minimum procedural standards of fairness and not his basis the decision to refusal legal aid in two fighting deportation was flawed and legal aid should be granted.

The court concluded that there was no requirement to provide legal aid for a person claiming to be a victim of trafficking prior to a referral being made into the National referral Mechanism. The court did say it would be unlawful to seek to remove the relevant person while their status is under consideration by the NRM and other than in very exceptional circumstances it would be wrong to detain the person. The court did ask the Legal Aid Agency to reconsider the refusal of legal aid based on vulnerability and that legal aid was necessary to ensure the overall rights of the person.

The Administrative Court concluded that Refugee Family Reunion applications are, as a matter of statutory interpretation, covered under legal aid and therefore have not been excluded. There were exceptions. The court said that that some applications may be straightforward and some refugees will be competent to deal with the necessary paperwork, in which case legal aid would not be available for them.

This means that legal aid firms could grant funding for family reunion application made under the Immigration Rules. However, the Court of Appeal may overturn the judgement at which point the Legal Aid Agency may refuse to pay the legal aid fees and may seek to recoup money paid up to the Court of Appeal decision.

The Legal Aid Agency are said to be considering how to proceed with funding in the interim.

Legal Aid, Sentencing and Punishment of Offenders Bill: Update

The Bill continues its passage through the House of Lords with the Third Reading scheduled for 27 March 2012. Following this reading the Bill will be discussed between the House of Commons and the House of Lords during which both Houses will try to settle some of the disputes.

Focusing on immigration legal aid, the amendments so far include:

to make a provision for legal aid for victims of trafficking for immigration and damages / compensation against traffickers;
to include power for the Government to bring back, or add new, areas of legal aid scope back into the bill;
to provide legal aid for exceptional cases where it is necessary to prevent specific injustice;
to retain legal aid for child / vulnerable young people in proceedings including immigration;
to retain legal aid for applications based on Article 2 of the ECHR;

The timetable for settling disputes will be mid-April. After which the Government will ignore everything that the House of Lords tabled and go approve the Bill without any amendments.

More when we have it!

Justice Hale on the Legal Aid Cuts

Brenda Hale, Justice of the Supreme Court of the UK, gave a opening speech at the Law Centres Federation Annual Conference 2011 which she used as platform to advise against the upcoming legal aid cuts.

She explained that the adversarial legal system that we have relies on the parties to the proceedings to present and prepare their own case. She highlighted the constitutional principle of access to justice and that legal aid is service which the state owes to its citizens as a matter of principle.

There was also the false economy argument, in that by continuing to provide legal aid allows a little advice to solve an individual’s problem(s) at the earliest opportunity without the need for court intervention. A few letters and a bit of advice can also save the government potentially more money than they are trying to save with the legal aid cuts as it avoids further issues developing. For example, a person with employment issues, if left unresolved, would then have housing and debt issues. By solving the employment issues it prevents those secondary issues developing.

The government accepts that the cuts will have a disproportionate impact upon women, ethnic minorities and people with disabilities - therefore they accept that it will hit the poorest and most vulnerable in society.

This is just a brief summary of Justice Hale’s speech. As I have no why given her speech the justice it deserves click here to read it in full.

Legal Aid, Sentencing and Punishment of Offenders Bill

The Legal Aid Bill aims to cut funding to legal aid and for some areas, such as immigration cases, remove funding for them completely. The Bill went through the Public Bill Committee on 06 September 2011.

There was no discussions relating to the removal of funding for immigration cases, and it appears that many want to avoid the word 'immigration' completely. That said, there was acceptance that there may be 'advice deserts' where some areas will have no to specialist lawyers. The closure of the RMJ and the IAS were highlighted as examples of that.

The Minister pointed out that immigration tribunals 'are designed to be user-friendly and interpreters are provided free of charge' as a way of countering the restriction to legal aid in such cases. He went on to make a point that legal aid will be retained for 'domestic violence immigration cases, cases before the Special Immigration Appeals Commission and immigration detention cases, including advocacy before the tribunal.'

The full debate and written submissions from concerned organisations, individuals and companies can be found here.

Also, if you're interested how a bill for a new law, or a proposal to change an existing law, is presented for debate click here.

Snippets of the Lords Depate on Legal Aid

The House of Lords had a debate (19.05.11) on the Government's plan to cut the legal aid budget by £350 million, thereby depriving hundreds of thousands from legal representation.

Lord Beecham began the debate by saying, 'The legal aid system was one of the great pillars of the post war welfare state.' He called the cuts 'draconian' and the Government's suggestion that mediation and voluntary organisations would fill the gap was wrong.

He went on to comment that the £1.2 billion budget has been frozen since 2003/4, despite a significant increase in the number of people helped. The taxpayer is getting a lot more for a lot less, but you can only squeeze so far.

Lord Thomas of Gresford pointed out that...

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Defending Legal Aid

The Law Society has published its views on the Government's proposals to cut legal aid. The proposals explain how access to justice can be safeguarded whilst still making financial savings. At the same time they have established a Sound Off for Justice campaign. The campaign aims to Read More...

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Is Legal Aid under threat?

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Legal Aid and the election

The economy is at the forefront of the upcoming election. All the political parties are caught in a budgeting trap of preserving some services... Read More...