Session 2010 - 12
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Legal Aid, Sentencing and Punishment of Offenders Bill


Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 1 — Civil legal services
Part 1 — Services

153

 

the potential to produce a benefit for the individual, a member of the

individual’s family or the environment.

      (4)  

Sub-paragraph (3) does not exclude services provided in relation to a

judicial review where the judicial review ceases to have the potential to

produce such a benefit after civil legal services have been provided in

5

relation to the judicial review under arrangements made for the purposes of

this Part of this Act.

           

Specific exclusions: immigration cases

      (5)  

The services described in sub-paragraph (1) do not include services

provided in relation to judicial review in respect of an issue relating to

10

immigration where—

(a)   

the same issue, or substantially the same issue, was the subject of a

previous judicial review or an appeal to a court or tribunal,

(b)   

on the determination of the previous judicial review or appeal (or, if

there was more than one, the latest one), the court, tribunal or other

15

person hearing the case found against the applicant or appellant on

that issue, and

(c)   

the services in relation to the new judicial review are provided before

the end of the period of 1 year beginning with the day of that

determination.

20

      (6)  

The services described in sub-paragraph (1) do not include services

provided in relation to judicial review of removal directions in respect of an

individual where the directions were given not more than 1 year after the

latest of the following—

(a)   

the making of the decision (or, if there was more than one, the latest

25

decision) to remove the individual from the United Kingdom by way

of removal directions;

(b)   

the refusal of leave to appeal against that decision;

(c)   

the determination or withdrawal of an appeal against that decision.

      (7)  

Sub-paragraphs (5) and (6) do not exclude services provided to an

30

individual in relation to—

(a)   

judicial review of a negative decision in relation to an asylum

application (within the meaning of the EU Procedures Directive)

where there is no right of appeal to the First-tier Tribunal against the

decision;

35

(b)   

judicial review of certification under section 94 or 96 of the

Nationality, Immigration and Asylum Act 2002 (certificate

preventing or restricting appeal of immigration decision).

      (8)  

Sub-paragraphs (5) and (6) do not exclude services provided in relation to

judicial review of removal directions in respect of an individual where

40

prescribed conditions relating to either or both of the following are met—

(a)   

the period between the individual being given notice of the removal

directions and the proposed time for his or her removal;

(b)   

the reasons for proposing that period.

           

Definitions

45

      (9)  

For the purposes of this paragraph an individual is a member of another

individual’s family if—

(a)   

they are relatives (whether of the full blood or half blood or by

marriage or civil partnership),

 
 

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 1 — Civil legal services
Part 1 — Services

154

 

(b)   

they are cohabitants (as defined in Part 4 of the Family Law Act

1996), or

(c)   

one has parental responsibility for the other.

     (10)  

In this paragraph—

“EU Procedures Directive” means Council Directive 2005/85/EC of 1

5

December 2005 on minimum standards on procedures in Member

States for granting and withdrawing refugee status;

“an issue relating to immigration” includes an issue relating to rights

described in paragraph 32 of this Part of this Schedule;

“judicial review” means—

10

(a)   

the procedure on an application for judicial review (see

section 31 of the Senior Courts Act 1981), but not including

the procedure after the application is treated under rules of

court as if it were not such an application, and

(b)   

any procedure in which a court, tribunal or other person

15

mentioned in Part 3 of this Schedule, or responsible for

determining proceedings prescribed under paragraph 23 of

that Part, is required by an enactment to make a decision

applying the principles that are applied by the court on an

application for judicial review;

20

“removal directions” means directions under—

(a)   

paragraphs 8 to 10A of Schedule 2 to the Immigration Act

1971 (removal of persons refused leave to enter and illegal

entrants);

(b)   

paragraphs 12 to 14 of Schedule 2 to that Act (removal of

25

seamen and aircrew);

(c)   

paragraph 1 of Schedule 3 to that Act (removal of persons

liable to deportation);

(d)   

section 10 of the Immigration and Asylum Act 1999 (removal

of certain persons unlawfully in the United Kingdom);

30

(e)   

section 47 of the Immigration, Asylum and Nationality Act

2006 (removal of persons with statutorily extended leave).

Habeas corpus

22    (1)  

Civil legal services provided in relation to a writ of habeas corpus ad

subjiciendum.

35

           

Exclusions

      (2)  

Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this

Schedule.

Abuse of position or powers by public authority

23    (1)  

Civil legal services provided in relation to abuse by a public authority of its

40

position or powers.

           

General exclusions

      (2)  

Sub-paragraph (1) is subject to—

(a)   

the exclusions in Part 2 of this Schedule, with the exception of

paragraphs 1, 2, 3, 4, 5, 6, 8 and 12 of that Part, and

45

(b)   

the exclusion in Part 3 of this Schedule.

 
 

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 1 — Civil legal services
Part 1 — Services

155

 

           

Specific exclusion

      (3)  

The services described in sub-paragraph (1) do not include services

provided in relation to clinical negligence.

           

Definitions

      (4)  

For the purposes of this paragraph, an act or omission by a public authority

5

does not constitute an abuse of its position or powers unless the act or

omission—

(a)   

is deliberate or dishonest, and

(b)   

results in harm to a person or property that was reasonably

foreseeable.

