2243, 2244, 2245, 2271 & 2272
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Collins
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RICHARDS
LORD JUSTICE SULLIVAN
| The Queen on the Application of
(1) Teresa Gudanaviciene
(2) IS (by his litigation friend, the Official Solicitor)
(3) Cleon Reis
(5) acqueline Elizabeth Edgehill
- and -
|The British Red Cross Society
- and -
|(1) The Director of Legal Aid Casework
(2) The Lord Chancellor
WordWave International Limited
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165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Richard Drabble QC, Mr Ranjiv Khubber and Mr Joseph Markus (instructed by Turpin Miller LLP) for Ms Gudanaviciene
Ms Phillippa Kaufmann QC and Mr Chris Buttler (instructed by Public Law Project) for IS
Mr Richard Drabble QC, Mr Tim Buley and Mr Alistair Mills (instructed by Duncan Lewis & Co) for Mr Reis
Mr Paul Bowen QC and Ms Alison Pickup (instructed by Islington Law Centre) for B
Mr Ashley Underwood QC and Mr Adam Tear (instructed by Duncan Lewis & Co) for Ms Edgehill
Mr Paul Bowen QC and Ms Catherine Meredith (instructed by ATLEU) for LS
Mr Guy S Goodwin-Gill and Ms Samantha Knights (instructed by Freshfields Bruckhaus Deringer LLP) for The British Red Cross Society
Hearing dates : 27, 28, 29 and 31 October 2014
Crown Copyright ©
|GROUND 1: THE PROPER INTERPRETATION OF SECTION 10(3) OF LASPO||25|
|GROUND 2: IS THE GUIDANCE COMPATIBLE WITH ARTICLE 6 OF THE CONVENTION AND ARTICLE 47 OF THE CHARTER?||33|
|The ECtHR jurisprudence on article 6||35|
|The CJEU jurisprudence||57|
|GROUND 3: IS THE GUIDANCE COMPATIBLE WITH ARTICLE 8 OF THE CONVENTION IN IMMIGRATION CASES?||60|
|The appellants' submissions||60|
|The case of IS||78|
|GROUND 4: THE CASE OF MS GUDANAVICIENE||81|
|GROUND 6: THE CASE OF LS||92|
|Does article 12(2) of the Trafficking Directive confer a right to legal aid at the stage left out of scope by LASPO?||102|
|The application of article 8 to LS's case||110|
|GROUND 7: THE CASE OF MR REIS||125|
|GROUND 8: THE CASE OF B||136|
|Is an application for family reunion in scope for legal aid?||139|
|The application of article 8 to B's case||155|
|GROUND 9: THE CASE OF MS EDGEHILL||174|
|SUMMARY OF CONCLUSIONS||181|
Master of the Rolls:
"(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.)"
"(1) Civil legal services other than services described in Part 1 of Schedule 1 are to be available to an individual under this Part if subsection (2) is satisfied.
(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 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 rights (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 regard to any risk that failure to do so would be such a breach."
"107. It will be necessary to make legal services available to an individual where the withholding of such services would clearly amount to a breach of Article 6 .. There will be a breach of the enforceable EU rights of the individual to the provision of legal services where the withholding of such services would be clearly contrary to the rights reaffirmed by Article 47 of the Charter of Fundamental Rights .
108. Subsection (3)(b) provides that an exceptional case determination may also be made where the Director considers that the failure to provide legal services would not necessarily amount to a breach of an individual's rights, but that it is nevertheless appropriate for the services to be made available, having regard to the risk of such a breach occurring."
"(a) comply with directions given by the Lord Chancellor about the carrying out of the Director's functions under this Part, and
(b) have regard to guidance given by the Lord Chancellor about the carrying out of those functions."
"This guidance sets out some of the factors that caseworkers should take into account in deciding exceptional funding applications under section 10(2) and (3) of the Act. It is not intended to be an exhaustive account of those factors. In particular, it is not intended to replace the need for consideration of representations in individual cases and new case law that arises. Applications should be considered on a case by case basis. "
"6. Section 10(3)(b) does not provide a general power to fund cases that fall outside the scope of legal aid. It is to be used for rare cases and provides that an exceptional case determination may be made where the risk of the breach of the rights set out in section 10(3)(a) is such that it is appropriate to fund.
