Legal Aid for Sanctuary Summit

About ILPA

The Immigration Law Practitioners’ Association (ILPA) is a registered charity and a professional membership association. The majority of members are barristers, solicitors and advocates practising in all areas of immigration, asylum and nationality law. Academics, non-governmental organisations and individuals with an interest in the law are also members. Founded in 1984, ILPA exists to promote and improve advice and representation in immigration, asylum and nationality law through an extensive programme training and disseminating information and by providing evidence-based research and opinion. ILPA is represented on advisory and consultative groups convened by Government departments, public bodies and non-governmental organisations.

About Legal Aid

Legal Aid is legal advice and/or representation available to people unable to pay for the service themselves. To provide legal aid services to clients, a law firm, law centre or other organisation must hold a contract with the Legal Aid Agency. Contracts are awarded in different areas of law.

Whether a person can get legal aid depends upon

1. Whether the matter is within the scope of legal aid?

2. Does the person qualify for legal aid under the means test?

3. Does the person qualify under the merits/sufficient benefit test?

The Scope of Legal Aid in immigration and asylum

For persons who satisfy the means and merits tests there is legal aid for Asylum

This means claims under The 1951 Refugee Convention; Articles 2 and 3 of the European Convention on Human Rights; The Temporary Protection Directive (Council Directive 2001/55/EC of

20 July 2001);

The Qualification Directive) Council Directive 2004/83/EC of 29 April 2004).

The Government considered that refugee family reunion was outside the scope of legal aid. This was challenged in the courts. The challenge was successful, but the Government is appealing. In the meantime it has agreed to treat to refugee family reunion cases as being within the scope of legal aid. People who may qualify for refugee family reunion and for legal aid are strongly advised to get advice now; later the cases may be outside the scope of legal aid again.

If a person gets advice on an asylum claim and never claims asylum, legal costs paid arerestricted to £100.

Challenges to Immigration Detention

Legal aid for bail, temporary release or temporary admission, including challenges to conditions applied on release. There is not legal aid for the detainee’s substantive immigration application.

Survivors of Domestic Violence

Applications for Indefinite Leave to Remain under the domestic violence immigration rule and for European residence permits on the grounds of retained rights of residence arising from domestic violence. This only includes people with leave under the immigration rules as partners/spouses who have suffered domestic violence, not children or other family members who have suffered domestic violence.

The time spent on advising and assisting a victim with an application under the 3-month Destitute Domestic Violence Concession claimed as part of the advice given. Domestic violence is defined to mean “any incident, or pattern of incidents, of controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other”1. Hence the abusive behaviour can be from a family member and not just the partner/spouse.

Trafficked persons

Legal aid is available for an application for leave to enter or remain for someone who is trafficked. However the person must show that there has been a conclusive determination under the “National Referral Mechanism” that they are a victim of trafficking or that there is a ‘reasonable grounds determination’ that they are a victim and there has been no conclusive determination to say that they are not. A victim of trafficking is not therefore

1 Para 29(4) Schedule 1, Part 1 as amended by regulation 4 The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2013.

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entitled to legal aid before going to the authorities, unless they begin their case as an asylum case.

Special Immigration Appeals Commission

All proceedings before the Commission which deals with national security cases.

Asylum Support

There is legal aid for asylum support cases where accommodation and subsistence are sought. Cases where only subsistence is sought will no longer be within the scope of legal aid. However, legal aid is only available for advice, not for representation before the First-tier Tribunal (asylum support). The Asylum Support Appeals Project continues to assist persons at their appeal.

Judicial Review

There is legal aid for judicial review in all areas of law, whether the area is generally within or outside the scope of legal aid in its own right. However there are some exclusions in immigration cases. Where there has been an appeal hearing or determination on the same, or substantially the same, issue within 12 months and the decision was not in favour of the appellant, legal aid will not be available. Similarly where an appeal against removal has been decided within 12 months of judicial review being sought against removal, legal aid will not be available.

However, funding arrangements can make it difficult to get legal aid. Judicial review is in two stages: first you get permission from the court to bring the case at all, then you have the judicial review. Lawyers are only paid for the initial work they do to persuade the court that they are right to bring the case at all if the application for permission succeeds or if the Legal Aid Agency makes a payment on a discretionary basis. This makes lawyers cautious about taking these cases.

Appeals

If a case is within the scope of legal aid, all appeals are within the scope of legal aid. If it is not they are not, even if the case goes all the way to the Supreme Court.

Exclusions

All other immigration-related matters are excluded from the scope of legal aid. There are no provisions to include children specifically and in immigration cases if an adult is out of scope, a child will be also. Thus, for example cases based solely on Article 8 of the European Convention on Human Rights, challenges to deportation, including following criminal

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conviction, where there is no asylum claim, and entry clearance applications and appeals. There are no provisions to provide legal aid funding where people have mental health or other problems or for those in immigration detention.

What about mixed cases?

Where there is a mixture of work that is within the scope of legal aid and that is outside it, only the bit within the scope of legal aid is funded, e.g. an asylum case where the person also has family in the UK. The person will either need to secure free help for the part outside the scope of legal aid (the family life part) or to pay or to represent him/herself

What to do if a case is outside scope - Exceptional Cases

There is a provision to grant legal aid in exceptional cases where failure to provide legal aid would amount to a breach of a person’s human rights or rights under European Union law. The Legal Aid Agency has awarded funding in very few cases, across all areas of law. So few that is has been the subject of a legal challenge. This succeeded but the Government is appealing.

