The implications for access to justice of the Government's proposals to reform legal aid - Human Rights Joint Committee Contents

2  Residence test


38. There is currently no residence test for access to legal aid funding. Non-residents are (subject to means and merits) eligible for civil legal aid for cases which are within scope and are taking place in England and Wales.


39. In its first proposal,[33] the Government indicated that applicants for civil legal aid funding would have to satisfy a residence test. The Government argued that this would reduce expenditure and preserve legal aid funding for those with a "strong connection" to the UK. The Government argued that this would ensure that only those who paid taxes or had an affiliation with the UK would receive UK funded legal aid.

40. The residence test proposed in the original consultation had two limbs that applicants would need to satisfy:

a)  "First, the individual would need to be lawfully resident in the UK, Crown Dependencies or British Overseas Territories at the time an application for civil legal aid was made";[34] and

b)  "Second, the individual would also be required to have resided lawfully in the UK, Crown Dependencies or British Overseas Territories for 12 months. This 12 month period of lawful residence could be immediately prior to the application for civil legal aid, or could have taken place at any point in the past. However the period should be continuous."[35]

41. The Legal Aid provider would need to see evidence of lawful residence at the time of application, and of the individual having been resident for 12 months prior to the application at some point. The Director of Legal Aid Casework may, pursuant to section 10 LASPO Act 2012, provide for civil legal aid funding to be granted by making an exceptional case determination in relation to the individual and the services, which the Government state will be available on successful application to individuals who do not fulfil the residence test. Serving members of Her Majesty's Armed Forces and their immediate families are exempt from this test.

42. In the Government consultation it was also proposed that asylum seekers would be exempt from this residence test for civil legal aid funding. If asylum seekers were given leave to remain, and were receiving legal aid for a family or civil case, then they would have continued to receive funding for the case. For any new claim for legal aid, an asylum seeker would have had to fulfil the residence test and would therefore not fulfil the residence test requirements until lawfully resident in the UK for a year. Asylum seekers who had not been successful in their claim and exhausted the appeal process would no longer have been eligible for legal aid. If asylum seekers made a fresh claim for asylum, and this claim had been accepted as a fresh claim, then they would have been eligible for legal aid again for this claim.


43. The majority of respondents to the Government consultation responded negatively to the Government's question "Do you agree with the proposed approach for limiting legal aid to those with a strong connection with the UK?" Their key concerns were:

·  vulnerable groups including victims of trafficking, domestic abuse victims, homeless people etc. would not be able to pass the test;

·  children under 12 months of age would not pass the residence test;

·  the test would prevent individuals, not lawfully resident, from challenging and seeking redress for suffering caused through actions of the UK state;

·  the process for exceptional funding would not be able to respond in urgent cases and the application process may prevent people from accessing legal aid;

·  failed asylum seekers would not be able to access legal aid to judicially review the decision of the Home Office;

·  the number of cases that would be affected was unclear;

·  the potential knock-on costs would include increased administration costs for the LAA in administering exceptional funding applications, and court costs could increase as a result of a potential increase in the number of litigants in person; and

·  individuals lacking the capacity to represent themselves in court, but not qualifying for legal aid funding because of the residence test, would be disproportionately affected as they could not realistically bring a case as a litigant in person.

44. The Government responded to the concerns with the following arguments:

·  Exceptional funding, under section 10 of LASPO, ensures that civil legal aid will continue to be provided where failure to do so would breach the ECHR or EU law.

·  Asylum seekers who have had their application refused by the Home Office will still be able to access legal aid in respect of a judicial review of that decision.

·  Funding for representation at inquests is already provided through the exceptional funding scheme.

·  An increase of litigants in person does not offset the justification for bringing in the residence test. Since the LASPO Act has come into force, the number of litigants in person has been monitored and the Government will continue to undertake such monitoring.

45. After considering the consultation responses, the Government said that it would take its original proposal forward, but the following cases would be exempt from having to satisfy the test:

    Detention cases (paragraphs 5, 20, 25, 26 and 27 (and challenges to the lawfulness of detention by way of judicial review under paragraph 19) of Part 1 of Schedule 1 to LASPO)

    Victims of trafficking (paragraph 32 of Part 1 of Schedule 1 to LASPO), victims of domestic violence and forced marriage (paragraphs 11, 12, 13, 16, 28 and 29 of Part 1 of Schedule 1 to LASPO);

    Protection of children cases (paragraphs 1, 349, 950, 10, 15 and 23 of Part 1 of Schedule 1 to LASPO); and

    Special Immigration Appeals Commission (paragraph 24 of Part 1 of Schedule 1 to LASPO). [36]

46. The Government also made the following modifications:

    Children under 12 months will not be required to satisfy the requirement to have a continuous period of at least 12 months previous lawful residence;

    In the case of successful asylum seekers, the continuous 12 month period of lawful residence required under the second limb of the test will begin from the date they submit their asylum claim, rather than the date when that claim is accepted; and

    A break of up to 30 days in lawful residence (whether taken as a single break or several shorter breaks) would not breach the requirement for 12 months of previous residence to be continuous.[37]

47. The Government outlined its intention to bring this modified proposal forward using secondary legislation, to come into effect in early 2014. No statutory instrument had been laid by the time we agreed this Report.

Can a residence test be introduced by secondary legislation?

48. The Memorandum from the Ministry of Justice states that it intends to implement the residence test using the power in section 9 of the LASPO Act to modify Schedule 1 to that Act. Section 9 reads:

    9 General cases

    (1) Civil legal services are to be available to an individual under this Part if—

    (a) they are civil legal services described in Part 1 of Schedule 1, and

    (b) the Director has determined that the individual qualifies for the services in accordance with this Part (and has not withdrawn the determination).

    (2) The Lord Chancellor may by order—

    (a) add services to Part 1 of Schedule 1, or

    (b) vary or omit services described in that Part,

    (whether by modifying that Part or Part 2, 3 or 4 of the Schedule).

49. Some witnesses argued that the residence test would be ultra vires the Lord Chancellor's powers, on the basis that excluding classes of person, rather than services, is not within the wording of section 9(2):

    According to the now well-established common law principle of legality, the general words of the power to make regulations in LASPO are not apt to allow such a fundamental interference with constitutional rights, which can only be effected by primary legislation.[38]

50. During the passage of the LASPO Bill through both Houses, section 9 was the subject of debate as to the nature of the order making power and whether the clause should be amended to allow the addition of services, as well as the power to omit or vary them. We are unaware of any suggestion during such debates that a residence test was contemplated, or that the order making power in this clause would be used to introduce such a test.[39] The order making power in question was drawn to the attention of the House of Lords by the Delegated Powers and Regulatory Reform Committee.[40] The Government responded to these concerns, again without any suggestion that a residence test would be introduced, as follows:

    2.1 The intention is that clause 8(2)[41] will be a focused power to omit services where, for example, funding may no longer be necessary and it will allow whole or parts of paragraphs to be omitted. Our intentions have been set out in our programme of reform in the response to the consultation paper and are reflected in the Bill. Part 1 of Schedule 1 to the Bill sets out the areas for which we will continue to make funding available. Civil legal aid has been limited to these areas following a thorough review based on the importance of the issue, the litigant's ability to present their own case (including their vulnerability), the availability of alternative sources of funding and the availability of alternative routes to resolution. We have used these factors to prioritise funding on the highest priority cases, for example, where people's life or liberty is at stake, where they are at risk of serious physical harm or immediate loss of their home, or where children may be taken into care.

