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When I qualified, six months after the passage of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), it appeared that irreparable damage had been wrought to the route through which poor and marginalised people should be able to access help, advice and representation to uphold and defend their legal rights.
In the following years, Public Law Project’s (PLP’s) work resulted in incremental improvements. In my previous role at the Migrants’ Law Project, my own clients benefited directly from challenges brought by PLP to the ‘residence test’
1R (Public Law Project) v Lord Chancellor [2016] UKSC 39; November 2016 Legal Action 20. and the exceptional case funding (ECF) scheme.
2R (Gudanaviciene and others) v Director of Legal Aid Casework and Lord Chancellor [2014] EWCA Civ 1622 and IS v Director of Legal Aid Casework and Lord Chancellor [2015] EWHC 1965 (Admin). Having seen the impact of PLP’s work, I am delighted to be joining PLP and leading on legal aid.
However, the current system of legal aid remains broken and ECF – designed to act as a safety net for the most vulnerable – is inadequate. PLP is committed to continuing its important work in this area and eager to work with partners to improve the position.
Reuniting a child with his family
In late 2015, a 15-year-old boy arrived in the Calais ‘Jungle’ camp. For weeks, my client endured conditions that the president of the Upper Tribunal would later describe as ‘about as deplorable as any citizen of the developed nations could imagine’ (
R (ZAT and others) v Secretary of State for the Home Department (Article 8 ECHR – Dublin Regulation – interface – proportionality) IJR [2016] UKUT 61 (IAC); July/August 2016
Legal Action 31 at para 5). He knew nothing of his right to be reunited with extended family in the UK under EU law. We could find only one example of a transfer from France in the previous five years.
A series of judicial review claims, brought by unaccompanied children outside the UK and their newly settled refugee family members in the UK, turned that position around. The UK now receives more asylum-seekers for family reunion under the Dublin III Regulation (
Regulation (EU) 604/2013) than it returns to the EU frontier countries under ‘take back’ provisions.
3Immigration statistics: asylum and resettlement – Dublin Regulation, Home Office, 27 February 2020, table DUB_D01.Had the government succeeded in restricting legal aid to people who have been in the UK for 12 months, those families would never have accessed legal aid and would have remained separated across Europe. This year, that boy, now a young man, saw his parents and siblings arrive with leave outside the Immigration Rules. That followed a two-year journey through the courts funded by ECF.
PLP’s ongoing legal aid work and the need for further improvements
The first year of the ECF scheme saw just 1,315 non-inquest applications, with a one per cent success rate. Through casework, training and advising organisations supporting individuals with applications, PLP has sought to increase the number of non-inquest applications to 3,000 per year, with a success rate of over 60 per cent. Applications rose to 3,305 for the year 2019/20 with an overall grant rate of 69 per cent.
4Legal aid statistics England and Wales tables January to March 2020, Ministry of Justice, 25 June 2020, table 8.2.However, PLP is concerned that some direct applicants are struggling to access advice once they receive a grant of ECF. This problem is linked to longstanding issues with the sustainability of legal aid that have allowed areas (‘
advice deserts’) to develop where individuals are unable to access good-quality advice and assistance.
PLP also considers that there are a range of other areas of law that are no longer (or never were) within the scope of legal aid, but where it is nonetheless required to avoid a breach of rights under the
European Convention on Human Rights (ECHR). Recently, PLP has successfully supported applications for ECF in the First-tier Tribunal (Special Educational Needs and Disability).
In 2019, immigration advice for unaccompanied or separated children was brought back into scope following a judicial review brought by the Children’s Society,
5See Ilona Pinter, ‘Our legal aid success: one year later’, The Children’s Society blog post, 23 July 2019. supported by evidence gathered by PLP. The high ECF grant rate may indicate further areas that should now be brought into scope. ECHR article 8 immigration cases are an obvious example and PLP is currently undertaking research to support the case for this change.
PLP remains concerned that the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 SI No 480 prevent many people on low incomes from accessing desperately needed advice due to unrealistic expectations about their ability to access capital. PLP acts for the claimant in
R (GR) v Director of Legal Aid Casework, a domestic violence survivor refused legal aid for her private law family matter due to nominal capital held in the jointly-owned home that she fled and that she is unable to sell without her abuser’s permission.
6See ‘Domestic violence: challenge to legal aid means regulations’, PLP blog post, 10 June 2020. Judgment is awaited.Getting in touch with PLP
PLP is always interested in opportunities to collaborate and we have a dedicated email address for enquiries:
enquiries@publiclawproject.org.uk. At present, we are particularly interested to hear from organisations working with individuals who are: struggling to access advice in their geographical area; considering ECF applications for issues that have not previously attracted funding; or prevented from accessing help due to capital they only nominally control. PLP’s ECF guides, ‘toolkit’ and upcoming training can all be found on our
website.