3 The merits test
23. Following the Department's submission on 23 February
2005, it became apparent that the Government had chosen to implement
the 'Option 1' merits test, which considers whether a case has
"significant prospects of success". As mentioned above,
this would require far more than the current 'before the event'
test which requires that a case to have a 50% prospect of success.
24. Some of our witnesses were willing to accept
the concept of retrospective funding, if an appropriate test were
established. In his evidence, Mr Justice Collins commented that:
I have no objection in principle to retrospective
public funding provided that it is subject to proper limitations.
It should only apply to renewed applications to the High Court
and not to applications to the tribunal. It is entirely inappropriate
for the tribunal to exercise such a power nor should it depend
upon the ultimate outcome of any reconsideration by the tribunal.
It should only be exercised by the High Court and should depend
upon whether the renewal succeeds in persuading the High Court
to remit the case back to the tribunal or send it to the Court
of Appeal. Neither of the tests proposed is appropriate. Each
is pitched at far too high a level. A real prospect of success
(which is the existing test for granting permission to appeal)
should be the test applicable and that the Court should have a
wide discretion.[15]
25. This approach was also accepted by Ms Emma Saunders
who gave oral evidence representing the Refugee Legal Centre.
She also highlighted the difficulty in assessing what amounted
to 'success', noting that:
I think it [the merits test] should mirror the CLR
test under Legal Aid [reasonable prospects of success]. I think
it is quite important for the Committee to think through the process
and the way it will operate and the point at which the costs penalty
stance comes in. Let us say you have an appellant who has a hearing
before an adjudicator and the adjudicator quite simply gets it
wrong. In arguing that there is an error of law one would hope
that one would get to the next hurdle of a reconsideration hearing.
Assuming that the adjudicator decision was not salvageable, as
is the case with many cases that are remitted, that individual
has effectively been denied a first fair hearing and at the reconsideration
stage it is proposed that they would then have their case heard
afresh as they should have had in the first place. Why is it that
an individual who has been failed by the system at that very first
instance level should not be put back into the position Parliament
intended them to be…[16]
26. The Department was unable to meet this point.
In oral evidence, the Minister, Baroness Ashton of Upholland,
stated that:
I accept that [normally, if you are successful first
time round on the appeal, you get paid], but I think what I am
trying to argue, and again, as a non lawyer perhaps if I look
at it in other aspects of life, when you are trying to design
a system to get the best from that system, if you make sure that
what is put forward as being evidence for why this should be reviewed
again, at the end of that process the person in charge of that
process, in a sense the judge, says, "Yes, actually it was",
and payment is made. It is not no win no fee, but it does perhaps
discourage any possibility that someone might not put all the
information forward at the time or perhaps put it forward in a
particular way.[17]
27. This ignores the fact that when the High Court
considers whether to remit a case back to the AIT, it judges whether
there has been an error of law by the Tribunal, not whether all
the information was put forward by the appellant at the time of
the original decision.
28. When presented with the fact that success rates
are low in other types of case (for example in the criminal context,
only between 9.9% and 11.8% of appeals against conviction were
successful between 2000 and 2004).[18]
The Minister was equally unconvincing, indicating that:
It is very hard for me to make the analogy across
to criminal law because, not being a lawyer and not being responsible
for that area of policy, I do not know why the system is designed
in the way it is. I am sure there are very good reasons why it
is designed in the way it is.[19]
29. The Minister also accepted that the Department
did not necessarily envisage that even well regarded suppliers
would continue to be remunerated at the current rates, regardless
on the impact on their business model, and that some borderline
cases could be turned away at the 'filter mechanism' stating that:
I thought the most interesting piece of evidence
that you had for me was the success rate around the Refugee Legal
Centre, which is 70%, and how close they were to a figure that
would, I think, be very good, but it is not that I look at it
in terms of how do the lawyers do as well as they do now. I think
it is much more for me in terms of making sure that cases that
go forward for the applicant have merit and that we get to a point
of fewer and fewer cases that clearly do not have any merit. There
will always be those on the borderline—I completely accept
that—and there will be cases that go to the filter which
are rejected.[20]
30. The introduction of a retrospective merits
test to legal aid funding would be an unprecedented step. The
Government has not explained why all persons who apply for judicial
review in a regular hearing are considered 'successful' when they
obtain reconsideration, whereas those who demonstrate an error
of law by the Asylum and Immigration Tribunal (AIT) before a High
Court judge in asylum and immigration proceedings may be considered
'unsuccessful'.
31. We believe the level of the test is, in any
event, set too high. It might be acceptable for lawyers not to
be paid if the case they brought was entirely without merit, or
had never had more than a 50% prospect of success. By raising
the threshold it is likely that legitimate appellants will be
disadvantaged. Unless a case is completely clear cut, it is difficult
to see how lawyers will always be able to make an accurate assessment
that a case had "significant prospects of success".
Lawyers considering whether applicants face possible human rights
concerns, if deported, should not have to gamble on funding decisions.
15 Ev 19 Back
16
Q 13 Back
17
Q 70 Back
18
The Court of Appeal Criminal Division, Review of the period
October 2003-September 2004, Lord Chief Justice Woolf and
Lord Justice Rose Back
19
Q 74 Back
20
Q 78 Back
| 