    2.2 Given the importance of the issue of the scope of civil legal aid, of the need to safeguard public funds now and in the future and in light of the historic expansion of the cost to the tax payer of an ever increasing civil legal aid bill, we believe the scope of civil legal aid should be set out in primary legislation, which this Bill places before Parliament for approval. Accordingly we do not think that Ministers should be able to bring areas back into the scope of civil legal aid by secondary legislation.[42]

51. Sarah Teather MP told us that the introduction of the proposed residence test "would mean that many individuals would not be eligible for legal aid even in those cases which the Government has previously accepted are the most serious."[43] Dr Nick Armstrong agreed, telling us:

    There is a powerful argument that it cannot be done under LASPO, because once one delves into the structure of the LASPO Act, and looks at what Parliament, at the primary legislation level, debated at some length, saying, "This is what we are going to do", and looks at the parliamentary debates—"These are the cases which we, Parliament, [consider] should be kept within [scope]"—many of those cases, because they will fail the residence test, will now be out. It is very difficult to see what changed between 1 April, when that Act came into force, and 9 April, when the consultation paper and the proposals were published.[44]

52. Barristers Martha Spurrier, Dr Nick Armstrong and Tim Buley, in oral evidence, suggested that it may not be within the order making powers granted by the LASPO Act 2012 for the Government to introduce the residence test. Tim Buley explained this argument:

    There is also a much more straightforward argument about the residence test, which is simply that it is not within the statutory power, because the statutory power is to add categories of work that are or are not included within legal aid ... It is not clear to me … that that does not contemplate excluding people by a class of person rather than by reference to the kind of legal services that they are seeking, so I think there is a real issue there as well.[45]

53. The Government does not accept these arguments, as it considers that the necessary powers are contained within LASPO.[46] The Lord Chancellor told us that he had received very clear guidance on this point:

    All I can tell you is that the guidance of First Treasury Counsel is very clear that the LASPO Act gives me the power to do this, so whether or not it was debated at the time I cannot control, but I can assure you that the legal advice I have is very clear that this is absolutely within the powers set out in LASPO.[47]

54. In contrast, Martha Spurrier's evidence to us was that, whilst there were five potential sections of the LASPO Act 2012 that could allow retrospective amendment, she did not consider that they would allow for an amendment on the basis of a class of person:

    Section 149 is a Henry VIII clause, but it is simply intended for transitional measures for tidying up. Section 2 does not appear to allow the Lord Chancellor to make any changes to the class of person, only to the services that are provided. The same is the case under Section 9. Sections 11 and 41 have similar tidying-up provisions to Section 149, so we do not think that there is anything expressed in the primary legislation that would allow these fundamental rights to be transgressed by a statutory instrument.

55. The Administrative Law Bar Association agreed, and suggested that the proposals were ultra vires, for the following reasons:

    a) Firstly, nothing in the Act permits the Lord Chancellor to exclude altogether classes of persons from eligibility for legal aid, whether defined by nationality, residence or any other characteristic. Section 1 provides that he "must secure that legal aid is made available"[…] and while, by section 2 he may make "different arrangements […] in relation to (c) different classes of person" this is with a view to carrying out his primary duty to secure legal aid. He may not make arrangements in order to deny legal aid. Section 11 permits the Lord Chancellor to set criteria for the grant of legal aid but the factors to which he may have regard do not include nationality or residence and nothing in this section empowers him to make a blanket rule excluding a class of people that would otherwise be eligible.

    b) Secondly the proposed rule would be inconsistent with other parts of the Act where Parliament has already decided that funding should be available for cases that would inevitably be excluded if there was a residence test.[48]

56. We considered carefully whether a residence test can be introduced by secondary legislation under the LASPO Act or requires primary legislation. Our starting point in this analysis is that the effect of the residence test is to take away the right of effective access to court for many of those who cannot demonstrate the required length of lawful residence. The right of effective access to court is a right which is recognised by the common law to be fundamental, and for that reason the common law principle of legality applies: clear statutory authority is required, and a generally worded order-making power cannot be relied upon[49].

57. We have considered the wording of the order-making power in section 9 of the LASPO Act, and in particular section 9(2), and we can see the force in the argument that the terms "(b) vary or omit services described in [Part 1 of Schedule 1]", do not necessarily lend themselves to an interpretation whereby a distinction is made on the basis of an applicant's characteristic, namely whether they have the necessary length of lawful residence. The term "services" is used within the Act to describe the subject-matter of a dispute that may attract funding, and the type of activities that may be provided for different levels of funding. In addition, we are unaware of any debate during the passage of this Act where the possibility of this order making power being used to exclude categories of person, as opposed to services, or to introduce a residence test, was discussed.

58. On the other hand, we recognise that section 41 of the Act expressly provides that orders and regulation made under Part 1 of the Act "may make different provision for different cases"[50] and "may, in particular, make provision by reference to [...] services provided for a particular class of individual."[51]

59. We do not necessarily regard s. 41 as a definitive answer to the requirement that there be clear statutory authority for regulations which have such a serious impact on a common law right. The vires of any regulations that are introduced fall within the remit of the Joint Committee on Statutory Instruments, and we will draw their attention to our Report. If the secondary legislation to bring the residence test into force is laid, they may wish to give close scrutiny to these issues. However, the Lord Chancellor told us in his evidence that the purpose of the residence test was to bring legal aid into line with other areas of Government policy where entitlement to certain benefits is subject to a residence test. We note that some of these are currently before Parliament in the Immigration Bill. Given the serious implications of the residence test for the right of effective access to court, and the desirability of full parliamentary scrutiny of the details of such a test, including the ability to amend the detail of the scheme, we believe such a test should be introduced by way of primary legislation, rather than under a generally worded power to alter the scope of legal aid by "omitting services".

The rights engaged

60. Responding to the Government's consultation paper, Transforming Legal Aid: delivering a more credible and efficient system,[52] Michael Fordham QC and others questioned the legality of the residence test, and suggested that it could not be objectively justified:

    In our opinion, such a measure would be unlawful. In short, that is because (a) it would attract a justification test and (b) it would not survive scrutiny under such a test. It would not survive scrutiny given its nature and impact, as well as the paucity of the reasoning put forward, and the absence of anything approaching a proper assessment of its implications. The absence of any proper assessment of impacts is likely itself to be fatal for the purposes of the Equality Act 2010, were the decision to adopt such an exclusion challenged on that basis. Ultimately, the exclusion would itself fail a justification test because it denies practical and effective access to justice to what are essentially a group of 'foreigners', each of whom have (by definition) a meritorious case and who do not have the means to litigate without the benefit of legal aid.[53]

61. Alison Harvey, from the Immigration Law Practitioners Association, highlighted that many of the people who will fail the proposed residence test will also, as a result of not having lawful residence, have a lesser set of rights and entitlements. She concluded that what is at issue was an inability "to enforce that small rump of rights" that they did have.[54] Tim Buley told us that the residence test was "plainly discriminatory".[55]

62. The residence test proposal clearly engages both common law and Article 6 access to justice rights. Those rights are not absolute, and are capable of restrictions which serve a legitimate aim and are both necessary and proportionate in the pursuit of that aim. As the Government accepts the test will be easier for UK citizens to satisfy than other nationals, we consider that Article 14, read together with Article 6 is engaged; thus the test falls within the ground of "national origin" as specified in Article 14, and further, following the case of Bah v United Kingdom,[56] immigration status can be considered as "other status" for the purposes of Article 14.

63. Treating people differently in relation to their access to publicly funded legal advice on the basis of their length of lawful residence requires objective and reasonable justification in order to be compatible with Article 14 ECHR in conjunction with the right of effective access to court in Article 6(1). The difference of treatment must serve a legitimate aim and, be both necessary and proportionate.

Legitimate aim

64. The Government stated in its human rights memorandum that the overarching purpose of its legal aid proposals is "to target limited public resources at cases that most justify it, ensuring that the public can have confidence in the legal aid scheme." In the case of the residence test proposal, the Government's stated aim is slightly more specific: to ensure that limited public resources, at a time of austerity, are targeted appropriately at people with a strong connection with the UK. The measure will save money because it will lead to fewer people being eligible for legal aid, and, the Government says, will be fairer to taxpayers by prioritising the use of scarce resources to benefit those with a strong connection to the UK over those without such a strong connection.

65. We explored these issues with the Lord Chancellor, who told us that he considered that the rationale for the proposal was "straightforward":

    Except in those cases, which we will come back to in a moment, where there is an acute need related to vulnerability, I do not believe that people should be able to come to this country and simply access our legal aid system within a few weeks. I think they should have been here for a period of time, to be settled here, to be resident here and ideally to be making a contribution here, and this measure is designed to secure that.

    You asked a question about the savings, and, indeed, about our estimate of the number of people affected. The truth is we do not know, because we do not currently retain information about nationality and the right to access our legal aid system. We could discover it is not a large amount; we could discover it is quite a large amount. To me, it is a point of principle, and it is a point of principle that applies in a number of areas of public service: I do not think you should be able to come to this country and, except in cases of significant emergency, be able to access legal aid system without having been here for a time and contributed to this country. [57]

66. Dr Nick Armstrong had told us that the use of a cost argument as justification was very difficult to make out.[58] We asked the Lord Chancellor to explain to us the objective and rational justification for the proposals, and his views as to any connection between the stated aim of saving money and the length of the lawful residence. He told us:

    We do not know for certain the financial scale. As far as I am concerned, this is as much about giving confidence in the system as anything else. I am treating people differently because they are from this country and established in this country, or they are not. I personally do not believe that we either should or can afford to, as a nation, simply provide access to public resource to people who have arrived in the country and have been here a very short period of time.