An exceptional funding application involves a lawyer completing an exceptional funding form, a means and merits test funding. There is a lot to do and there is limited enthusiasm for doing it given that the prospects of success are so poor. This is a big problem as it means that the Legal Aid Agency is not being pushed to grant legal aid in these cases.

It is possible for an individual to make a more informal application for an initial view on whether an exceptional funding challenge would succeed. This results in a preliminary view from the Legal Aid Agency which they can take to a lawyer to persuade them to make the formal application.

It is hoped that a successful legal challenge will mean a more reasonable approach from the Legal Aid Agency and that this in turn will make lawyers think it is worth taking the time to make the application.

Eligibility

The Means test

The means test looks at your (and your partner’s) income and capital to decide whether you are poor enough to qualify for legal aid. The Agency can also enquire about the resources of other persons, family or friends, who are providing you with support.

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There is a special means form for persons in receipt of income support or income-based Jobseeker's Allowance.

If your finances improve you may cease to be eligible for legal aid. Legal representatives have to see evidence of lack of means.

The means threshold is set low. There are a lot of people who do not have enough money to pay for legal representation but cannot afford legal aid. The Merits test

The merits test is different at different levels. The levels are

Controlled WorkLegal Help: this covers advice and assistance on matters within the Immigration category of law, such as making an application for asylum. The work necessary to comply with any steps prior to issuing a judicial review in the High Court (called “pre action protocol work”) is normally legal help

Controlled Legal Representation: this covers representation before the Immigration and Asylum First tier and Upper Tribunals (appeals and applications for permission to appeal to the Tribunal only).

Licensed Work: This covers legal representation in the higher courts, which can take the form of either full representation in the higher courts or Investigative Help. Limited work to investigate of the strength of the contemplated legal proceedings to obtain disclosure of information relevant to the prospects of success of the proceedings and/or (b)  to protect the position of the person in an urgent case can be done as investigative representation.

Criteria for determinations for Legal Help

Merits test:i) It is reasonable for the individual to be provided with legal help, having

regard to any potential sources of funding ...ii) There is likely to be sufficient benefit to the individual, having regard

to all the circumstances of the case and the individual to justify the cost of provision of legal help.

It is primarily a test of whether a reasonable private paying client of moderate means would pay for the legal advice and assistance. There is a right of review against the withdrawal or refusal to grant legal help but the review is carried out by the provider who took the decision and there is no prescribed format for the review.

Criteria for determinations for controlled legal representation

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(a) the individual does not have access to other potential sources of funding (other than a conditional fee agreement) from which it would be reasonable to fund the case;(b) the case is unsuitable for a conditional fee agreement (where the lawyer gets paid if the case succeeds);(c) there is no person other than the individual, including a person who might benefit from the proceedings, who can reasonably be expected to bring the proceedings;(d) the individual has exhausted all reasonable alternatives to bringing proceedings including any complaints system, ombudsman scheme or other form of alternative dispute resolution;(e) there is a need for representation in all the circumstances of the case including--

(i) the nature and complexity of the issues;(ii) the existence of other proceedings; and(iii) the interests of other parties to the proceedings

In immigration and trafficking cases where the “reasonable private paying client” test is not met it is possible to consider whether Schedule 1 to the Act only if the Director is satisfied that--

(a) the case is of significant wider public interest, (b) the proportionality test is met; and(c) the prospects of success are--(a) very good, good or moderate; or(b) unclear, and--

(i) the case is of significant wider public interest;(ii) the case is one with overwhelming importance to the individual; or(iii) the substance of the case relates to a breach of Convention rights.

Even where the asylum or immigration appeal lacks merits, the individual can still be granted Controlled Legal Representation for the purpose of a bail application before the Tribunal.

Refusal of Controlled Legal Representation on merits (CW4 form)

If Controlled Legal Representation is refused or withdrawn, a CW4 form must be completed with the date and reasons for the decision and the individual must be given a copy and advised of his./her right or review and the procedure for review. Review is by appeal to an Independent Funding Adjudicator.

Getting Legal Advice and Representation funded by legal aid

http://find-legal-advice.justice.gov.uk/ which allows you to search for an advisor providing publicly funded advice. Some information is misleading.

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Complaintswww. legalombudsman .org.uk Website of the Legal Ombuds, with useful information on how to complain about legal representatives.

Future Changes

The government proposed a residence test for legal aid whereby it would be necessary to show lawful residence in the UK at the time of application for legal aid and 12 months lawful residence prior to that date to qualify for legal aid. There were proposed exceptions, but these were very restrictive. For example while there were proposed exceptions for trafficked persons, these would be even narrower than the current exceptions so that trafficked persons would not qualify for legal aid for judicial review. Similarly with survivors of domestic violence. There was a legal challenge to the residence test. It succeeded on the basis that:i) The Legal Aid, Sentencing and Punishment of Offenders Act gives the

Government powers to limit legal aid to those most in need, not on the basis of immigration status.

ii) The test was discriminatory.

The Government is appealing the decision so we are not safe from a residence test or a version of it, in the future.

How can I campaign for greater access to legal aid?

Join the Justice Alliance: http://justiceallianceuk.wordpress.com/ - the website has actions you can take

Sign Joanna Lumley’s petition http://www.change.org/p/nick-clegg-mp-save-legal-aid-to-protect-access-to-justice-for-all

Act locally: Get in touch with your local MP. His /her staff are seeing these cases so

s/he may well understand. Write to your local paper Get in touch with local legal and advice centres to try to find out whether

they are running local campaigns.

These campaigns need non lawyers involved to demonstrate that we are all working to protect clients, rather than lawyers jobs (lawyers can get better paid jobs if they do not do legal aid).

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