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Cite as: [2017] EWHC 230 (Admin), [2017] 1 Costs LR 163

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Neutral Citation Number: [2017] EWHC 230 (Admin)
Case No: CO/5927/2015


Royal Courts of Justice
Strand, London, WC2A 2LL

B e f o r e :


Sherlett Thompson
- and -

Director of Legal Aid Casework


Ashley Underwood QC and Judi Kemish (instructed by Duncan Lewis) for the Claimant
Malcolm Birdling (instructed by Central Legal Team, Legal Aid Agency) for the Defendant
Hearing dates: 7th February 2017



Crown Copyright ©

    Mr Justice Nicol :

  1. The Claimant is from Jamaica. She is married to a British Citizen and has lived in the UK since 2002. On 2nd December 2004 she was convicted of conspiracy to supply Class A drugs. She was sentenced to 18 months imprisonment. On 18th October 2005 the Secretary of State for the Home Department decided to deport her. She appealed to what was then the Asylum and Immigration Tribunal but the appeal was dismissed on 30th November 2005. The deportation order was not carried out and the Claimant remained in the UK. In 2010 she applied for the deportation order to be revoked. The Secretary of State finally refused her application on 19th June 2014. The Claimant has exercised her right of appeal against that decision to the First-tier Tribunal (Immigration and Asylum Chamber ('FTT'). The appeal is pending.
  2. The Claimant wishes to be represented at the appeal. She cannot afford to pay a lawyer herself, but she has applied for legal aid.
  3. Legal aid is not available as a matter of course for such appeals, but there is power to grant exceptional case funding ('ECF'). The Director of Legal Aid Casework is the official responsible for deciding whether ECF should be granted and the Claimant applied for such ECF for her appeal. Her first application was refused on 28th July 2014. The Claimant sought judicial review of that decision (CO/4023/2014 'the first judicial review'). Permission to apply for judicial review was granted. On 15th December 2014 the Court of Appeal gave its judgment in Gudanaviciene and others v The Director of Legal Aid Casework and the Lord Chancellor [2015] 1WLR 2247.
  4. The parties to the first judicial review agreed that the Director should reconsider the Claimant's request for ECF in the light of the Court of Appeal's decision. The Director did so, but, subsequently, still refused to grant the Claimant ECF. An internal review took place, but the refusal was maintained on 10th September 2015.
  5. The Claimant has sought judicial review of that decision. On 6th July 2016 Holman J. granted her permission to apply for judicial review and it is this challenge which is before me.
  6. The governing legislation is the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ('LASPO'). Section 4(1) created the office of the Director of Legal Aid Casework. The Lord Chancellor may give directions as to how the Director carries out his functions, but not in relation to individual cases - see LASPO s.4(3) and (4).
  7. Section 9 and Schedule 1 Part 1 of LASPO prescribed the usual type of cases for which civil legal aid is, in principle available. They are sometimes said to be cases which are 'in scope'. As I have said, the Claimant's appeal to the FTT are not included in that Part of Schedule 1.
  8. However, LASPO s.10 provides for situations where civil legal services may be provided for out of scope cases. The relevant provisions are s.10(2) and (3) which say,
  9. '(2) This subsection is satisfied where the Director
    (a) has made an exceptional case determination in relation to the individual and the services, and
    (b) has determined that the individual qualifies for the services in accordance with this Part,
    (and has not withdrawn either determination)
    (3) For the purposes of the subsection (2), an exceptional case determination is a determination
    (a) that it is necessary to make the services available to the individual under this Part because failure to do so would be a breach of
    i) the individual's Convention right (within the meaning of the Human Rights Act 1998), or
    ii) any rights of the individual to the provision of legal services that are enforceable EU rights, or
    (b) that it is appropriate to do so, in the particular circumstances of the case, having any regard to any risk that failure to do so would be such a breach.'
  10. In this case, Mr Underwood QC on the Claimant's behalf submits that it is necessary for her to be provided with legal aid for her appeal to the FTT because otherwise her rights under Article 8 of the ECHR would be violated and so her case came within s.10(3)(a). Alternatively, he argues, the Director was obliged to find that it was appropriate to grant her ECF because of the risk that the failure to grant her legal aid would be a breach of Article 8 and, accordingly, the refusal was unlawful in view of s.10(3)(b).
  11. As s.10(2)(b) makes a clear, even if a case is 'exceptional' the individual must qualify for services in accordance with Part 1 of LASPO. Section 11 of LASPO then explains how a person qualifies for legal aid. They must first satisfy the financial criteria see s.11(1)(a). The Claimant was financially eligible for legal aid and so I need say no more about that.
  12. Secondly the case must satisfy what are sometimes referred to as the 'merits criteria'. More specifically, the Lord Chancellor is given power by s.11 to specify these criteria in regulations and he did so in the Civil Legal Aid (Merits Criteria) Regulations 2013 SI 2013 No. 104.
  13. Regulations 4 and 5 refer to the 'prospects of success test'. Regulation 5 grades cases according to the percentage prospect of success. They are rated 'very good' if the prospect are 80% or greater; 'good' if they are between 60 80%; 'moderate' if they are between 50 60%. Other possible gradings are 'borderline', 'poor' or 'unclear'.
  14. Regulation 50 is appropriate to the present case and regulation 50(2) says that the criteria are the 'the merits criteria which appear to the Director to be most appropriate in all the circumstances of the case.'
  15. In the present case the Director applied the criteria in regulation 60 (which in its terms applies to immigration cases that are 'in scope'). This meant that the Director had to be satisfied that the 'reasonable private paying individual test' was met see regulation 60(2)(a) and which in turn is defined in regulation 7. Essentially this test is satisfied if a reasonable private paying individual would be prepared to fund the proceedings herself having regard to the prospects of success and all the circumstances of the case.
  16. Additionally, the Director had to be satisfied that the prospects of success were at least moderate (or less than this but with certain other features present).
  17. In the present case, the Director assessed the prospects of success as 'moderate' (so between 50 and 60%) and was satisfied that the relevant merits criteria were met.
  18. Nonetheless, ECF was refused. It was accepted that the Claimant's rights under Article 8 were engaged and that, since the issue concerned her removal from the UK, a matter of significant importance to her was at stake.