    If you come to this country you should come to make a contribution before you can realistically expect to get something back.

    Baroness O'Loan: Just to follow that up, you say that you have to have been here some time to have made a contribution; how do you quantify the making of the contribution if that is the test?

    Chris Grayling: The test we have set is the 12-month residency. What I would hope is that that, generally speaking, will mean people have come, worked in this country and made a financial contribution; they will have paid taxes, and will then be entitled to get something back for doing so. [59]

67. In relation to the concept of contribution, we raised with the Lord Chancellor the evidence we had received in relation to groups such as retired military veterans who are not resident in the UK, or individuals who provide assistance to the Armed Forces abroad. His answers appeared to emphasise the importance of working in and paying taxes in the United Kingdom as an important factor in his definition of "contribution".[60]

68. We accept that the Government's rationale for the proposed residence test constitutes a legitimate aim for the purposes of both limiting the right of access to court and treating differently those who do not have the required length of lawful residence in the UK. We recognise that a residence test is used in other contexts, such as health, to regulate access to services and other public benefits. The European Court of Human Rights has also accepted that it was a legitimate aim for Belgium to seek to keep public money for those who have a certain degree of attachment to Belgium by defining the conditions of entitlement to legal aid so as to confine it to people lawfully resident in Belgium.[61] We therefore conclude that a residence test is not incompatible per se with the right of effective access to court or the right not to be discriminated against in the enjoyment of that right.

69. However, even measures which serve a legitimate aim are capable of giving rise to breaches of those rights in practice if they are not sufficiently carefully drawn to ensure that they only have a proportionate impact, and contain sufficient safeguards against the risk of such breaches occurring.

70. The ECtHR in Anakomba Yula v Belgium, for example,[62] accepted the Belgian Government's argument that the conditions of entitlement to legal aid pursued a legitimate aim, but found that Belgium had failed in its obligations to provide for the right of access to a court, in a manner that was compatible with the requirements of Article 6(1) taken with Article 14 (the prohibition of discrimination). The Belgian domestic courts considered that the difference of treatment of the applicant based on her residence status was justified and reasonable in that the lawful residence test required a "minimal tangible connection" with Belgium. However, the ECtHR held that, given the serious issues related to family law before the domestic courts (the applicant was seeking legal aid to help her in proceedings concerning the paternity of her child), there ought to have been particularly compelling reasons to justify the difference in treatment between individuals with a residence permit and those without.

71. We therefore turn to the proportionality of the residence test: is it drawn in a way which avoids disproportionate consequences for particular groups?


72. We welcome the fact that the Government introduced further exceptions to the residence test after its initial consultation, in recognition of the potential practical consequences for particular vulnerable groups. Such exceptions from the test make it less likely that it will lead to breaches in practice. However, we received a large number of examples of the types of case where witnesses argued that access to justice and non-discrimination rights would be likely to be breached.


73. Asylum seekers would be exempted from the residence test.[63] In Next Steps, the Government responded to concerns that asylum seekers would have to wait 12 months after being granted leave to remain before being able to prove 12 months lawful residence, by indicating that the 12 month period would start when the asylum claim was submitted.[64] The Government also stated that an asylum seeker would be able to get legal aid funding to help make a claim for asylum, including a fresh claim. If the Home Office did not agree that a further submission amounts to a fresh claim, then legal aid would be available in respect of a judicial review of that decision (subject to means and merits).[65] The Immigration Law Practitioners Association, Asylum Aid and others suggested that further clarification from the Government as to the scope of these exemptions would be helpful.

74. The evidence to this inquiry raised concerns over refugees who are legally resident in the UK, after being granted leave to remain. Refugees have to have been resident for 12 months, following the submission of their asylum claim, to satisfy the residence test. Until then they are unable to access civil legal aid, for example in relation to housing claims. We were told that this was "counter-intuitive"[66] as the period after a grant of leave to remain is precisely the time when these individuals would be most in need of services and, without legal advice, they may be unable to enforce their rights to services. Some of those who submitted evidence drew our attention to Article 16 of the 1951 Refugee Convention,[67] which states that:

    2. A refugee shall enjoy in the Contracting State in which he has habitual residence the same treatment as a national in matters pertaining to access to the courts, including legal assistance.

Some witnesses therefore argued that the Government was acting contrary to the Refugee Convention by failing to provide an exemption for refugees.[68]

75. Various matters relating to asylum seekers remain unclear, and we invite the Government to consider the evidence we received and confirm in particular, whether given that legal aid will be available to prepare and submit a fresh claim for asylum, that exemption will extend to all other areas of civil legal aid, and not solely to work completed on the fresh claim. We also invite the Government to clarify, in relation to asylum seekers who have submitted fresh claims for asylum which are then accepted, when the 12 month period of lawful residence will be deemed to commence, whether on the date the initial application is submitted, the date the fresh claim is submitted, or the date the fresh claim is accepted.

Gateway Protection Programme

76. The Refugee Council raised concern for refugees resettled under the Gateway Protection Programme.[69] These individuals are eligible for settlement immediately on entry to the UK. However, under the proposed residence test they would not be eligible for civil legal aid funding until they had been resident in the country for 12 months.

77. We wrote to the Lord Chancellor asking for clarification in relation to this group of people. He told us that because individuals within the Gateway Programme are applying for resettlement, not asylum,[70] they would be required to satisfy the residence test in the same way as any other immigrant.[71] He noted that this group of refugees receives a twelve month package of intensive support.

78. We remain concerned that refugees may be unable to access civil legal aid during their first few months of lawful residence in the UK. This is particularly worrying as this is the time that many refugees may need assistance in securing services they are entitled to, which could include the twelve month package of intensive support that the Lord Chancellor mentioned in relation to Gateway Protection Programme refugees. We recommend that any proposal excludes refugees as well as asylum seekers, in order to ensure that the UK's international obligations are met.


79. The Government's proposals do not provide for a general exception from the residence test for children, apart from children under the age of 12 months (who will still need to prove lawful residence at the time of the application[72]). Under the exceptions outlined in Next Steps, children will also be exempt if they fulfil any of the specified exceptions: they are a member of the immediate family of serving military personnel, they are asylum seekers; or they fall within the parameter of excluded detention cases; certain trafficking cases; certain domestic violence or forced marriage cases; certain protection of children cases; or they are under the jurisdiction of the Special Immigration Appeals Commission.

80. The Government acknowledged in Next Steps that many consultation responses raised concerns regarding how this test could impact children.[73] We also received many submissions with concerns regarding children. The Children's Society told us they had particular concerns about the impact of the proposal on the following groups of children:

·  Unaccompanied migrant children and care leavers

·  Refused asylum-seeking children, young people and families who cannot return to their country of origin

·  Children who have been abandoned by their parents or carers

·  Age-disputed young people including those in immigration detention

·  Disabled migrant children and those with special educational needs

·  Young victims of trafficking and exploitation who do not access the National Referral Mechanism

·  Parents and children who are victims of domestic violence but cannot prove abuse and do not have documentation

·  Undocumented migrant children and young people more generally as those who are already at risk of homelessness, destitution, exploitation and social exclusion because of their irregular immigration status

·  Children, young people and families who have lawful residence (including refugee status, discretionary leave or humanitarian protection) who have been in the UK for less than 12 months but have no financial means.

81. We reported on the subject of legal aid and representation for unaccompanied migrant children and young people in our First Report of this Session and stressed the importance of the Government paying particular attention to the impact of withdrawing legal aid from non-asylum immigration cases involving unaccompanied migrant children. We also said the Government "should give serious consideration [...] to the cost benefit case for providing legal aid to all unaccompanied migrant children involved in immigration proceedings." The Government has not yet responded to this Report.[74]

82. The four topics below illustrate the problems faced by children in satisfying the residence test: incompatibility with the UNCRC; children subject to local authority care under sections 17 and 20 of the Children Act 1989; undocumented children; and EU and international agreement cases.


83. A number of organisations expressed concern that the Government had not considered the proposal's compatibility with children's rights under the UN Convention on the Rights of the Child (UNCRC).[75] Article 2 of that Convention states:

    1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

    2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members.

