Exceptional legal aid funding should not be limited to extreme cases – Court of Appeal
17 December 2014
R (on the application of) Gudanaviciene and others v The Director of Legal Aid Casework and others  EWCA Civ 1622 – read judgment
The Court of Appeal has ruled that the Lord Chancellor’s Guidance on exceptional funding in civil legal aid is incompatible with the right of access to justice under Article 6 of the ECHR and Article 47 of the Charter of Fundamental Rights of the European Union. The Court has further decided that this Guidance was not compatible with Article 8 of the ECHR in immigration cases; in other words, that legal aid should not be refused when applicants for entry to the UK seek to argue that refusal of entry would interfere with their right to respect for private and family life.
This was an appeal against a ruling by Collins J in the court below that the appellant Director’s refusal to grant the respondents exceptional case funding under Section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 in their immigration cases was unlawful.
The Lord Chancellor’s exceptional funding guidance provided that civil legal aid under Section 10 should be granted in very limited circumstances. The Guidance says that
the overarching question to consider is whether 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.
The judgment presents something of a maze to the reader because it brings five cases under one umbrella – there being no appeal against Collins J’s order on the sixth (IS). The Court of Appeal had to decide, in relation to each case, what was the correct interpretation of Section 10 of LASPO; whether the Guidance was compatible with the provisions relating to access to justice under the Human Rights Convention and the EU Charter, and whether the Guidance was compatible with Article 8 of the Convention in immigration cases. On the last point, the respondents contended that there was no Strasbourg authority which has decided that Article 8 alone required the provision of civil legal aid in an immigration case. There was, they submitted, a good reason for this.
The decision of the Grand Chamber of the ECtHR in Maaouia v France (2001) 33 EHRR 42 makes it clear that decisions relating to the entry, stay and deportation of immigrants do not involve the determination of civil rights. They are, therefore, outside the scope of article 6(1) of the Convention. This is so notwithstanding that the decisions in question may “incidentally ha[ve] major repercussions on the applicant’s private and family life or on his prospects of employment” (para 38).
The Court did not agree with this approach. The fact that immigration decisions did not involve the determination of civil rights did indeed mean that Article 6(1) could not be invoked in relation to such decisions. But it did not follow that the procedural obligations of Article 8 do not apply to immigration decisions.
Article 8 is frequently engaged in immigration decisions. The procedural protections inherent in article 8 are necessary in order to ensure that article 8 rights are practical and effective. 
As we will see, some individual appeals by the authorities were allowed, and some dismissed.
Reasoning behind the Court’s decision
In the Court’s view, there was nothing in the language of section 10(3) to suggest that exceptional case determinations will only rarely be made. The provision did not in other words impose a condition that an exceptional determination should only be made where it could definitely be said that refusal would be a breach, which is what the guidance said. The question whether a refusal of legal aid would be a breach of an individual’s Convention rights or enforceable EU rights must be answered by applying the approach to be derived from the ECtHR and the CJEU case-law respectively. Therefore, when the Director concluded that a denial of exceptional funding would breach Convention or EU rights, he should make an exceptional funding determination:
The concept of real risk has no part to play in the question whether the denial of legal aid would amount to a breach of an individual’s procedural rights under the Convention or under article 47 of the Charter.
Although the Guidance correctly identified many of the particular factors that should be taken into account in deciding whether to make an exceptional case determination, their effect was substantially neutralised by the “strong steer” highlighted by the court, which sent a clear signal to the caseworkers and the Director that the refusal of legal aid would amount to a breach of article 6(1) only in rare and extreme cases.
In our judgment, there are no statements in the case-law which support this signal.
In giving a clear signal that refusal of legal aid would only breach Article 6 in “rare and extreme cases”, the Guidance misstated the effect of Strasbourg case law. As was established in Airey v Ireland, the Convention guaranteed effective, not theoretical rights; the question was whether the applicant’s appearance before the tribunal in question without a lawyer was effective; it was relevant whether the proceedings taken as a whole were fair, and appeared to be fair; and equality of arms had to be guaranteed. None of the cases following Airey (Munro v UK (1984), Stewart-Brady v UK ; Steel v United Kingdom; McVicar v United Kingdom, and P v United Kingdom  established that legal services were required only in extreme cases.