  19. However, the Director did not accept that the legal issues which arose in her case were particularly complex. The Immigration Judge would have to decide whether the interference with the right to family and private life which deportation would constitute would be disproportionate. Immigration Judges were well familiar with conducting that kind of exercise. The Director also considered that the necessary factual matters would be within the Claimant's own knowledge and much of that material had already been set out in statements from her and her husband. It was not disputed that the Claimant had not offended again, nor was it disputed that she and her husband had a genuine and subsisting relationship. The immigration history was lengthy, but the Home Office would produce a bundle of relevant documents. The Claimant's husband could provide a further statement if necessary. The Claimant herself was aged 39 and she had no difficulty in expressing herself in English. The FTT had considerable experience of dealing with self-represented litigants.
  20. Consequently, the Director concluded, this did not appear to be a case where the Claimant's Convention rights required her to have representation paid by the state or that there was a sufficient risk that her rights would be violated if funding was not provided so as to make it appropriate for the Director to provide ECF.
  21. In Gudanaviciene the Court of Appeal recognised that immigration decisions did not involve the determination of a 'civil right or obligation' and so the protections in Article 6 of the ECHR were not engaged. Nonetheless, Article 8 might be engaged and, this, in turn, brought with it certain procedural protections. As the Master of the Rolls said at [71] and [72].
  22. '[71] As Ms Kaufmann submits, the significance of the cases lies not in their particular facts, but in the principles they establish, viz: (i) decision-making processes by which article 8 rights are determined must be fair; (ii) fairness requires that individuals are involved in the right decision making process, viewed as a whole, to a degree that is sufficient to provide them with the requisite protection of their interests: this means that procedures for asserting or defending rights must be effectively accessible; and (iii) effective access may require the state to fund legal representation.
    [72] Whether legal aid is required will depend on the particular facts and circumstances of each case, including (a) the importance of the issues at stake; (b) the complexity of the procedural, legal and evidential issues; and (c) the ability of the individual to represent himself without legal assistance, having regard to his age and mental capacity. The following features of immigration proceedings are relevant: (i) there are statutory restrictions on the supply of advice and assistance (see section 84 of the Immigration and Asylum Act 1999); (ii) individuals may well have language difficulties; and (iii) the law is complex and rapidly evolving (see, for example, per Jackson LJ in Sapkota v Secretary of State for the Home Department [2012] Imm AR 254 at para 127).'
  23. At [77] the Master of the Rolls commented on deportation cases in particular. He said,
  24. 'Deportation cases are of particular concern. It will often be the case that a decision to deport will engage an individual's article 8 rights. Where this occurs, the individual will usually be able to say that the issues at stake for him are of great importance. This should not be regarded as a trump card which usually leads to the need for legal aid. It is no more than one of the relevant factures to be taken into account. The fact that this factor will almost invariably be present in deportation case is not, however, a justification for giving it a reduced weight.'
  25. Mr Underwood argues that appeals before the FTT are procedurally and evidentially complex. Without legal representation the Claimant would not have a reasonable opportunity to advance her case. She would be under a substantial disadvantage by comparison with the Home Office Presenting Officer. There would not be an equality of arms. Nor is there any published guidance which could assist the Claimant. The Claimant would be hampered in presenting her case if she did not have assistance in assembling evidence that she had no family left in Jamaica, that her husband needed her assistance to cope with his ill health, or that he would face burdensome disruption if he was to go with his wife to Jamaica. The Claimant had represented herself in 2005 and her appeal had then been unsuccessful. She had again represented herself at a case management hearing on 3rd November 2014. She was given a document headed 'Guidance Notes for Unrepresented Appellants', but this had been unhelpful since it was directed at appellants who had sought asylum and was of only very limited use for appellants, like the Claimant, who relied on Article 8.
  26. Mr Underwood argues that, because human rights are at stake, the Court must conduct a more intensive review than it would do otherwise. If the Court concludes that the procedural obligation implicit in Article 8 would be broken if the Claimant did not receive ECF, the Director's duty under LASPO s.10(3)(a) would be broken and the refusal should be quashed see R (SB) v Governors of Denbigh High School [2007] 1 AC 100 at [30]. Mr Birdling, on the Defendant's behalf accepted Mr Underwood's analysis of the Court's role and that this more intensive review was required when judging the decision under s.10(3)(a).
  27. In Gudanaviciene the Court said the test under s.10(3)(a) was not whether it could definitely be said that there would be a breach of Article 8 in the absence of ECF or that it could be said with a high degree of probability that there would be a breach. On the other hand, a formulation which looked at whether there was a real risk of a breach set the bar too low. In short, there was no need to add a gloss to the statutory test which was whether there 'would be a breach' of the relevant Convention right in the absence of ECF see [31].
  28. The two parties were also in the agreement that the position was different when considering the decision under s.10(3)(b). In deciding whether that decision was unlawful, they both submitted, I should apply the conventional public law criteria.
  29. Mr Underwood did indeed submit that by those criteria the s.10(3)(b) decision was unlawful. He argued that that decision to refuse funding was irrational or, in any case, had failed to take into account a relevant circumstance, namely that the prospects of success were only moderate. Mr Underwood argued that this meant that, on the Director's own assessment, the Claimant's was a marginal case where legal representation might make a significant difference to the outcome.
  30. Mr Birdling argues that the decision to refuse funding was lawful. The Director was right to conclude that this particular case was not complex, the Claimant's command of English was good and she will be appearing before a Tribunal which has considerable experience with vulnerable self-represented litigants. The Director properly decided that the Claimant could represent herself on the appeal. Having concluded that the appropriate merits test was satisfied the exact prospects of success had no relevance to the question of whether funding had to be provided so as to avoid a breach or risk of a breach of the Claimant's rights under Article 8. Article 8 did not require (nor for that matter did Article 6 require) legal aid to be provided in every case where the opponent had representation. The Claimant's case was that there was a risk of a breach of Article 8 if she was not funded, but in such circumstances, it was for the Director to assess the risk and decide whether it was appropriate to provide ECF. The decision that it did not could not be impeached.
  31. Would there be a breach of the procedural obligation inherent in Article 8 if the Claimant was refused ECF? Was the s.10(3)(a) decision unlawful?