84. Some of these organisations who gave evidence to us argued further that the proposal is in contradiction to the Guidelines of the Committee of Ministers of the Council of Europe on child friendly justice,[76] and the Government's own guidance from the Home Office's 'Every Child Matters' which states that "Every child matters even if they are subject to Immigration Control".[77]

Section 17 and 20 Children Act 1989 cases

85. The Children's Society suggested that the current exemption for children was drawn too narrowly:

    The changes in the government's response relating to the 'protection of children' cases are very limited. Although some cases will be protected - such as Section 31 care orders or Section 47 investigations (Children Act 1989) - most cases relating to the care, supervision and protection of children will not. For example, any 'child in need' cases (Section 17) relating to the additional care needs of a disabled child or support needs for homeless families, will not be covered. Equally cases involving unaccompanied children who are homeless and need appropriate accommodation, support, care and supervision (Section 20) will not be protected.

In oral evidence, Ilona Pinter of the Children's Society told us that, at a time of budget restrictions, these children, and in particular unaccompanied 16 and 17 year-olds, were particularly in need of legal representation to gain access to care and services, and often to prove their age to local authorities where this is disputed. She told us that a recent "Newsnight" investigation had found that:

    16,000 children, 16 and 17 year-olds, had applied for support from local authorities for homelessness protection. In 148 local authorities, they were unlawfully housed in bed and breakfast accommodation. We deal with a lot of young people in similar situations. In respect of the residence test, because a child might not be able to prove their documentation or because they would not in fact meet the residence test, they would not be able to get the vital support from a community care solicitor to be able to challenge those sorts of decisions.[78]

86. As Dr Nick Armstrong explained to us, and as shown in the examples provided by the Children's Society, this type of case could include children who have fled from the family home as a result of domestic abuse, or children who, for whatever reason, are at risk of being made street homeless.[79]
Example provided by Karen May of John Ford Solicitors:

There were three siblings who were granted public funding certificates for judicial review proceedings to be issued. The three children would be homeless on the street if it were not for legal aid. The children's mother was not permitted to have access to public funds and had been staying with a friend. That arrangement broke down and three children who had been born in the UK (with the older two attending schools in London), and being well established within the communities, were going to be street homeless.

Careful and specialist advice was given regarding the obligations under section 17 of the Children Act 1989, that the local authority owed to these children. There were clear grounds for judicial review proceedings faced with the local authority's refusal to act to provide accommodation for these children. Very careful negotiations were entered into and detailed correspondence. In addition, Counsel was instructed and grounds for judicial review proceedings were prepared. However, on the eve of proceedings being about to be issued the local authority recognised their legal obligations and placed the children in accommodation with their mother.

Undocumented children

87. Children who are unable to produce documentation to prove their residency will not be able to satisfy the proposed residence test. Many witnesses criticised this and argued that there should be an exception for undocumented children.[80] Witnesses cited a study which indicated there were 120,000 undocumented children living in the UK of whom 65,000 were born to undocumented migrant parents,[81] and argued that these children were a vulnerable group which should be excluded from the residence test.

EU and international agreement cases

88. During the Commons Public Bill Committee on the LASPO Act 2012, the then Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly MP) stated:

    We initially proposed that legal aid would remain to secure the return of a child who had been abducted overseas. After listening to consultation responses, however, we have decided to extend it to cover prevention of abduction in such cases for example for a prohibited steps order. That makes sense on the basis of the complexity, the cost and the consequent practical disadvantages involved in dealing with a foreign jurisdiction.[82]

However, witnesses have raised concern with us that paragraph 17 of Part 1, Schedule 1 of the LASPO Act has not been included within the list of exemptions and therefore litigants in EU and International agreements concerning children's cases will have to satisfy the residence test.

89. Witnesses specifically raised concerns over child abduction cases that relate to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.[83] The Convention's aim is to ensure a quick return to their country of habitual residence for those children who are being wrongfully held in another country. Witnesses argued that the proposal could affect child abduction cases for example, cases where a child is wrongfully brought to or retained in the UK, where the non-UK resident parent will be unable to meet the residence test, or where a child is wrongfully removed from the UK and the UK based parent cannot, for whatever reason, meet the residence test. These cases may require urgent advice and representation.
Case study of a Hague Convention case from Bindmans LLP:

We represented the father in child abduction proceedings. The child lived with her father in Latvia and he was her primary carer. The mother lived in the UK. There had been agreement that the child would visit the mother in the UK for a holiday, but the mother retained the child in the UK after the end of the holiday and refused to return the child to the father's care. The application was made under the Hague Convention on Child Abduction 1980, the purpose of which is to ensure that children are returned swiftly to the country where they are habitually resident when abducted. Our commitment to the Hague Convention provides the left behind parent with public funding to bring an application for the return of their child. The father did not speak English and did not have funds to attend court in England. The proposed residence test would mean that the father would not have been entitled to public funding and would therefore have been unable to afford representation in court proceedings for the return of his child to their home in which the child had been settled and happy for some time. In this case, we were able to agree a voluntary return of the child with the mother and the case was concluded within the 6 week timeframe expected of Hague Convention cases. [...] Had the father not been able to instruct specialist child abduction lawyers with public funding, he may not have been able to bring his application at all due to lack of funds to attend court or lack of language skills to make representations to court as a litigant in person, and if he did do so this would have ultimately taken up much more court time.

Conclusions in relation to children and the residence test

90. The Lord Chancellor responded to the concerns of our witnesses by explaining that the modified proposals make concessions for children: babies less than 12 months of age and some cases related relating to protection of children would no longer have to satisfy the proposed residence test.[84] The Lord Chancellor also said that for certain cases the exceptional funding route existed to ensure vulnerable individuals remain protected.

91. We welcome the Government's modifications to the residence test which exempts children under 12 months of age (who are lawfully resident at the point of application) as this group could clearly not have met the 12 month requirement of the residence test.

92. However, we do not agree that the Government has considered all groups of children who could be adversely affected by this test, and we note that no Child Impact Assessment has been produced. Such groups of children include children unable to provide documentation of residence and those who need help to gain access to accommodation and services. There is a particular problem in terms of the complexity and urgency of EU and international agreement cases, acknowledged during the passage of the LASPO Bill, but which have not been made an exception to the residence test. We are concerned that the Government has not given full consideration to its obligations under the second article of the UNCRC.

93. For reasons we explain below, we do not consider that the Government's argument that cases can always apply for exceptional funding is sufficient to meet UNCRC obligations or the Government's access to justice obligations.

94. We are sure that the Government does not intend vulnerable children to be left without legal representation. The proposals give little consideration to the access to justice problems that the proposal specifically creates in relation to children, such as the potential complexity and urgency of the cases for which children would need advice and representation, or in some cases, the need to find a litigation friend to assist the child with their proceedings because they have become separated from their families.

95. The Lord Chancellor's justification for the policy, namely contribution, in particular through the payment of tax, cannot apply in relation to children. Nor can it be said that children have chosen to make their home in the United Kingdom. We do not consider that the removal of legal aid from vulnerable children can be justified and therefore we recommend that the Government extend the exceptions further by excluding all children from having to satisfy the residence test.


96. The Government's proposal makes certain exceptions for detention cases, paragraphs 5, 20, 25, 26 and 27 (and challenges to the lawfulness of detention by way of judicial review under paragraph 19) of Part 1 of Schedule 1 to the LASPO Act.[85] Dr Nick Armstrong told us that these exceptions were narrow:

    For example, you get a detention case that is now exempt from the residence test, but only if you are seeking to get out of detention. If you are held in very poor conditions or sexually assaulted while in detention, as was recently in a newspaper, or if you are a child and should not be in detention and need to judicially review a local authority that has wrongly assessed you as being an adult, none of that is covered. Trafficking victims may have all of those problems and be in detention.[86]

97. The Immigration Law Practioners Association (ILPA) also highlighted the omission of paragraph 21 of Part 1 of Schedule 1 of the LASPO Act (claims for damages resulting from abuse by a public authority of its position or powers) from the list of proposed exemptions. Witnesses raised strong concerns particularly in the light of four cases, in the last two years, that found the mistreatment of immigration detainees to breach Article 3.[87] Media reports also give examples of alleged abuse and ill-treatment, including at the Yarls Wood removal centre.[88]
R (on the application of S) v The Secretary of State for the Home Department[89]

The circumstances of S's detention passed the high threshold required for a violation of Article 3 and amounted in inhumane or degrading treatment. I find that there here was a breach of both the negative and positive aspects of Article 3.