7. The purpose of section 10(3) of the Act is to enable compliance with ECHR and EU law obligations in the context of a civil legal aid scheme that has refocused limited resources on the highest priority cases. Caseworkers should approach section 10(3)(b) with this firmly in mind. It would not therefore be appropriate to fund simply because a risk (however small) exists of a breach of the relevant rights. Rather, section 10(3)(b) should be used in those rare cases where it cannot be said with certainty whether the failure to fund would amount to a breach of the rights set out at section10(3)(a) but the risk of breach is so substantial that it is nevertheless appropriate to fund in all the circumstances of the case. This may be so, for example, where the case law is uncertain (owing, for example, to conflicting judgments)."
"9. Whereas Article 6 ECHR provides a specific right to legal assistance in the context of criminal proceedings, the Convention contains no such specific right in relation to civil proceedings. Rather, the ECtHR has recognised that there are very limited circumstances in which the failure of the State to provide civil legal aid may amount to breach of an individual's rights under the European Convention on Human Rights.
10. Caseworkers will need to consider, in particular, whether it is necessary to grant funding in order to avoid a breach of an applicant's rights under Article 6(1) ECHR. As set out below, the threshold for such a breach is very high."
"12. Article 6(1) guarantees the right to a fair hearing and the right of access to the court for the purposes of the determination of a person's civil rights and obligations. In certain very limited circumstances, legal aid may be required in order to guarantee the effective right of access to a court in civil proceedings."
"18. Assuming that the proceedings in question involve the determination of a civil right or obligation, caseworkers should then go on to consider whether the failure to provide legal aid would be a breach of the applicant's rights under Article 6(1) ECHR.
The overarching question to consider is whether the withholding of legal aid would make the assertion of the claim practically impossible or lead to an obvious unfairness in proceedings. This is a very high threshold" (original emphasis).
"22. Caseworkers should consider whether the applicant would be incapable of presenting their case without the assistance of a lawyer. When considering this factor, caseworkers will need to bear in mind their assessment of case complexity, as this may affect the weight that needs to be given to some of the matters listed below.
23. In doing so, caseworkers should bear in mind that:
- there is no requirement to provide legal aid to ensure total equality of arms between an applicant and opponent, so long as each side is afforded a reasonable opportunity to present their case under conditions that don't place them at a substantial disadvantage compared to the opponent;
- most courts and, in particular, tribunals are well used to assisting unrepresented parties in presenting or defending their cases against an opponent who has legal representation."
"26. Applicants may seek to argue that the provision of legal aid is necessary in order to avoid a breach of the applicant's rights under Article 8 ECHR (right to respect for private and family life).
27. In the cases of Airey v Ireland and P, C and S v United Kingdom, the ECtHR found that the lack of an accessible legal procedure in certain types of family law proceedings did amount to a breach of Article 8 ECHR. Although caseworkers should consider each application on its individual facts, it would normally only be in circumstances closely analogous to these cases that the failure to provide legal aid would amount to a breach of Article 8 ECHR.
28. In those cases, the ECtHR also found that the failure to provide legal aid amounted to a breach of Article 6(1) ECHR. It is likely that cases in which an applicant seeks to rely on Article 8 would therefore fall more naturally to be considered under the Article 6(1) heading."
"59. Proceedings relating to the immigration status of immigrants and decisions relating to the entry, stay and deportation of immigrants do not involve the determination of civil rights and obligations.
60. The Lord Chancellor does not consider that there is anything in the current case law that would put the State under a legal obligation to provide legal aid in immigration proceedings in order to meet the procedural requirements of Article 8 ECHR."
