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.

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