98. The Lord Chancellor argued that there was a robust complaints procedure within the detention system. He further argued that not all cases could be funded and that decisions had to be made as to which received funding and which did not, and that treatment cases should be dealt with by the internal prisoner complaints system rather than the courts.[90] Asked whether an individual entitled to claim damages would be able to use legal aid funding to do so, the Lord Chancellor responded:

    I have little doubt in a case like that, that if there was a gross and blatant example of abuse, there would be no shortage of lawyers willing to take the case on a no win, no fee basis.[91]

99. We look at the effectiveness of the internal prisoner complaints system in Chapter 5 of this Report. We do not believe that the Lord Chancellor has given due consideration to the human rights implications in cases where the high threshold that is required to prove a breach of Article 3 is capable of being met, or indeed to the seriousness of the abuses the state can and has been accused of.

100. We note that abuse in detention cases is likely to engage article 13 rights to an effective remedy before a national authority. The ECtHR held in Silver v United Kingdom[92] that the possibility of making a complaint to the Board of Visitors or Parliamentary Ombudsman was not an effective remedy because the Board could not enforce its decisions and the Ombudsman depended on voluntary compliance with a report presented to Parliament; we note that the Prison and Probation Ombudsman can similarly only make recommendations. Furthermore, in Chahal v United Kingdom[93] the Court held, that where there was a real risk of inhuman treatment contrary to article 3, article 13 required an independent scrutiny of the claim. Given the number of cases where the Court has recently concluded that article 3 rights have been breached, this is something we expect the Government to be aware of.

101. We acknowledge the Government's argument that treatment within detention should be dealt with by the internal prisons complaints system. However, we do not accept that individuals who have suffered abuse whilst being detained by the State, so as to breach article 3, should not be eligible for legal aid in order to pursue compensation. We consider that this bar could affect an individual's article 13 right to an effective remedy from a national authority. We specifically recommend that the Government excludes paragraph 21 of Part 1 of Schedule 1 to the LASPO Act for detention cases from any proposed residence test.


102. Several witnesses expressed concern for individuals who may struggle to provide documents to satisfy the residence test, particularly in order to prove 12 months residence.[94] Concerns were also raised as to the knowledge required in order to determine whether an individual is lawfully resident, which lawyers who do not practice in immigration law are unlikely to have.[95] The two groups which we have looked at are (i) individuals who have a right to settle permanently and of whom the Home Office does not have a record, and (ii) victims of domestic abuse.

Right to permanent settlement

103. A core element of the residence test is the belief that the majority of citizens will be able to demonstrate lawful residence. Whilst we do not dispute this, we have received evidence that highlights cases where individuals are unable to produce documentation. The Islington Law Centre raised concern for individuals who entered the UK prior to the Immigration Act 1971 and have a right to settle permanently in the UK; some of these individuals no longer possess documents, such as a passport, to prove their permanent settlement rights.

104. The Lord Chancellor suggested that individuals who are unable to prove residency should be seeking immediately to rectify their lack of documentation with the Home Office, as a lack of ability to produce documentation to prove residency has wider consequences than eligibility for civil legal aid funding. He also told us that individuals who have lived here lawfully for sometime should not have difficult proving their residence if they pay rent or bills.[96]

105. However, we were told by groups representing some of these individuals that the Home Office has informed individuals who entered the country prior to the Immigration Act 1971 that they do not keep records of foreign nationals granted historic settlement, as they claim that they are obliged to destroy papers pursuant to the Data Protection Act 1998.[97] Islington Law Centre explained that many of their clients would be unable to satisfy the residence test, despite having been lawfully resident for many decades:

    The proposals do not exclude British people that meet the test, but many in our communities do not travel and do not have a passport. A birth certificate does not confer nationality. Obtaining a passport is expensive and it is reasonable to envisage a likely scenario of a family requiring homelessness assistance in circumstances where no- one in that family has a passport. The proposals will seriously prejudice the most economically and socially disadvantaged British people. It will also prejudice elderly people from the Commonwealth and elsewhere who have lived, worked and voted in the UK for most of their lives, in circumstances where it becomes apparent that they have lost their original passport, which included an immigration stamp confirming they were entitled to settle here when they entered the UK or they entered prior to the coming into force of the 1971 Act, which means they are settled automatically but do not have the evidence for it. At ILC we have seen many such cases concerning people who came to the UK in the two or three post- war decades, as family members of Caribbean parents who were invited and came to the after the war. This lost generation of post- war Commonwealth citizens increasingly faces huge prejudices in accessing employment, retirement, health and other facilities.

106. They also told us of a recent freedom of information request submitted by Lambeth Law Centre, which confirmed that, for cases where the Home Office does not retain records of settlement rights granted many years ago, "the Home Office writes to applicants and MPs to advise seeking legally aided assistance". The problem of the Home Office losing identity documents was also raised with us by a number of witnesses.[98]

Victims of domestic abuse

107. The Government's consultation response detailed an exception for victims of domestic violence and forced marriage. This was seen as a welcome step, as many consultation responses raised concern for these individuals, although Women's Aid told us that it considered the residence test to be in breach of access to justice rights guaranteed by the Convention to Eliminate All Forms of Discrimination Against Women. Many witnesses told us that it was unrealistic and unfair to expect individuals fleeing domestic abuse to be able to access or retrieve their residency documents when fleeing their home.[99]

108. Witnesses argued that the Government's list of required evidence would exclude many women who have suffered domestic abuse.[100] They said that women who are victims of domestic abuse often do not report the abuse, which is one of the ways of providing evidence of abuse. They also argued that women using the legal aid services are unfamiliar with UK law and procedures and have limited support networks. They told us that many of these women rely on legal aid advice although they may not be able to satisfy the proposed residence test.

109. Other witnesses criticised the narrowness of the exception for domestic abuse as it only applies to certain matters such as applications for indefinite leave to remain under the Domestic Violence Rule in immigration law.[101] They argued that domestic violence cases were complex and overlap with other issues that were not excluded from the residence test.
Bindmans LLP gives a case study of a domestic violence case:

We acted for FC, a Bolivian national, who was an overstayer in the UK. She lived with her husband and two young children aged 2 and 4. FC was subjected to serious physical and sexual domestic violence from her husband. She was assaulted and repeatedly raped by him in front of their two sons. FC tried on many occasions to flee the family home but was repeatedly refused assistance by the local authority. She always had to return to the family home and face further violence as she had no recourse to public funds. She sought advice from a local charity, which put her in touch with Bindmans. The local authority finally agreed to assist FC and her two sons under of the Children Act following receipt of a letter before action. This case would fail the residence test because community care cases of this kind are not subject to any exemption

110. The Lord Chancellor said that the Government would make an exception for "cases of significant vulnerability [...] related to domestic violence".[102] However, he went on to say that in other cases individuals must have demonstrated a strong connection to the UK by being established here to be eligible for civil legal aid funding.

111. We accept as a general matter of common sense the Lord Chancellor's answer that individuals who lack documentation should seek to rectify this with the Home Office. However, we are clear that there have been and will continue to be cases where individuals cannot produce the required documentation to prove their residence in the time necessary to allow the legal process to be of use to them. We are also concerned by the different examples we were provided with by our witnesses where documents have been lost by the Home Office, or indeed, for individuals who entered the country prior to the Immigration Act 1971, where such records have been destroyed by the Home Office. We ask the Government in its response to this Report to set out what the practice has been in the Home Office with regards to such records. We believe that the Government has not given sufficient thought to the difficulties some individuals may have in proving lawful residence, nor made a wide enough exemption to the test to ensure that some citizens are not prevented from accessing civil legal aid funding and we recommend that the Government look at this again.

112. We welcome the Government's exemptions in certain cases for victims of domestic violence, although we remain concerned about the impact of these proposals on victims of domestic abuse and their ability to access legal aid funding in order to gain practical and effective access to justice for themselves, and in many cases, for their families. This group of people is likely to experience practical problems in proving residence, and in any event may need to satisfy a further test to show evidence of domestic abuse in order to gain access to certain forms of civil legal aid funding in family cases, and we would ask the Government to review whether the exemptions should be extended to meet these concerns.


113. The Government's consultation response made clear its intention to provide exceptions to the residence test for those persons who are 'particularly vulnerable'.[103] The Government also indicated that, in further limited circumstances, applicants for civil legal aid funding would not have to satisfy the residence test.[104] We are surprised that these considerations do not extend to protected persons.