10

      (5)  

In this paragraph—

“clinical negligence” means breach of a duty of care or trespass to the

person committed in the course of the provision of clinical or medical

services (including dental or nursing services);

“public authority” has the same meaning as in section 6 of the Human

15

Rights Act 1998.

Breach of Convention rights by public authority

24    (1)  

Civil legal services provided in relation to—

(a)   

a claim in tort, or

(b)   

a claim for damages (other than a claim in tort),

20

           

in respect of an act or omission by a public authority that involves a

significant breach of Convention rights by the authority.

           

General exclusions

      (2)  

Sub-paragraph (1) is subject to—

(a)   

the exclusions in Part 2 of this Schedule, with the exception of

25

paragraphs 1, 2, 3, 4, 5, 6, 8 and 12 of that Part, and

(b)   

the exclusion in Part 3 of this Schedule.

           

Specific exclusion

      (3)  

The services described in sub-paragraph (1) do not include services

provided in relation to clinical negligence.

30

           

Definitions

      (4)  

In this paragraph—

“clinical negligence” means breach of a duty of care or trespass to the

person committed in the course of the provision of clinical or medical

services (including dental or nursing services);

35

“Convention rights” has the same meaning as in the Human Rights Act

1998;

“public authority” has the same meaning as in section 6 of that Act.

Clinical negligence and severely disabled infants

25    (1)  

Civil legal services provided in relation to a claim for damages in respect of

40

clinical negligence which caused a neurological injury to an individual (“V”)

as a result of which V is severely disabled, but only where the first and

second conditions are met.

      (2)  

The first condition is that the clinical negligence occurred—

 
 

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 1 — Civil legal services
Part 1 — Services

156

 

(a)   

while V was in his or her mother’s womb, or

(b)   

during or after V’s birth but before the end of the following period—

(i)   

if V was born before the beginning of the 37th week of

pregnancy, the period of 8 weeks beginning with the first day

of what would have been that week;

5

(ii)   

if V was born during or after the 37th week of pregnancy, the

period of 8 weeks beginning with the day of V’s birth.

      (3)  

The second condition is that—

(a)   

the services are provided to V, or

(b)   

V has died and the services are provided to V’s personal

10

representative.

           

General exclusions

      (4)  

Sub-paragraph (1) is subject to—

(a)   

the exclusions in Part 2 of this Schedule, with the exception of

paragraphs 1, 2, 3 and 8 of that Part, and

15

(b)   

the exclusion in Part 3 of this Schedule.

           

Definitions

      (5)  

In this paragraph—

“birth” means the moment when an individual first has a life separate

from his or her mother and references to an individual being born are

20

to be interpreted accordingly;

“clinical negligence” means breach of a duty of care or trespass to the

person committed in the course of the provision of clinical or medical

services (including dental or nursing services);

“disabled” means physically or mentally disabled;

25

“personal representative”, in relation to an individual who has died,

means—

(a)   

a person responsible for administering the individual’s estate

under the law of England and Wales, Scotland or Northern

Ireland, or

30

(b)   

a person who, under the law of another country or territory,

has functions equivalent to those of administering the

individual’s estate.

Special Immigration Appeals Commission

26    (1)  

Civil legal services provided in relation to proceedings before the Special

35

Immigration Appeals Commission.

           

Exclusions

      (2)  

Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this

Schedule.

Immigration: detention

40

27    (1)  

Civil legal services provided in relation to—

(a)   

detention under the authority of an immigration officer;

(b)   

detention under Schedule 3 to the Immigration Act 1971;

(c)   

detention under section 62 of the Nationality, Immigration and

Asylum Act 2002;

45

 
 

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 1 — Civil legal services
Part 1 — Services

157

 

(d)   

detention under section 36 of the UK Borders Act 2007.

           

Exclusions

      (2)  

Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this

Schedule.

Immigration: temporary admission

5

28    (1)  

Civil legal services provided in relation to temporary admission to the

United Kingdom under—

(a)   

paragraph 21 of Schedule 2 to the Immigration Act 1971;

(b)   

section 62 of the Nationality, Immigration and Asylum Act 2002.

           

Exclusions

10

      (2)  

Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this

Schedule.

Immigration: residence etc restrictions

29    (1)  

Civil legal services provided in relation to restrictions imposed under—

(a)   

paragraph 2(5) or 4 of Schedule 3 to the Immigration Act 1971

15

(residence etc restrictions pending deportation);

(b)   

section 71 of the Nationality, Immigration and Asylum Act 2002

(residence etc restrictions on asylum-seekers).

           

Exclusions

      (2)  

Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this

20

Schedule.

Immigration: victims of domestic violence and indefinite leave to remain

30    (1)  

Civil legal services provided to an individual (“V”) in relation to an

application by V for indefinite leave to remain in the United Kingdom on the

grounds that—

25

(a)   

V was given leave to enter or remain in the United Kingdom for a

limited period as the partner of another individual present and

settled in the United Kingdom, and

(b)   

V’s relationship with the other individual broke down permanently

because V was the victim of domestic violence.

