When the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) came into effect in 2013, it introduced significant reforms to the legal aid system in England and Wales, including removing most immigration matters from the scope of legal aid. The exceptional case funding (ECF) scheme was introduced by LASPO to ensure that individuals would still be able to access legal aid where their human rights would otherwise be breached.

Public Law Project (PLP) has done significant work to improve access to ECF, but our recent research indicates that it can still be inaccessible to many.1Emma Marshall, Improving exceptional case funding: responding to COVID-19, PLP, October 2020. This is due to the practical barriers that individuals experience in making applications and the burden the scheme places on legal aid providers.2See also Joe Tomlinson and Emma Marshall, Improving exceptional case funding: providers’ perspectives, PLP, January 2020. Earlier this year, Katy Watts, a solicitor at PLP, wrote in this magazine about some of the positive changes to the scheme, but also the additional challenges presented by COVID-19.3July/August 2020 Legal Action 20.

The research conducted by PLP in response to the pandemic highlights that ECF applications negatively impact the capacity of providers; a situation further exacerbated by COVID-19. One legal aid provider explained:

Our research also indicates that bringing immigration cases based on article 8 of the European Convention on Human Rights (the right to private and family life) within scope is a potential way of easing the administrative burden on providers and improving the accessibility of legal aid.

It has been acknowledged elsewhere that the narrow scope of legal aid for immigration cases at present is problematic. The Joint Committee on Human Rights (JCHR) has recommended that the government should consider bringing article 8 immigration cases back within the scope of legal aid,5Enforcing human rights. Tenth report of session 2017–19, HC 669/HL Paper 171, 19 July 2018, para 55, page 18. as well as indicating that there is a case for bringing all immigration matters into scope.6Immigration detention. Sixteenth report of session 2017–19, HC 1484/HL Paper 278, 7 February 2019, para 47, pages 18–19.

Taking into account the data available from the Ministry of Justice (MoJ), immigration is perhaps the one area of law that has seen a significant increase in both applications for and grants of ECF. Since the introduction of the ECF scheme, the number of applications for immigration legal aid, and the grant rate, has gone up significantly and continues to be higher than any other area of law.7Legal aid statistics England and Wales tables April to June 2020, MoJ, 24 September 2020, table 8.2. There were 2,525 immigration applications made in the 2019/20 financial year, and over 80 per cent of those applications were successful.

Where grant rates for immigration are high, it may indicate that there is a need for legal aid in a significant majority of cases to avoid a breach of human rights. Bringing article 8 cases back into scope would allow legal aid providers to focus on solving client problems, rather than a bureaucratic application process. It could also improve the efficiency of government decision-making by allowing the exceptional and complex cases team to focus on other priority applications. This is indicated by the temporary drop in applications being processed by the team during the first months of COVID-19, which, according to the Civil Contracts Consultative Group minutes from May 2020, allowed for ‘good and sustained performance’.8Civil Contracts Consultative Group (CCCG) minutes v2 13 May 2020, Legal Aid Agency, item 12, page 6.

Another possible reason for bringing article 8 into scope is the persistent inaccessibility of immigration advice in some areas of the country. Where advice ‘deserts’ or ‘droughts’ exist,9Dr Jo Wilding, Droughts and deserts: a report on the immigration legal aid market, 2019. the situation can be compounded by the ECF scheme, where it is also often difficult to secure a legal provider for cases that fall within the scope of legal aid.10Emma Marshall, Exceptional case funding clinics: a study into the feasibility of extending access to legal aid through clinical legal education programmes, PLP, 5 April 2018, pages 18–20. For example, in the south-west of England, the geographic characteristics of the region mean that the physical accessibility of advice has long been an issue. Individuals can, however, face additional significant delays to their cases where they must first apply for ECF and then find a provider to take on their case.

Despite improvements to the ECF scheme since its introduction, it remains an additional and complex process that advisers must go through to get legal aid for their clients, or that individuals must navigate themselves, particularly where they are unable to secure a provider to make an application on their behalf. Bringing article 8 cases into scope could make economic sense where it would remove an additional layer of government decision-making, and it could help to improve access to justice for those most in need.