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Lord Chancellor loses LASPO appeal

Court of Appeal rules legal aid guidance 'unlawful' in immigration cases

15 December 2014

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The Court of Appeal has declared the government guidance on granting legal aid for immigration cases 'unlawful'.

The appeal ruling follows a decision from Mr Justice Collins in the High Court, made earlier this year, in which he declared the guidance issued by the Lord Chancellor as "unlawful and too restrictive".

Collins J quashed the refusals of legal aid in six immigration cases, saying the guidance "sets too high a threshold" and "produces unfairness" by denying publicly-funded legal advice to those in "exceptional cases".

The cases concerned the availability of legal aid in immigration cases under the exceptional funding applications provisions found in section 10 of LASPO.

The judge indicated that in some of the six cases, legal aid should have been granted and that they should all be reconsidered in the light of the ruling.

"I have decided that the guidance in certain respects is indeed unlawful in that it is too restrictive and in other respects not in accordance with the law," he said.

Master of the Rolls Lord Dyson, who heard the appeal with Lord Justice Richards and Lord Justice Sullivan, agreed with the High Court decision.

He concluded that the guidance for allowing exceptional case funding was not compatible with a right to a fair trial under article 6 of the European Convention on Human Rights as well as article 8, relating to the family life in immigration cases, and article 47 of the EU Charter of Fundamental Rights.

Continuing the court's decision, Lord Dyson said the guidance was "unlawful because it misstates the effect of the relevant jurisprudence".

Lord Dyson added that section 10 "correctly identifies many of the factors that should be taken into account in deciding whether to grant exceptional funding, but it neutralises their effect by wrongly stating that the threshold for funding is very high and that legal aid is required only in rare and extreme cases."

"It is also unlawful because - as is conceded by the Lord Chancellor - it wrongly states that there is nothing in the current case law which says that article 8 of the Convention requires the provision of legal aid in immigration proceedings."

Commenting on the judgment, shadow justice minister Andy Slaughter, said: "Just when you thought the mess around the government's legal aid changes couldn't any worse, new depths are plumbed. The government's legal aid cuts were rushed through before preparing the necessary evidence to justify them.

"Labour, alongside most of the legal profession, warned that this would lead to miscarriages of justice and would raise substantial barriers to access to justice. David Cameron should listen and fix the mess he has created."

The latest ruling on LASPO will be seen as yet another set-back in what has been a difficult year for the Lord Chancellor. Grayling has already lost seven judicial reviews, with another two on the way from the Law Society and the Criminal Law Solicitors' Association (CLSA) and the London Criminal Courts Solicitors' Association (LCCSA).

A spokesperson for the Ministry of Justice (MoJ) spokesman said: "We note the judgment and will carefully consider our next steps. We continue to believe that the exceptional funding scheme is functioning as intended. Its purpose is to provide funding where it is legally needed.

"Legal aid is a vital part of our justice system but resources are not limitless and must be properly targeted at the cases that need it most. The system must be sustainable and fair for those who use it and the taxpayers who pay for it."

 
John van der Luit-Drummond is legal reporter for Solicitors Journal

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