30

           

General exclusions

      (2)  

Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this

Schedule.

           

Specific exclusion

      (3)  

The services described in sub-paragraph (1) do not include attendance at an

35

interview conducted on behalf of the Secretary of State with a view to

reaching a decision on an application.

           

Definitions

      (4)  

For the purposes of this paragraph, one individual is a partner of another

if—

40

(a)   

they are married to each other,

(b)   

they are civil partners of each other, or

(c)   

they are cohabitants.

 
 

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 1 — Civil legal services
Part 1 — Services

158

 

      (5)  

In this paragraph—

“cohabitant” has the same meaning as in Part 4 of the Family Law Act

1996 (see section 62 of that Act);

“domestic violence” means threatening behaviour, violence or abuse

(whether psychological, physical, sexual, financial or emotional)

5

between individuals who are associated with each other (within the

meaning of section 62 of the Family Law Act 1996);

“indefinite leave to remain in the United Kingdom” means leave to

remain in the United Kingdom under the Immigration Act 1971

which is not limited as to duration;

10

“present and settled in the United Kingdom” has the same meaning as

in the rules made under section 3(2) of the Immigration Act 1971.

Immigration: victims of domestic violence and residence cards

31    (1)  

Civil legal services provided to an individual (“V”) in relation to a residence

card application where V—

15

(a)   

has ceased to be a family member of a qualified person on the

termination of the marriage or civil partnership of the qualified

person,

(b)   

is a family member who has retained the right of residence by virtue

of satisfying the conditions in regulation 10(5) of the Immigration

20

(European Economic Area) Regulations 2006 (S.I. 2006/1003) (“the

2006 Regulations”), and

(c)   

has satisfied the condition in regulation 10(5)(d)(iv) of the 2006

Regulations on the ground that V or a family member of V was the

victim of domestic violence while the marriage or civil partnership of

25

the qualified person was subsisting.

           

General exclusions

      (2)  

Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this

Schedule.

           

Specific exclusion

30

      (3)  

The services described in sub-paragraph (1) do not include attendance at an

interview conducted on behalf of the Secretary of State with a view to

reaching a decision on an application.

           

Definitions

      (4)  

In this paragraph—

35

“domestic violence” means threatening behaviour, violence or abuse

(whether psychological, physical, sexual, financial or emotional)

between individuals who are associated with each other (within the

meaning of section 62 of the Family Law Act 1996);

“family member” has the same meaning as in the 2006 Regulations (see

40

regulations 7 and 9);

“family member who has retained the right of residence” has the same

meaning as in the 2006 Regulations (see regulation 10);

“qualified person” has the same meaning as in the 2006 Regulations

(see regulation 6);

45

“residence card application” means—

(a)   

an application for a residence card under regulation 17 of the

2006 Regulations, or

 
 

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 1 — Civil legal services
Part 1 — Services

159

 

(b)   

an application for a permanent residence card under

regulation 18(2) of the 2006 Regulations.

Immigration: rights to enter and remain

32    (1)  

Civil legal services provided in relation to rights to enter, and to remain in,

the United Kingdom arising from—

5

(a)   

the Refugee Convention;

(b)   

Article 2 or 3 of the Human Rights Convention;

(c)   

the Temporary Protection Directive;

(d)   

the Qualification Directive.

           

General exclusions

10

      (2)  

Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this

Schedule.

           

Specific exclusion

      (3)  

The services described in sub-paragraph (1) do not include attendance at an

interview conducted on behalf of the Secretary of State with a view to

15

reaching a decision on a claim in respect of the rights mentioned in that sub-

paragraph, except where regulations provide otherwise.

           

Definitions

      (4)  

In this paragraph—

“the Human Rights Convention” means the Convention for the

20

Protection of Human Rights and Fundamental Freedoms, agreed by

the Council of Europe at Rome on 4 November 1950 as it has effect

for the time being in relation to the United Kingdom;

“the Qualification Directive” means Council Directive 2004/83/EC of

29 April 2004 on minimum standards for the qualification and status

25

of third country nationals or stateless persons as refugees or as

persons who otherwise need international protection and the content

of the protection granted;

“the Refugee Convention” means the Convention relating to the Status

of Refugees done at Geneva on 28 July 1951 and the Protocol to the

30

Convention;

“the Temporary Protection Directive” means Council Directive 2001/

55/EC of 20 July 2001 on minimum standards for giving temporary

protection in the event of a mass influx of displaced persons and on

measures promoting a balance of efforts between Member States in

35

receiving such persons and bearing the consequences thereof.

Immigration: accommodation for asylum-seekers etc

33    (1)  

Civil legal services provided in relation to the Secretary of State’s powers to

provide, or arrange for the provision of, accommodation under—

(a)   

section 4 or 95 of the Immigration and Asylum Act 1999

40

(accommodation for persons temporarily admitted and asylum-

seekers);

(b)   

section 17 of the Nationality, Immigration and Asylum Act 2002

(support for destitute asylum-seekers).

           

Exclusions

45

 
 

 
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Revised 22 March 2012