2 Background
4. 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"[3] and are
taking place in England and Wales.
5. The Government consulted on a package of legal
aid reforms in Transforming legal aid: Delivering a more credible
and efficient system. The Government published a response
to this consultation, Transforming legal aid: Next steps.
In the consultation response, the Government indicated that applicants
for civil legal aid funding would have to satisfy a residence
test. The Government argued that this would preserve legal aid
funding for those with a "strong connection" with the
UK, that this would ensure that only those who paid taxes or had
an affiliation with the UK would receive UK-funded legal aid and
that it would reduce expenditure.
Transforming legal aid: Next steps
6. In our original report on this subject,[4]
we looked at the residence test as proposed in Transforming
legal aid: Next steps. In this, the Government proposed to
introduce a residence test for civil legal aid "so that only
those who are:
a) lawfully resident in the UK, Crown Dependencies
or British Overseas Territories at the time the application for
civil legal aid was made; and
b) have resided lawfully in the UK, Crown Dependencies
or British Overseas territories for a continuous period of at
least 12 months at any point in the past
would be eligible for civil legal aid. Asylum seekers
and serving members of Her Majesty's Armed Forces and their immediate
families would not be required to satisfy the test."[5]
7. The Government said that the following modifications
of their original proposal would apply:
a) "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;
b) applicants for civil legal aid on certain
matters of law (as set out at paragraph 125 and 126 above) will
not be required to satisfy the test;
c) 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
d) 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."[6]
8. The Government also proposed the following
exceptions for children:
a) "Protection of children cases (paragraphs
1, 3,7 9,8 10, 15 and 23 of Part 1 of Schedule
1 to LASPO[7]);"[8]
Our Report
9. In our original report, we were concerned
by the potential effect of a residence test on asylum seekers;
children; detainees; individuals unable to produce documentation;
individuals who lack specific mental capacity; and trafficking
victims. We also reported on the exceptional funding scheme.
10. In our original report, we focused on four
topics of particular concern with regard to children: compatibility
with the UN Convention on the Rights of the Child (UNCRC); Section
17 and 20 Children Act 1989 cases; undocumented children;[9]
and EU and international agreement cases. We look at some of these
topics again in this follow up report.
Government response
11. The Government published its response to
our original report on 27 February 2014.[10]
We are grateful to the Government for their timely response and
for accepting some of our recommendations, including:
"An asylum seeker who is successful in their
asylum claim2 will
not be required to satisfy the residence test until 12 months
after their claim for asylum was made, or until their claim for
asylum was determined (whichever occurs later). The effect will[11]
be to ensure that an asylum seeker who is successful in their
asylum claim would be either exempt from the residence test, or
be able to accrue sufficient previous lawful residence to satisfy
the second limb of the test for any civil legal aid applications.
We also acknowledge that the Government have made
a further exception from the residence test in respect to children:
"Alongside other exceptions for protection
of children cases previously set out in Next Steps there
will be a further exception for sections 17 and 20 Children Act
1989 cases falling within paragraph 6 of Part 1 of Schedule 1."[12]
13. Nevertheless, as outlined in Chapter 2, we
remain concerned about the potential effect of the residence test
on children.
3 Cases covered by civil legal aid are set out at
Schedule 1, Part 1, to the LASPO Act 2012. The Ministry of Justice
has guidance on each of the categories of law funded under the
civil legal aid scheme, available at: http://www.justice.gov.uk/legal-aid/areas-of-work/civil Back
4
Joint Committee on Human Rights, The implications for access
to justice of the Government's proposals to reform legal aid
(7th Report, Session 2013-14, HL Paper 100/HC 766) Back
5
Para 132, Transforming legal aid: Next steps Back
6
Para 133, Transforming legal aid: Next steps Back
7
Legal Aid, Sentencing and Punishment of Offenders Act 2012 Back
8
Para 125, Transforming legal aid: Next steps Back
9
Undocumented children are children who can provide no documentation
to prove their identity or residency. Back
10
Government response to the Joint Committee on Human Rights: The
implications for access to justice of the Government's proposals
to reform legal aid. February 2014 Back
11
That is, an individual who is granted leave to enter, or to remain
in, the UK based on rights described in paragraph 30(1) of Part
1 of Schedule 1 to the Legal Aid, Sentencing and Punishment of
Offenders Act 2012 (LASPO). Back
12
Ibid. Back
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