  32. The starting point is that the appeal before the FTT concerns the Appellant's deportation. The issue is of particular significance for her. It is not a trump card, though nor is its weight to be diminished because it will always be so in deportation cases. The Director acknowledged all of this by referring expressly to the relevant paragraph in Gudanaviciene.
  33. It is not the Claimant's case that legal complexity of her case required her to be granted ECF. Speaking generally, immigration law is notoriously complicated and the precise role which Article 8 plays has given rise to some knotty problems, but for the time being at least, those seem to have been resolved.
  34. As to the facts, the Director was right to say that the Claimant and her husband had already provided statements and evidence as to the impact of her deportation on them. They could, if she wished, provide supplementary statements bringing what had been said previously up to date. I recognise that part of a lawyer's function is to turn a client's statement into the most relevant and digestible form for the particular legal process and the issues which have to be addressed. Those services can be valuable in any litigation, but neither the Strasbourg Court nor the domestic courts have suggested that the state must always provide a lawyer where substantive Article 8 rights are engaged and the litigant cannot afford a lawyer from her own resources (or that Article 6 requires this where a civil right or obligation is to be determined).
  35. Mr Underwood argued that bald statements by the Claimant or her husband (e.g. that her husband has to care for his elderly mother) will carry far more conviction if they are corroborated by other evidence. He commented, as well, that, however helpful a tribunal is willing to be to a litigant in person, it cannot plug evidential holes in the case which the litigant presents on the day of the hearing, as the Court of Appeal commented in Gudanaviciene at [91]. I understand all of this. However, these are abstract propositions, whereas the Court of Appeal has said that, to decide whether there would be a breach of the procedural obligation in Article 8, it is necessary to focus intensively on the specific facts of the case. In the present proceedings (and in the first judicial review) the Claimant has been assisted by very experienced solicitors and counsel. The Director corresponded with her present solicitors in relation to the decisions under challenge. I understand that, for the purposes of those letters they acted for her pro bono. Nonetheless, they had a copy of the Secretary of State's decision of 19th June 2014 which refused to revoke the deportation order, which spelt out why the Secretary of State considered that decision was compatible with Article 8 and which was the decision under appeal to the FTT. They had a copy of the 2005 determination by the Asylum and Immigration Tribunal and they had the papers from the previous court proceedings. If there had been further evidence gathering tasks which were needed for the Claimant to best present her case to the FTT and which she could not properly do without ECF, the solicitors would have explained this to the Director. Mr Underwood accepted that, intensive as my review must be of the s.10(3)(a) decision, its legality must still be judged by reference to the material which was or which ought to have been known to the Director.
  36. I do not accept Mr Underwood's chain of reasoning that, since the Claimant was unsuccessful in her appeal in 2005 when she represented herself, she will only be able to take part effectively in the pending appeal if she is represented. A major difference is that the forthcoming appeal will be heard some 12 years after the previous one. That may or may not be a critical factor (nothing I say in this judgment should be taken as any kind of steer to the FTT), but it will be a difference. Furthermore, Mr Underwood's reasoning appears to have the premise that ECF must be provided if it would better the Claimant's prospects of her appeal succeeding. But that is not what the procedural obligation in Article 8 requires.
  37. I agree with Mr Birdling that the Director had instead to examine the facts of the case and see if there was anything about the law or facts in the appeal which meant that the Claimant could not effectively participate without ECF. The Director concluded that there was not and therefore there would be no breach of Article 8 if the Claimant was not given ECF. In my judgment the Claimant has not shown that that conclusion was wrong.
  38. Mr Underwood's argument regarding the relevance of the 'moderate' nature of the Claimant's prospects of success is ingenious but flawed. It has the logic that the case for ECF should be stronger the lower the prospects of success (at least as long as they comply with whatever 'merits test' the Director decides is appropriate in the case). But the issue for the Director was not whether the applicant's prospects of success would be improved by representation. That will very often be the case. Rather the issue was whether representation was necessary for the applicant to be able to participate effectively in the legal proceedings. That involves an assessment of the legal and factual issues involved in the litigation and the capacity of the particular applicant to deal with them. Here the Director properly addressed all of those issues and, as I have said, the conclusions were not wrong.
  39. Was the Director's decision under s.10(3)(b) legally flawed?