114. Mr Alastair Pitblado, the Official Solicitor to the Senior Courts, told us about the relatively small group of individuals that he represents who could be affected by the residence test and who are not covered by one of the specific exceptions mentioned above. These are individuals who are deemed by the Court to lack specific capacity, within the meaning of the Mental Capacity Act 2005, to conduct their own affairs including litigation. These individuals are a protected party ('P') for the purposes of the Court of Protection.

115. The Official Solicitor said that these individuals are, as a result of their lack of capacity, much less able to provide evidence to satisfy the residence test without assistance. In addition, individuals who lack this specific mental capacity are prevented, under the Rules of Court, from litigating in person, since the rules of court prohibit the court continuing if the individual litigating does not have the capacity to conduct proceedings. The Official Solicitor describes this situation as an "elephant in the room",[105] and he told us that he had responded to the Government's initial consultation, raising these specific concerns for protected parties.

116. The Official Solicitor acts as a last resort litigation friend for individuals who are a protected party and have no other means of litigating. For these individuals he is required to make "his appointment as litigation friend conditional on the costs of obtaining or providing legal services being secured either from the person's own funds or from external sources".[106] The external sources include the Legal Aid Agency. The Official Solicitor argued that "where a party lacking litigation capacity is not in a position to meet the costs of legal representation [...] or a CFA arrangement cannot be entered into, or an undertaking to meet the costs is not forthcoming from the other side, legal aid is the only way forward".[107]

117. The Official Solicitor gave the following case study:

    Mr IS is aged 60, with a heart condition, is registered blind and is diagnosed with vascular dementia, which is progressive. IS is unable to provide very much factual information to his solicitor but from enquiries that have been made his solicitor has ascertained that he has been resident in the UK for some 12 years and does not appear to have made an application for leave to remain. IS appears to have worked as a tailor prior to going blind but now exists on limited handouts from a family member and begging. He is supported by a charity to access his medical appointments. IS's lack of immigration status means that he is not entitled to benefits. A different charity has now agreed to consider assisting him to regularise his immigration status. As IS has become unwell he has become unable to manage his day to day life and is being evicted from his privately rented accommodation; he will therefore shortly be homeless, without alternative accommodation or the possibility of obtaining such. Currently his legal advisors, through the Official Solicitor acting as proposed litigation friend are seeking to obtain care and support for him; if his solicitor is unable to do so by way of negotiation then he will challenge the local authority's position by way of Judicial Review. If the residence test had applied IS would not have had any legal representation in either the possession proceedings nor for the purpose of attempting to access community care support and provision. It was his solicitor, instructed by the Official Solicitor, who identified a charity to help him in trying to regularise his immigration status; it is unlikely he would have been able to do so by himself. Given his limited capacity it is likely he would not have been able to access any real help and given the time it takes to glean any idea of his position it would be very unlikely that he would have progressed to a point where he could have convinced a solicitor to seek exceptional funding to pursue these issues for him.
    Mackintosh Law provided a case study of a man who would no longer be eligible for legal aid under a proposed residence test:

    We acted for 'P' in a Court of Protection case. P's family had come from Pakistan to the UK. P had learning disabilities. He lived with his family. He attended a day centre. Staff were concerned because when he arrived he started to rummage in the bins and looking for food because he had not been fed. They also noticed that he had evidence of severe bruising. It was discovered that he was being kept in a concrete shed in the yard of the family home, like a dog, and being regularly beaten by the family. He was being starved. He wanted to leave. We represented him in Court to remove him from his family home into a supported living project where he could be fed and was safe. The application was vigorously contested by his family who wanted to keep him at home because they would have access to his benefits. The Judge decided that he should not be returned to the family.

    It is entirely possible that our client would not have met the residence test.

118. The Government pointed out that individuals who arrive in this country, even if they did not appear to have mental capacity to represent themselves, will have to satisfy the residence test before being able to apply for civil legal aid funding. The Lord Chancellor cited cost restraints as the justification behind this decision:

    I am afraid that the reality is that, at a time of straitened finances, we cannot simply offer public services to anybody who arrives in the country and requires them immediately.[108]

119. This response does not appear our address the concerns we raised regarding protected parties. We wrote to the Government urgently seeking clarification as to whether individuals who lack specific mental capacity, under the Mental Capacity Act 2005, and who may not be able to prove lawful residence, are covered by this exception to the residence test. This is likely to concern a very small number of individuals.[109]

120. In light of the evidence we had received, we asked the Lord Chancellor to clarify whether individuals who lack mental capacity will be exempt from the residence test. He told us that he had considered these arguments carefully as part of the consultation process, particularly in terms of the difficulties for some individuals in providing documentary evidence of residence.

121. The Lord Chancellor noted that individuals who lack capacity must nonetheless pass a funding means test. The Official Solicitor's evidence on this point was that this was already an area of some difficulty, particularly where there was no person with lawful authority to manage the individual's financial affairs:

    There are already cases where the incapacitated person is ineligible for legal aid because their sole asset is their home and the equity exceeds the capital disregard, but the reality is that the equity is practically unavailable and their income is unable to fund legal services. It is unclear how the Government expects such a person to utilise their capital to fund litigation or otherwise to take steps to secure alternate funding for legal representation. I would also point out that there may be no person with lawful authority to manage that incapacitated person's financial affairs, that such persons are often at risk of, or have in fact suffered, financial abuse, and because of their impaired mental capacity will be particularly vulnerable in the context of alternate funding arrangements.[110]

122. We are concerned about access to legal aid for the small group of individuals who are protected parties pursuant to the Mental Capacity Act 2005. This group, while small, has an obvious need for legal representation; given that its members are prohibited from litigating in person, any right of access to justice cannot be practically and effectively exercised if (subject to means and merits) they are denied legal aid. We do not think that the residence test can be justified in its application to this group.

123. We do not accept the Lord Chancellor's response on this issue. The response does not take sufficient account of the obstacles already faced by litigants lacking mental capacity, as explained by the Official Solicitor in his evidence. If protected parties fail the residence test, they are prohibited from appearing before the Court as a litigant in person. To refuse funding to a protected party would mean that they could not litigate, there would be no need to assess whether their access was practical or effective, as they would have no access to the court whatsoever.

124. We do not consider that the exceptional funding scheme, even if it were operating correctly (a question we consider below), could appropriately satisfy the needs of those who are protected parties pursuant to the Mental Capacity Act 2005 because, as the Official Solicitor made clear in his evidence to us, the discretionary nature of the scheme is not a sufficient safeguard to meet the concern about the position of those with impaired mental capacity, who cannot gain access to justice in any other way.


125. Paragraph 125 of Next Steps states that victims of trafficking will be exempt from the residence test for cases under paragraph 32 of Part 1 of Schedule 1 to the LASPO Act. Some witnesses were concerned that this exemption was narrow and only included cases that are immigration claims, certain employment claims and damages claims connected with the trafficking (against the trafficker).[111] They were concerned that this meant that cases to establish whether an individual is a victim of trafficking (with the attendant rights such a status provides), or cases which challenge failures to prosecute, will not be exempt from the residence test.

126. Other witnesses argued that legal representation was required in all cases of trafficking victims in order for the UK to comply with Article 12(2) of the EU Directive 2011/36/EU on Preventing and Combating Trafficking in Human Beings and Protecting its Victims.[112] Article 12(2) states:

    Member States shall ensure that victims of trafficking in human beings have access without delay to legal counselling, and, in accordance with the role of victims in the relevant justice system, to legal representation, including for the purpose of claiming compensation. Legal counselling and legal representation shall be free of charge where the victim does not have sufficient financial resources.

127. In England and Wales parts of the Directive which were not already part of English and Welsh law were brought into force pursuant to the Trafficking People for Exploitation Regulations 2013.[113] As explained in Part 7 of the Explanatory Notes to the Protection of Freedoms Act 2012, the United Kingdom applied to opt in to the Directive in July 2011, and in October 2011 received confirmation that its application had been accepted. At this stage the United Kingdom was already compliant with most of the requirements of the Directive, and it is presumed that this would have included provision of legal aid in compliance with Article 12(2).

