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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Thompson v Director of Legal Aid Casework  EWHC 230 (Admin) (15 February 2017)
Cite as:  EWHC 230 (Admin),  1 Costs LR 163
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Sherlett Thompson
|- and -
|Director of Legal Aid Casework
Malcolm Birdling (instructed by Central Legal Team, Legal Aid Agency) for the Defendant
Hearing dates: 7th February 2017
Crown Copyright ©
Mr Justice Nicol :
'(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(and has not withdrawn either determination)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.'
' 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.
 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  Imm AR 254 at para 127).'
'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.'
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?
Was the Director's decision under s.10(3)(b) legally flawed?