Government guidance on exceptional case funding for legal aid in immigration cases is unlawful, the Court of Appeal has ruled.
Lord Dyson, Master of the Rolls, held that the guidance was not compatible with Article 6 (right to a fair trial) and Article 8 (right to family life) of the European Convention on Human Rights, and also wrongly stated that the UK did not have a legal obligation to provide legal aid under case-law, in Gudanaviciene and others v Director of Legal Aid Casework and another (British Red Cross Society intervening) [2014] EWCA Civ 1622.
Nicholas Lavender QC, chairman of the Bar Council, said: “People who are refused legal help with family, housing, employment or welfare problems are being denied access to justice. We have said since LASPO [the Legal Aid, Sentencing and Punishment of Offenders Act] was introduced that the safety net for providing legal aid in exceptional cases was not fit for purpose.”
Prior to implementing LASPO, the Ministry of Justice had forecast that 5,000-7,000 applications a year would be made for legal aid in “exceptional circumstances” and that the majority of applications would be granted. In reality, however, between April 2013 and March 2014 only 1,519 applications for exceptional funding were made, of which 57 were granted.
Lavender said: “The Bar Council urges the government to change the criteria for funding cases to include cases of significant wider public interest and of overwhelming importance to the client.”
Exceptional case funding was introduced under LASPO to provide an access to justice safety net.
