Elements of the lord chancellor’s guidance for granting legal aid in exceptional circumstances for immigration cases are ‘unlawful’, the High Court ruled today.
Giving judgment in six linked cases - Gudanaviciene & Others v director of legal aid casework and the lord chancellor  EWHC 1840 (Admin) - Mr Justice Collins said the guidance issued by the lord chancellor is in ‘certain respects unlawful’ in that it is ‘too restrictive’ and ‘not in accordance with the law’.
Collins ruled that the guidance misstates the test for the circumstances in which legal aid should be granted: in order to comply with Articles 6 and 47 of the European Convention on Human Rights; the circumstances in which Article 8 requires legal aid to be granted; and the circumstances under Section 10 (3) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 in which legal aid should be made available.
Collins said the guidance ‘sets too high a threshold’ and ‘produces unfairness’ by denying publicly funded legal advice to applicants in ‘exceptional cases’.
He said it was ‘a fundamental principle that anyone in the UK is subject to its laws and is entitled to their protection’.
‘Thus there must be a fair and effective hearing available and the guidance, as the facts of some of the cases I have dealt with show, produce unfairness,’ he said.
Collins quashed all six decisions made by the director of casework at the Legal Aid Agency to refuse legal aid.
He said that in some of the six cases legal aid ought to be granted and in others the decision to refuse legal aid should be reconsidered.
He said it was not necessary to make any formal declaration of relief and said it would be ‘wrong’ to quash the guidance, as it was only part of it that he found to be unlawful.
The cases concern the circumstances in which legal aid should be granted in those cases not normally eligible, but where a refusal to grant public funding would lead to a breach of the claimant’s convention or EU rights.
Two of the claimants, Teresa Gudanaviciene and Cleon Reis, are EU nationals appealing against the decision to deport them following convictions for criminal offences. A third claimant, S, is a Nigerian citizen and the victim of trafficking and argues he has the right to legal assistance to establish that he is such a victim.
IS is a 59-year-old Nigerian who is blind and has a mental condition and is unable to say when he entered the UK. The Official Solicitor has acted as his litigation friend.
He was evicted from his private rented accommodation and has had to bring community care proceedings against his local authority.
B is an Iranian national who arrived in the UK in March 2013. She claimed asylum fearing persecution for her political activities. She was granted refugees status and given five years leave to remain. She made an application for family reunion to enable her husband and son to join her in the UK.
Jacqueline Elizabeth Edgehill is a Jamaican national admitted to the UK in September 1998 as a visitor. She was granted leave to remain as a student and then applied for leave to remain on the ground of ancestry, asserting that she had been born in the UK but sent to Jamaica where she was brought up.
The application was refused and Edgehill became an overstayer. She applied for a certificate that she was entitled to remain here, which was refused and has sought leave to take the case to the Court of Appeal.
The ground-breaking decision will be seen by many as a blow to the government’s flagship LASPO legislation, introduced to reform the legal aid system in order to cut the legal aid bill by £350m a year by 2015.
The act made wide-ranging changes to the provision and scope of legal aid, including for immigration cases, and most of the reforms came into force on April 1 2013.
Law Society head of legal aid Richard Miller said: ‘The Law Society is delighted that in a case we supported to challenge the exceptional funding test under LASPO, the court has ruled that the lord chancellor’s guidance is unlawful because it is too restrictive.
‘This vindicates our view that the LAA has been applying an unreasonably narrow interpretation to the test, and we hope this case will lead to a more reasonable approach.’
A Ministry of Justice spokesman said the ministry is ‘disappointed’ with the judgment and is pursuing an appeal. He said: ‘Legal aid is a vital part of our justice system but resources are not limitless and must be targeted at the cases that need it most. The system must be fair for those who use it and the taxpayers who pay for it.
‘This government brought forward legislation to remove legal aid for most immigration cases, except asylum claims, but agreed an exceptional funding scheme to make sure we also meet our international obligations.’