128. The Lord Chancellor considered that the exceptions to the residence test were broad enough to meet the requirements of the EU Directive. He suggested that a victim of trafficking who wished to remain in this country could apply for asylum, and that they would then be exempt from the residence test. However, he said that in most cases the Government would wish to help victims return to their families so they will be eligible for civil legal aid funding for advice concerning their status in the country and damages claims in relation to trafficking or exploitation.

129. We are concerned that the Government may not meet its current international obligations, given the narrow list of cases for which victims of trafficking will be eligible to receive civil legal aid funding under this proposal. It is not always practical for a victim of trafficking to return to their country of origin, although we acknowledge that these individuals may apply for asylum and would then be exempt from the residence test. We seek assurances from the Government that assistance and advice would be given to victims in this situation about this course of action.

130. We welcome the Government's decision to exempt certain trafficking cases, but conclude that the exemptions do not go far enough. We recommend that the Government's exemptions be extended to cases where the status of the trafficking victim is contested, and to legitimate challenges to failure to prosecute or investigate.

131. We acknowledge the specific concerns regarding victims of trafficking who are children, or whose age is disputed, and we repeat our earlier recommendation, that all children be exempt from the proposed residence test.

Exceptional funding

132. The Government's ultimate defence of the compatibility of the proposed residence test is that anyone excluded from accessing civil legal aid because of the residence test will be able to apply for "exceptional funding" under section 10 of LASPO. This, the Government says, ensures that civil legal aid will continue to be provided in any individual case where failure to do so would breach the individual's rights to legal aid under either the ECHR or EU law. In relation to the cases we have considered above, for example, it would be possible for members of the groups concerned to apply for exceptional funding. Section 10 exceptional funding only applies to civil legal services, and is relied upon by the Government to ensure that both the residence test and borderline test are article 6 ECHR compliant

133. We gave particular consideration to whether the section 10 arrangements on exceptional funding were sufficient to meet the obligations of effective access to court, when we scrutinised the Bill which became the LASPO Act:

    The Bill makes provision for funding in exceptional cases where the Director determines that it is necessary to make legal services available to an individual because failure to do so would be a breach of the individual's Convention rights or of any rights of the individual to the provision of legal services that are enforceable EU rights.

    We are concerned about whether the Bill's provision for funding exceptional cases is likely to make the right of access to justice practically effective. In many of the areas of law which are no longer in scope under the Bill, a decision on the availability of legal services will be required swiftly in order for the right of access to justice to be practically effective. We are not convinced that the provision in the Bill to fund exceptional cases, including where a failure to make the services available to a person would be a breach of their Convention rights or EU rights, is a sufficient guarantee that the new legal aid regime will not create a serious risk that its operation will lead to breaches of Convention rights. [114]

134. We took the opportunity, in this inquiry, to explore whether the exceptional funding regime is operating in practice in the way in which the Government said it would when the LASPO Act being passed, and whether it can be relied upon to ensure that legal aid continues to be provided where Article 6(1) ECHR requires it. The evidence from research by the Public Law Project (PLP), which assists applications for exceptional funding, suggests that the scheme is not operating as envisaged, and cannot currently be deemed Article 6 compliant. The Government's estimate of the number of applications for exceptional funding was between 5000-7000 applications in the first year of the LASPO Act.[115] The PLP has found that::

    There have been 746 applications received for Exceptional Case Funding since 1st April 2013 [...] 680 of the total 746 applications have been processed and of these 15 were granted [...] The LAA has received 42 direct client applications [...] 40 of these applicants have been sent preliminary views. None of these have been positive.

135. The Ministry of Justice gave us the following breakdown of applications and successes by area of law:
  Area of Law Applications Granted
Debt/Consumer/Contract 5
Family415 4
Housing/Land Law45 1
Immigration144 2
Inquest78 8
PI/Clinical Negligence 4
Welfare Benefits8
Total746 15

136. Criticisms of the exceptional funding scheme include that:

a)  The process is onerous, highly detailed, requiring analysis of the applicability of ECHR, EU and common law rights in order to prove that the case is exceptional, as well as the submission of evidence, for example medical evidence, which may attract a fee, and means and merits forms;[116]

b)  The form is completed without funding unless exceptional funding is granted, meaning that it is completed at risk by solicitors; it is suggested that the low percentage of grants of funding creates a chilling effect on applications;

c)  Litigants in person may apply for a "preliminary view" from the LAA to take to a provider, but so far no such views have been positive, and it is questionable whether the vulnerable people whom the scheme is meant to assist are in fact able to present their case to the LAA, even at a preliminary stage;

d)  There is no procedure for urgent cases;

e)  There are no exemptions for children or people who lack capacity;

f)  No or inadequate training is provided to LAA employees to apply the test.[117]
The Public Law Project (PLP) has an applicant who is registered blind and has a cognitive impairment that means he functions at the level of a dementia sufferer. The applicant cannot access the community care that he needs unless he has an outstanding immigration application. The Official Solicitor is acting for the applicant in his community care proceedings but cannot act in the immigration proceedings because the Official Solicitor does not have jurisdiction to do so. The Official Solicitor, through the applicant's community care solicitor, approached five reputable immigration firms to see if the case could be taken on and exceptional funding applied for. All of those immigration firms refused to take the case on. PLP completed an application for exceptional funding so as to seek a preliminary view of the applicant's eligibility for legal aid, which could then be used to persuade a solicitor to take on the case. Without a solicitor to help him, the applicant would be completely barred from exercising his right to make an immigration application, because he does not have capacity to do the application on his own. Furthermore, the applicant cannot be advised by anyone who is not an immigration solicitor because it is a criminal offence for someone to provide immigration advice who is not qualified or regulated to do so.

The application for a preliminary view was refused, and the refusal was upheld on the internal review. As instructed by the Official Solicitor, PLP has now sent a pre-action letter to challenge this refusal.

137. We asked the Lord Chancellor about the low number of grants of exceptional funding, and whether he considered that the scheme was working satisfactorily. He told us that he was not surprised that the numbers are relatively low, and that he was "equally ... not surprised that there are still a lot of people who are applying for funding in the hope that they will get it." He confirmed that his Ministry would be looking at the scheme to ensure it was working correctly.

138. A further potential problem was explained to us by Tim Buley:

    The LAA [...] is the "gatekeeper" for the grant of funding [...] At present, judicial review is within part 1 of Schedule 1, and hence the LAA is not called upon to make decisions whether to grant legal aid for potentially controversial claims against the government under section 10. If a residence test is introduced, that will change. The LAA, a central government body overseen by a member of the Cabinet, will make decisions on whether to fund claims which may be highly inconvenient to other government departments or the MOJ itself. In the extreme case [...] where funding is sought to challenge its own determinations on residence or section 10 itself, it will be in a position to stifle such claims. Even if [...] it acts in good faith in such cases, it is bound to be influenced by its own view of the legality of its underlying decision.[118]

The independence of decision making, and in particular the role of the Director of Legal Aid Case Work, was a particular concern in our Report on the LASPO Bill.[119]

139. We also received some evidence that questioned whether section 10 was drafted widely enough to allow funding for claims excluded on the basis of a characteristic of the claimant, namely lawful residence, as opposed to the exclusion of a type of civil legal service. We received mixed evidence on this point.[120]

140. The exceptional funding scheme is in its early stages of operation, but the evidence we have received suggests that it is not working as originally envisaged. The number of applications made is far below the expected number envisaged, and very few grants have been made. Whilst the types of cases that were expected to receive grants were always intended to be "exceptional", we do not believe that the number of applications or grants is representative of a properly functioning scheme.

141. We do not have sufficient evidence to draw conclusions as to whether the lack of funding to complete what is a detailed and lengthy application process is creating a chilling effect on the numbers of applications, and we invite the Government to investigate this as a matter of urgency.

142. The evidence we have received, when taken together with the lack of a procedure to grant emergency funding, failure to exempt children and those who lack capacity, and lack of training provided to LAA employees who are assessing these cases, strongly suggests that the scheme is not working as intended. In our opinion this is borne out by the number of grants of exceptional funding. We therefore conclude that the Government cannot rely upon the scheme as it currently operates in order to avoid breaches of access to justice rights.

143. We also recommend that the Government review the potential problems regarding the independence of decision-making at the Legal Aid Agency that may be created by the introduction of a residence test, and respond with detailed suggestions as to how it intends to prevent any appearance of a conflict of interest arising in residence test cases, where the LAA refuses to grant exception funding given that refusal can be challenged by way of judicial review, which itself requires exceptional funding, requiring the LAA to review its own funding decision.