  40. Mr Underwood argued that the Director's decision under s.10(3)(b) was legally flawed (a) because the Director did not properly take into account the prospects of success and (b) because the Director's decision that it was not appropriate to provide ECF in view of the risk of a breach of Article 8 was irrational.
  41. The Director did, as required, consider whether the Claimant met the merits test in LASPO s.11 and the Merits Regulations. The Director decided that the Claimant qualified under these. The Claimant, of course, makes no complaint about that aspect of the decision. I have already addressed the argument of Mr Underwood as to how the Director should have gone on to take account of the marginal prospects of success. Whether that argument is advanced in the context of the s.10(3)(a) decision or the s.10(3)(b) decision, I do not accept it.
  42. Mr Underwood accepted that for the purposes of s.10(3)(b) the Director exercised a discretion. A rationality challenge to the exercise of discretion must cross a high threshold. It is sufficient to say that I am not persuaded that the Claimant has come anywhere near to doing so. The structure of s.10(3) necessarily implies that the Director might correctly decide that refusal of ECF would not breach a Convention right, but, nonetheless, the risk that it might do so would make the grant of ECF appropriate. In the approach to the decisions the Director took account of the Lord Chancellor's guidance ('Lord Chancellor's Exceptional Funding Guidance (Non-Inquests)'). The Court of Appeal rejected a challenge to the legality of that guidance in R (S) v Director of Legal Aid Casework and the Lord Chancellor [2016] 1 WLR 4733. The s.10(3)(b) decision in the present case was not legally flawed.
  43. Conclusion

  44. It follows that this application for judicial review is dismissed.

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