GROUND 1: THE PROPER INTERPRETATION OF SECTION 10(3) OF LASPO
"In my judgment, Mr Eadie QC was right to say that the test for 'risk' required by Section 10(3)(b) must be considered by reference to the aim and purpose of LASPO itself. LASPO aims to make civil legal aid available in the particular cases identified in Part 1 of Schedule 1, and not otherwise, unless the provision of legal aid is necessary or appropriate within the definitions at Section 10(3). Those exceptional cases will therefore be limited; in my view, they can only arise either where it could definitely be said that a refusal of legal aid would give rise to a breach of the Convention; or where there was a significant risk or a very high risk of such a breach. However it is expressed, it must be a 'very high threshold': see paragraph 44 of the judgment of the Divisional Court in Howard League . Any lesser test would, in my judgment, be contrary to the purpose and scheme of LASPO because, instead of the specific and defined cases in Part 1 of Schedule 1, it would create an almost limitless category of 'exceptional cases'."
GROUND 2: IS THE GUIDANCE COMPATIBLE WITH ARTICLE 6 OF THE CONVENTION AND ARTICLE 47 OF THE CHARTER?
"(1) In the determination of his civil rights and obligations everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ."
"Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.
Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.
Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice."
The ECtHR jurisprudence on article 6
"24. The Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective. This is particularly so of the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial. It must therefore be ascertained whether Mrs. Airey's appearance before the High Court without the assistance of a lawyer would be effective, in the sense of whether she would be able to present her case properly and satisfactorily.
Contradictory views on this question were expressed by the Government and the Commission during the oral hearings. It seems certain to the Court that the applicant would be at a disadvantage if her husband were represented by a lawyer and she were not. Quite apart from this eventuality, it is not realistic, in the Court's opinion, to suppose that, in litigation of this nature, the applicant could effectively conduct her own case, despite the assistance which, as was stressed by the Government, the judge affords to parties acting in person.
In Ireland, a decree of judicial separation is not obtainable in a District Court, where the procedure is relatively simple, but only in the High Court. A specialist in Irish family law, Mr. Alan J. Shatter, regards the High Court as the least accessible court not only because 'fees payable for representation before it are very high' but also by reason of the fact that 'the procedure for instituting proceedings ... is complex particularly in the case of those proceedings which must be commenced by a petition', such as those for separation.
Furthermore, litigation of this kind, in addition to involving complicated points of law, necessitates proof of adultery, unnatural practices or, as in the present case, cruelty; to establish the facts, expert evidence may have to be tendered and witnesses may have to be found, called and examined. What is more, marital disputes often entail an emotional involvement that is scarcely compatible with the degree of objectivity required by advocacy in court.
For these reasons, the Court considers it most improbable that a person in Mrs. Airey's position can effectively present his or her own case. This view is corroborated by the Government's replies to the questions put by the Court, replies which reveal that in each of the 255 judicial separation proceedings initiated in Ireland in the period from January 1972 to December 1978, without exception, the petitioner was represented by a lawyer .
The Court concludes from the foregoing that the possibility to appear in person before the High Court does not provide the applicant with an effective right of access .
It would be erroneous to generalise the conclusion that the possibility to appear in person before the High Court does not provide Mrs. Airey with an effective right of access; that conclusion does not hold good for all cases concerning 'civil rights and obligations' or for everyone involved therein. In certain eventualities, the possibility of appearing before a court in person, even without a lawyer's assistance, will meet the requirements of Article 6 para. 1; there may be occasions when such a possibility secures adequate access even to the High Court. Indeed, much must depend on the particular circumstances.
In addition, whilst Article 6 para. 1 guarantees to litigants an effective right of access to the courts for the determination of their "civil rights and obligations", it leaves to the State a free choice of the means to be used towards this end. The institution of a legal aid scheme which Ireland now envisages in family law matters constitutes one of those means but there are others such as, for example, a simplification of procedure. In any event, it is not the Court's function to indicate, let alone dictate, which measures should be taken; all that the Convention requires is that an individual should enjoy his effective right of access to the courts in conditions not at variance with Article 6 para. 1.
The conclusion appearing at the end of paragraph 24 above does not therefore imply that the State must provide free legal aid for every dispute relating to a 'civil right'.