As for Article 8, the established case law shows that Article 8’s procedural obligations do apply to immigration decisions. The procedural protections were necessary to ensure that the right to respect for home and family life were practical and effective. Whether legal aid was required depended on the facts of each case, including the importance and complexity of the issues and the individual’s ability to represent himself without assistance. The supply of assistance in immigration proceedings was restricted, individuals could well have language difficulties, and the law was complex. The Guidance provided, incorrectly, that legal aid was not available in any immigration case, regardless of the circumstances.
The individual cases
The extent of the Article 8 protection depended on the facts of each individual case.
The first respondent was appealing against deportation after a criminal conviction for assault against her violent partner. A Lithuanian citizen, she had a very poor command of English and would be unable to approach her appeal objectively. Without legal advice, she would not begin to know how to prepare her appeal.
But the second of the respondents, Nigerian citizen LS, claimed to be a trafficking victim. Directive 2011/36 art.12(2) did not confer an entitlement to legal aid in the process of identifying people as trafficking victims. Further, although the Director’s decision to refuse legal aid was flawed by its reliance on the Guidance, his conclusion that there would be no breach of Convention rights was correct in the circumstances. Relief should have been refused as a matter of discretion. It was further argued on LS’s behalf that, if a right to legal aid at the referral stage was not conferred directly by article 12(2) of the Trafficking Directive, the right may arise under article 47(3) of the Charter and Article 41 of the Charter. According to the Master of the Rolls, the argument took LS nowhere.
The provisions of the Charter in question cannot give rise to some form of implied right under the Directive. If article 47(3) is considered as an independent source of rights, it is difficult to see how LS, as a Nigerian national who came to the UK from Nigeria, could rely on it.
Now to case 3. Mr Reis, a Portuguese national, entered this country in 1998 at the age of 12. Since about 2002 he has committed a considerable number of criminal offences which had increased in seriousness. His deportation appeal was not straightforward, since an EU citizen is entitled to the enhanced protection afforded to EU citizens who have resided in the UK for a continuous period of ten years. This constituted a “particularly complex legal issue”, meaning he was unable to effectively represent himself. The refusal of legal aid was based on an application of the Guidance which set too high a threshold. Collins J below quashed the refusal and directed that legal aid be granted for the hearing before the First Tier Tribunal. The Court of Appeal upheld his judgment.
Case 4 concerns B, an Iranian national who arrived in the UK in March 2013. She claimed asylum fearing persecution for her political activities on behalf of Kurds. She was granted refugee status and given five years leave to remain. This case turned on whether her son and husband should have been given legal aid to apply for family reunion. Family reunion was not a right arising from the Refugee Convention and was accordingly not in scope for legal aid. However, the legal provisions governing family reunion and the procedure for making entry clearance applications are a complex and time-consuming process involving multipart evidential preparation without which family reunion applicants can be readily refused. The respondent would therefore not have been unable to have any effective involvement in the decision-making process without assistance. The Director ought therefore to have concluded that failure to provide legal aid would amount to a breach of her Convention rights.
The point of law relied on by the fifth respondent (Ms Edgehill, a Jamaican national applying for leave to remain in the UK) had been raised by another party who was legally represented. While separate legal representation would have been desirable, failure to provide legal aid did not breach Article 8.
A parting shot
The Master of the Rolls ended his judgment by noting that an important strand of the authorities’ submissions was that, to some extent at least, courts (and in particular specialist tribunals) are able to adopt an inquisitorial approach and in that way ensure that litigants in person enjoy effective access to justice.
We accept that this will be possible in many cases. But these appeals show that there are cases where this is not possible. We would point out that, in some circumstances, legal advice to the litigant in person may be more important than legal representation at the hearing for ensuring effective access to justice. We suggest that consideration be given to whether, in an appropriate case, ECF [Exceptional Case Funding] be provided for early legal advice even where it is not considered to be necessary for representation at the hearing. 
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