(1) Teresa Gudanaviciene and Others v Director of Legal Aid Casework (1st Defendant) The Lord Chancellor (2nd Defendant)

Hearing dates: 13 – 16 May 2014

These six claims have been heard together pursuant to an order of Turner J made on 30 January 2014. Each challenges the refusal of the Director of Legal Aid Casework (whom I will refer to as the Director) to grant legal aid to the claimants. They raise common issues concerning the availability of legal aid in immigration cases under Section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ( LASPO). A number of discrete issues have been identified. Some are common to a number of the claims and some depend on the circumstances of one or two of the claims but all will arise in many applications for legal aid by or on behalf of immigrants who wish to obtain a particular decision usually from the Home Office or an entry clearance officer or are pursuing an appeal against an adverse decision or are responding to an appeal against a favourable decision. The claimants contend that the policy adopted by the Director which applies guidance issued by the Lord Chancellor is wrong in law in being too restrictive. Further, each claimant asserts that in his or her case having regard to the circumstances the refusal to grant legal aid was wrong.

Permission had been granted in one of the claims. The others were to be treated as 'rolled up hearings'. I granted permission in those claims which needed it subject to an undertaking to pay the necessary court fee. This judgment deals with each claim on its merits.

Part 1 of LASPO deals with legal aid. Its effect has been to limit the circumstances in which civil legal aid can be granted. Section 9 of LASPO provides:-

"(1) Civil legal services are to be available to an individual under this Part of –

(a) they are civil legal services described in Part 1 of Schedule 1 and

(b) the Director has determined that the individual qualifies for the services in accordance with this Part (and has not withdrawn the determination."

S.9(2) enables the Lord Chancellor to add, vary or omit services in Schedule 1. The need for an individual to qualify is directed largely at merits and means and is dealt with in Section 11 of LASPO. I am not concerned with means in these cases and only with merits insofar as I can properly reach a conclusion on the facts of a particular claim that to refuse legal aid on merits grounds would be perverse.

Section 10 of LASPO is central to these cases. It is headed "Exceptional cases" and so far as material provides:-

"(1) Civil legal services other than services described in Part 1 of Schedule 1 are to be available to an individual under this part if subsection (2) … is satisfied.

(2) This subsection is satisfied where the Director –

(a) has made an exceptional case determination in relation to the individual and the services, and

(b) has determined that the individual qualifies for the services in accordance with this Part,

(and has not withdrawn either determination).

(3) For the purposes of subsection (2), an exceptional case determination is a determination –

(a) that it is necessary to make the services available to the individual under this Part because failure to do so would be a breach of –

(i) the individual's Convention rights (within the meaning of the Human Rights Act 1998), or

(ii) any rights of the individual to the provision of legal services that are enforceable EU rights, or

(b) that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach."

Section 11 confers upon the Lord Chancellor the duty to set the criteria which the Director must apply in Regulations. The material factors that must be reflected in the criteria are set out in s.11(3). They include a cost benefit assessment, the availability of resources, the appropriateness of applying those resources having regard to present and future demands, the importance for the individual and the nature and seriousness of the matters for which he requests the services, the individual's prospects of success if the services relate to a dispute, the individual's conduct and the public interest. S.11(5) provides:-

"The criteria must reflect the principle that in many disputes, mediation and other forms of dispute resolution are more appropriate than legal proceedings."

The availability of civil legal services for immigration is dealt with in Paragraphs 28 to 32 of Schedule 1 to LASPO. Paragraphs 28 and 29 cover victims of domestic violence. Paragraph 30 is the most material being concerned with rights to enter and remain. Sub-paragraph (1) permits a grant in relation to:-

"Civil legal services provided in relation to rights to enter, and to remain in, the United Kingdom arising from –

(a) The Refugee Convention;

(b) Article 2 or 3 of the Human Rights Convention;

(c) The Temporary Protection Directive;

(d) The Qualification Directive."

Apart from the general exclusions specified in Parts 2 and 3 of Schedule 1 (to which it is not necessary to refer), there is a specific exclusion of services for an attendance at an interview conducted on behalf of the Secretary of State with a view to reaching a decision on a claim in respect of the rights set out in sub-paragraph (1) unless regulations provide otherwise.

The Refugee and Human Rights Conventions need no explanation. The Qualification Directive is Council Directive 2004/83/EC, which has been given effect by the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (SI 2006/2525). The Temporary Protection Directive refers to Council Directive 2001/55/EC which deals with minimum standards for temporary protection if there is a mass influx of displaced persons.

Section 1 of LASPO requires the Lord Chancellor to secure that legal aid is made available in accordance with Part 1 of the Act. It enables him to do 'anything which is calculated to facilitate, or is incidental or conducive to, the carrying out of the Lord Chancellor's functions under this Part' (s.1(4)). Section 4 of LASPO requires the Lord Chancellor to designate a civil servant as Director and provide for his assistance. Section 4(2) obliges the Director to:-

" (a) comply with directions given by the Lord Chancellor about the carrying out of the Director's functions under this Part, and

(b) have regard to guidance given by the Lord Chancellor about the carrying out of those functions."

The Lord Chancellor has issued guidance in accordance with s.4 of LASPO. It makes clear, as is obviously appropriate, that applications must be considered on a case by case basis. However, the guidance lays down some principles which the Director is to apply and some of those are said by the claimants to be unlawful. Paragraph 6 notes that s10(3)(b) does not provide a general power to fund cases which fall outside the scope of legal aid. It is, it is said, "to be used for rare cases" where the risk of the breach of material rights 'is such that it is appropriate to fund'. Paragraph 7 states:-

"7. The purpose of section 10(3) of the Act is to enable compliance with ECHR and EU law obligations in the context of a civil legal aid scheme that has refocused limited resources on the highest priority cases. Caseworkers should approach section 10(3)(b) with this firmly in mind. It would not therefore be appropriate to fund simply because a risk (however small) exists of a breach of the relevant rights. Rather, section 10(3)(b) should be used in those rare cases where it cannot be said with certainty whether the failure to fund would amount to a breach of the rights set out at section 10(3)(a) but the risk of breach is so substantial that it is nevertheless appropriate to fund in all the circumstances of the case. This may be so, for example, where the case law is uncertain (owing, for example, to conflicting judgments)."

This, it is submitted by the claimants, is too restrictive. It applies an approach to s.10(3) which is not expressly provided for by LASPO. No doubt Parliament intended to limit legal aid in immigration cases only to those where there was at least a risk (the context of which is to be determined in these claims) of a breach of material rights, but that limitation should not go beyond what the law as explained in decisions of the ECtHR, the CJEU and domestic cases provides. In particular, it is submitted that the reference to certainty is not appropriate since the...