To hold that so far-reaching an obligation exists would, the Court agrees, sit ill with the fact that the Convention contains no provision on legal aid for those disputes, Article 6 para. 3 (c) dealing only with criminal proceedings. However, despite the absence of a similar clause for civil litigation, Article 6 para. 1 may sometimes compel the State to provide for the assistance of a lawyer when such assistance proves indispensable for an effective access to court either because legal representation is rendered compulsory, as is done by the domestic law of certain Contracting States for various types of litigation, or by reason of the complexity of the procedure or of the case."
" .the Commission recalls that unlike the situation concerning criminal proceedings (cf. Art 6(3)(c)) the Convention does not guarantee as such a right to free legal aid in civil cases. Only in exceptional circumstances, namely where the withholding of legal aid would make the assertion of a civil claim practically impossible, or where it would lead to obvious unfairness of the proceedings, can such a right be invoked by virtue of Art. 6(1) of the Convention (cf Airey v Ireland, 2 EHRR 305)".
" such assistance is indispensable for effective access to court by reason of the complexity of the procedure or the type of case .
Thus, though the pursuit of proceedings as a litigant in person may on occasion not be an easy matter, the limited public funds available for civil actions renders a procedure of selection a necessary feature of the system of administration of justice, and the manner in which it functions in particular cases may be shown not to have been arbitrary or disproportionate, or to have impinged on the very essence of the right of access to court".
"Secondly, the key principle governing the application of Article 6 is fairness. In cases where an applicant appears in court notwithstanding lack of assistance of a lawyer and manages to conduct his or her case in the teeth of all the difficulties, the question may nonetheless arise as to whether this procedure was fair. There is the importance of ensuring the appearance of the fair administration of justice and a party in civil proceedings must be able to participate effectively, inter alia, by being able to put forward the matters in support of his or her claims. Here, as in other aspects of Article 6, the seriousness of what is at stake for the applicant will be of relevance to assessing the adequacy and fairness of the procedures."
"61. The question whether the provision of legal aid is necessary for a fair hearing must be determined on the basis of the particular facts and circumstances of each case and will depend, inter alia, upon the importance of what is at stake for the applicant in the proceedings, the complexity of the relevant law and procedure and the applicant's capacity to represent him or herself effectively.
62. The right of access to a court is not, however, absolute and may be subject to restrictions, provided that these pursue a legitimate aim and are proportionate. It may therefore be acceptable to impose conditions on the grant of legal aid based, inter alia, on the financial situation of the litigant or his or her prospects of success in the proceedings. Moreover, it is not incumbent on the State to seek through the use of public funds to ensure total equality of arms between the assisted person and the opposing party, as long as each side is afforded a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-ΰ-vis the adversary."
"The complexity of the case, along with the importance of what was at stake and the highly emotive nature of the subject-matter, [led the] Court to conclude that the principles of effective access to court and fairness required that P receive the assistance of a lawyer."
"the disparity between the respective levels of legal assistance enjoyed by the applicants and McDonald's was of such a degree that it could not have failed, in this exceptionally demanding case, to have given rise to unfairness, despite the best efforts of the judges at first instance and on appeal."
"The test under art 6(1), as it seems to me, is whether a court is put in a position that it really cannot do justice in the case because it has no confidence in its ability to grasp the facts and principles of the matter on which it has to decide. In such a case it may well be said that a litigant is deprived of effective access; deprived of effective access because, although he can present his case in person, he cannot do so in a way which will enable the court to fulfil its paramount and over-arching function of reaching a just decision. But it is the task of courts to struggle with difficult and ill-prepared cases; and courts do so every day ..If it cannot [reach a just decision] the litigant is effectively deprived of proper access to the courts."
The CJEU jurisprudence
"60. In that connection, it is for the national court to ascertain whether the conditions for granting legal aid constitute a limitation on the right of access to the courts which undermines the very core of that right; whether they pursue a legitimate aim; and whether there is a reasonable relationship of proportionality between the means employed and the legitimate aim which it is sought to achieve.