144. For these reasons, we do not consider that the exceptional funding scheme is operating in such a way as to guarantee that legal aid funding will always be available whenever Article 6 ECHR requires it, and we therefore conclude that the Government cannot rely upon the scheme to ensure that the residence test is ECHR compliant.

Associated Community Legal Service Funding

145. A discrete topic is the effect of the residence test on civil legal aid funding under what is currently known as "Associated Community Legal Service" funding.[121] Such funding is granted for judicial reviews of decisions taken in the Magistrates' Courts and some civil orders which may arise as a result of or following criminal proceedings, such as gang injunctions.

146. Both of these areas are currently funded by way of civil funding and would therefore appear to be subject to the residence test.[122] The potential for a breach of access to justice rights is particularly acute in relation to judicial review, whereby a non-lawfully resident defendant in a criminal case could have their options for challenging decisions within the course of criminal proceedings restricted as a result of the residence test, thereby engaging Article 6(3)(c) rights to legal assistance for criminal offences. The problem is less acute for civil orders arising after the conclusion of criminal proceedings, though the same general access to justice issues arise.

147. It is not clear from the Consultation Paper whether the Government intends Associated Community Legal Service funded cases, such as judicial review in the context of a criminal case, to be subject to the proposed residence test. We invite the Government to consider exempting such cases from the residence test if it proceeds with the implementation of the proposal.

33   Transforming legal aid: delivering a more credible and efficient system Back

34   Ibid, paragraph 3.49  Back

35   Ibid, paragraph 3.50  Back

36   Transforming legal aid: Next steps. Annex B, para 125 Back

37   Ibid, paragraph 133 Back

38   The Law Society of England and Wales. Back

39   See, for example, HC PBC 6 September 2011, 8th sitting col 324 andHL Committee 3rd Sittting 16 January 2012 Col 347 Back

40   Constitution Select Committee. Legal aid, Sentencing and Punishment of Offenders Bill Report. (21st Report, Session 2010-12, HL Paper 225)-"The Committee draws clause 8(2) to the attention of the House because it is not limited to routine updating and may legitimately be used to make substantial omissions from Schedule 1." Back

41   Now section 9(2) Back

42   Ministry of Justice. Government Response to the Report -Constitution Select Committee. Legal aid, Sentencing and Punishment of Offenders Bill Report. (21st Report, Session 2010-12, HL Paper 225) Back

43   Sarah Teather MP Back

44   Q5 Back

45   Q5 Back

46   Transforming legal aid: Next steps. Annex B, paragraph 117  Back

47   Q42 Back

48   The Administrative Law Bar Association Back

49   R v Lord Chancellor, ex p. Witham [1998] QB 575 Back

50   The Legal Aid, Sentencing and Punishment of Offenders Act 2012, Section 41(1)(a) Back

51   Ibid, Section 41(2)(b). Back

52   CP14/2013 Back

53   The legality of the proposed residence test for civil legal aid: joint opinion; Michael Fordham QC, Ben Jaffey, and Ravi Mehta of Blackstone Chambers; Judicial Review journal, Volume 18, No 3, July 2013, at page 9 Back

54   Q10 Back

55   Q4 Back

56   Application 56328/07 [2011] ECHR 1448, at paragraph 46. Back

57   Q29 Back

58   Q4 and Dr Nick Armstrong Back

59   Q30 Back

60   Ibid Back

61   Anakomba Yula v Belgium Final Judgment of 10 June 2009, App No. 45413/07 Unfortunately no English translation of this judgment is currently available, although a summary has been published. Back

62   Ibid Back

63   Transforming legal aid: Next steps,Para 132, Annex B Back

64   Ibid, Para 133, Annex B Back

65   Ibid, Para 118, Annex B Back

66   See for example Sarah Teather MP. Back

67   The Refugee Council, ILPA Back

68   Q14 Back

69   The Gateway Protection Programme resettles the most vulnerable refugees in the UK and is operated in partnerships with the United Nations High Commissioner for Refugees. It offers a legal route for up to 750 refugees to settle in the UK each year, and is completely separate from the standard procedure for asylum.  Back

70   The Norwegian Directorate of Immigration describes the difference between asylum seekers and resettlement refugees as "most resettlement refugees have had their case processed and been recognised as refugees by the United Nations High Commissioner for Refugees (UNHCR) before they arrive in [another country]". Asylum seekers arriving into a country have not been granted refugee status and must go through the asylum process of the country they are in. Back

71   Letter from the Justice Secretary to the Chair of the Committee, dated 5 December 2013  Back

72   Transforming legal aid: Next steps, Para 127 Back

73   Ibid, Para 94, 102 Back

74   Joint Committee on Human Rights, First Report (2013-14): Human Rights of unaccompanied children and young people in the UK (HL Paper 9/ HC 196)  Back

75   The Children's Society, Refugee Children's Consortium, Coram Children's Legal Centre Back

76   In particular Guidelines 3.7 and 3.8. Adopted by the Committee of Ministers on the 17 November 2010 at the 1098th Meeting of the Ministers' Deputies). Available at Back

77   Refugee Children's Consortium, The Children's Society Back

78   Q11 Back

79   Q6 and The Children's Society Back

80   CRAE, Office of the Children's Commissioner, Refugee Children's Consortium, Coram Children's Legal Centre Back

81   Sigona, N. and Hughes, V. (2012) 'No way out, no way in: Irregular migrant children and families in the UK', ESRC Centre on Migration, Policy and Society, University of Oxford Back

82   HC Deb, 6 September 2011, Col 348 Back

83   Bindmans LLP, Resolution  Back

84   Q34 Back

85   Transforming legal aid: Next steps, page 87, para 125 Back

86   Q2 Back

87   Q9. HMIP  Back

88   Cohen, N. (2013) 'Yarl's Wood affair is a symptom, not the disease', The Obesrvor, 14 September3 Back

89   [2011] EWHC 2120 (Admin) (5 August 2011), at paragraph 210 Back

90   Q38 Back

91   Q39 Back

92   (1983) 5 EHRR 347 [115] Back

93   (1996) 23 EHRR 413 Back

94   Q12 Back

95   Sarah Teather MP Back

96   Q34 Back

97   For example, Migrant and Refugee Children's Legal Unit (MiClu) and Islingotn Law Centre (ILC) Back

98   Q7. See also Q12 Back

99   Rights of Women's consultation response to 'Transforming legal aid: delivering a more credible and efficient system', as referred to in their written evidence. Back

100   Women's Aid. Rights of Women Back

101   Southall Black Sisters Back

102   Q29  Back

103   Transforming legal aid: Next steps, paragraph 2.14 Back

104   Ibid, Annex B, paragraph 125 Back

105   Q13 Back

106 Paragraph 7 Back

107   The Official Solicitor Back

108   Q40 Back

109   Q13 Back

110   The Official Solicitor Back

111   Dr Nick Armstrong, Bindmans LLP, Coram Children's Legal Centre Back

112   ECPAT UK Back

113   SI 2013/554 commenced 6 April 2013 Back

114   Legislative Scrutiny: Legal Aid, Sentencing and Punishment of Offenders Bill ( 22nd Report, Session 2010-12, HL Paper 237, HC 1717) Back

115   The Public Law Project- "At a meeting on 26 February 2013 the Ministry of Justice told stakeholders (including the Public Law Project) that they anticipated that there would be between 5000-7000 applications for exceptional funding in the first year of LASPO 2012." Back

116   Hodge Jones and Allen Solicitors - "The current requirements for an Exceptional Funding application are completion of a 14 page form with specific details of the case and submissions as to how it satisfies the criteria, completion of a second 14 page form with details of the case, the steps to be taken in proceedings, the expected costs and justification for funding, and completion of a 13 or 21 page form providing the applicants' financial information, supported by evidence. For inquest proceedings the latter must be provided for every single immediate member of family of the deceased." Back

117   Q3  Back

118   Tim Buley Back

119   Legislative Scrutiny: Legal Aid, Sentencing and Punishment of Offenders Bill ( 22nd Report, Session 2010-12, HL Paper 237, HC 1717) Back

120   Tim Buley. See also Hodge Jones and Allen LLP, and Q4 Back

121   Or in relation to the proposed criminal legal aid reforms contained in Transforming Legal Aid: Next steps "Associated Civil Work". Back

122   See, for example, Blackstone's Criminal Practice 2014, D29.25 onwards, and D32.15-32.16 Back

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Prepared 13 December 2013