The Legal Aid Agency has finally conceded over immigration advice for victims of modern slavery
Marc Bloomfield
The Legal Aid Agency (LAA) conceded a judicial review in April about legally-aided immigration advice for victims of trafficking (R (LL) v Lord Chancellor CO/3581/2017).
The case was about the interpretation of Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) Sch 1 Part 1 para 32(1). ATLEU’s client, LL, is a young woman who was brought to the UK and sexually exploited as a child. The government found her to be a potential victim of trafficking and gave her a positive reasonable grounds decision in the National Referral Mechanism (NRM). We applied for an extension of our disbursement limit on a legal help immigration file. The extra funds requested were to assist LL’s case about getting discretionary leave to remain as a victim of trafficking and being identified as a victim (a necessary precursor to the grant of leave).
The LAA said no to the funding extension and that this type of work had never been in scope of LASPO at all, even to help a victim obtain discretionary leave. It said victims will be ‘automatically considered’ for discretionary leave to remain by the Home Office so there was no formal immigration application requiring legal assistance; there is no right to legal aid to help someone be identified as a victim, even if they apply for leave to remain and they could access a lawyer through the exceptional case funding scheme.
LL applied for judicial review. She was initially refused permission, but it was subsequently granted after an oral permission hearing. The day before the final hearing was due to happen in the High Court, the lord chancellor conceded that they had been wrong.
The government revised its position and confirmed that victims of trafficking have the right to legal aid:
for immigration advice where they need advice on leave to enter or remain and have a government decision that they are a potential victim of trafficking (called a ‘reasonable grounds’ decision) or definitely a victim of trafficking (called a ‘conclusive grounds’ decision);
where they argue they should be granted discretionary leave to remain as a victim of trafficking;
whether the immigration application is made formally or informally (ie, whether or not an application form is used when requesting leave); and
for advice about whether they are a victim of trafficking or not, but only when they are getting advice on leave to enter or remain too (for any reason, not just because they are a victim).
The LAA confirmed it will extend this interpretation to victims of slavery, servitude and forced or compulsory labour as well (under LASPO Sch 1 Part 1 para 32A). This means victims of all types of modern slavery have a confirmed right to free immigration advice.
This position has been published in a LAA news story on the GOV.UK website (‘Civil news: funding for victims of modern slavery and trafficking’, 9 May 2018) and a document on the ‘Work out who qualifies for civil legal aid’ guidance page (Clarification of funding in trafficking cases, 9 May 2018).
The outcome of the case is welcome, although it is disappointing that it took almost a year to resolve, and that the fight was one the LAA considered worth having, after LASPO had been in force for four years. While LL and other victims were in limbo, with their cases on hold, the LAA refused to publish any clarification of their position for legal aid providers.
The headline for lawyers is you should get paid for immigration advice to victims on cases past and present and, if in doubt, use the outcome of this case to back you up. Make sure you are always clear on your file and in communications with the LAA that your work for a victim is primarily about helping them get leave to remain. Helping someone to be identified as a victim can then also be in scope under LASPO but not without the advice on leave to remain too.
Also, remember that applications for discretionary leave to remain for victims are a tool in your arsenal. Victims can be granted discretionary leave if they get a positive conclusive grounds decision and a file can be opened as soon as they get a positive reasonable grounds decision. Your advice is vital to their chance of success. There are a large number of victims of modern slavery and most of them will need advice on their entitlement to leave. There has been a year-on-year rise in referrals into the NRM since 2013, with a 35 per cent increase from 2016 to 2017 (Modern slavery and human trafficking: National Referral Mechanism statistics annual report 2017, National Crime Agency, 26 March 2018; revised 23 April 2018).
If you encounter problems with the LAA over the scope of immigration legal aid for victims, please email us and let us know.

About the author(s)

Carita Thomas is a solicitor at ATLEU.