61. In making that assessment, the national court must take into consideration the subject-matter of the litigation; whether the applicant has a reasonable prospect of success; the importance of what is at stake for the applicant in the proceedings; the complexity of the applicable law and procedure; and the applicant's capacity to represent himself effectively. In order to assess the proportionality, the national court may also take account of the amount of the costs of the proceedings in respect of which advance payment must be made and whether or not those costs might represent an insurmountable obstacle to access to the courts."
GROUND 3: IS THE GUIDANCE COMPATIBLE WITH ARTICLE 8 OF THE CONVENTION IN IMMIGRATION CASES?
The appellants' submissions
"In the Court's view, what therefore has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as 'necessary' within the meaning of Article 8."
"136. The Court does not propose to attempt to untangle these opposed considerations, which raise difficult and sensitive issues concerning S.'s welfare. It considers rather that the complexity of the case, and the fine balance which had to be struck between the interests of S. and her parents, required that particular importance be attached to the procedural obligations inherent in Article 8 of the Convention. It was crucial for the parents in this case to be able to put forward their case as favourably as possible, emphasising for example whatever factors militated in favour of a further assessment of a possible rehabilitation, and for their viewpoints on the possible alternatives to adoption and the continuation of contact event after adoption to be put forward at the appropriate time for consideration by the court.
137. The lack of legal representation of P. during the care proceedings and of P. and C. during the freeing for adoption proceedings, together with the lack of any real lapse of time between the two procedures, has been found above to have deprived the applicants of a fair and effective hearing in court. Having regard to the seriousness of what was at stake, the Court finds that it also prevented them from being involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests under Article 8 of the Convention. Emotionally involved in the case as they were, the applicant parents were placed at a serious disadvantage by these elements, and it cannot be excluded that this might have had an effect on the decisions reached and the eventual outcome for the family as whole."
" the national authorities should have ensured that, in view of the importance of the proceedings at issue for her right to respect for her family life, the first applicant's interests were adequately protected in the proceedings at issue. That the first applicant could not properly understand the full legal effect of such proceedings and adequately argue her case and thus protect her rights and interests as the biological mother of L. is evidenced by her above-described personal circumstances."
The case of IS
GROUND 4: THE CASE OF MS GUDANAVICIENE
"54. I shall refer to this claimant as TG. She is a national of Lithuania who came to this country in 2010 to work here. She was in a relationship with a partner who had a drink problem and was abusive and violent towards her. In September 2012 she was convicted of an offence of wounding her partner with intent contrary to s.18 of the Offences against the Person Act 1861. She had stabbed her partner with a kitchen knife and it was obviously fortunate that she had not killed him. However, it is apparent from the judge's sentencing remarks that the jury had, it would seem in a rider to its decision, said that she had been under pressure and had been provoked by her partner's conduct. The judge said that having regard to this and her family responsibilities he would pass a sentence which was 'about six to twelve months lighter' than he had originally envisaged. He imposed a sentence of 18 months imprisonment.
55. The Secretary of State for the Home Department decided that the claimant should be deported. Regulation 19(3) of the Immigration (European Economic Area) Regulations 2006 enables removal to be carried out if the Secretary of State has decided that it is justified 'on grounds of public policy, public security or public health in accordance with Regulation 21'. Regulation 21(5) provides that any such decision must comply with the principle of proportionality and must be based exclusively on the person's personal conduct. Regulation 21(5)(c) provides:-
'the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society'.
And Regulation 21(5)(e) states that a person's previous criminal convictions do not in themselves justify the decision.
56. The claimant has a two year old daughter of whom her former partner is the father. The decision to deport recognised the need to safeguard the child's welfare in accordance with s.55 of the 2009 Act. Her daughter is in foster care. The only report is in the form of a statement from a senior social worker whose report was made at a time when the claimant was still in prison: she has since been granted bail. The view expressed was that her father had problems in relating to his daughter and children's services had concerns for her safety and development should she be placed with her father. While there had been no opportunity to make a full assessment of the claimant's capability as a carer of her daughter, such contact sessions as had been possible showed that the claimant appeared to be the most obvious choice of sole carer."
82. The deportation decision referred to in para 55 of Collins J's judgment was made on 10 December 2012. Para 30 of the decision letter said:
"It is considered that the combination of your criminal conduct in terms of the risk of serious harm to the public and your propensity to reoffend make it reasonable to strike a fair balance between the best interests of your daughter and the weight attached to the necessary action of deportation. It is considered that this can be achieved by expecting you to return to Lithuania and maintain relationship with your child and partner by modern means of communication."
83. TG is an EU citizen. She appealed under the Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations") to the First-tier Tribunal. It is common ground that her case falls within article 47 of the Charter. She applied for ECF on 22 May 2013. Her application was refused on 12 July and the refusal was confirmed, following a review, on 26 July 2013.
84. Collins J considered that the flaws in the Secretary of State's decision were "all too obvious":
"58. There is no evidence that the claimant has a propensity to reoffend. She has been living in a safe house for victims of domestic violence and completed courses designed to assist such victims. Further life with her former partner is not likely. The suggestion that she can maintain a relationship with her daughter from Lithuania is hardly in the daughter's best interests. It must be apparent that she has a very strong case so far as merits of the appeal are concerned."
85. In para 59 Collins J said that TG "has very poor command of English and, as must be obvious, she will be emotionally involved in the appeal so that she cannot approach it in an objective fashion."
86. Against this background, Collins J said that the reasons given by the Director in the review decision letter for refusing ECF were "thoroughly unsatisfactory":
"60. It is said that the issues are not complex and the tribunal 'will take account of the relevant case law and legislation, including EU law and the facts of the case'. But the test under Regulation 21(5)(c) is key and it will be necessary to produce evidence to deal with the risk of harm. That does not now exist to any meaningful extent and it is difficult to follow how without assistance the claimant can be expected to obtain the necessary evidence, let alone make representations on the issue. Furthermore, there is no evidence as to whether the daughter will be able to be cared for if she were to go to Lithuania with her mother and what provision will be made for her daughter's future here. All this additional evidence cannot be obtained by the tribunal, particularly as the proceedings are adversarial. The suggestions in the refusal letter that 'any further evidence in respect of your client's family or criminal case is accessible by your client and can be submitted to the First Tier Tribunal for their consideration' and 'Your client can with the assistance of an interpreter, further address any question of the First Tier Tribunal and provide further factual information towards the proportionality of the decision to deport' are little short of absurd. It reflects the flawed guidance on the high level of the threshold and the exclusion of Article 8."
"62. The decision in TG's case shows how the very high threshold applied by the Guidance can produce a perverse decision. Even on that high threshold, the decision was in my judgment unreasonable in Wednesbury terms but, on the correct approach, it is indefensible. It is accepted that if as a matter of law I were to take the view that an adverse decision could not be made I should direct the Director to grant legal aid (subject to the means test being satisfied, as I think it is) since the merits test is clearly met. Unless proper evidence is obtained on risk of harm and in relation to the future care of the claimant's daughter, she will not obtain a just result and on the evidential matters the tribunal cannot help her. Furthermore, competent solicitors may be able to persuade the Home Office that the decision should be withdrawn so that costs are saved to an even greater extent."
GROUND 6: THE CASE OF LS
i) An organisation designated as a "first responder", having identified a potential VOT, completes a detailed referral form containing the individual's personal details, a series of tick boxes setting out "indicators" (general indicators, indicators of forced labour, indicators of domestic servitude, indicators of sexual exploitation), and a section for evidence to support the reasons for referral. The completed form must be signed by the individual to confirm his or her consent to the referral (if the person is an adult). Bodies authorised to act as first responders include local authorities, police forces and a number of charitable organisations such as the Salvation Army, Migrant Help, Kalayaan, Barnardos and the NSPCC.
ii) The completed referral form is transmitted to a "competent authority". There are two competent authorities, namely the UK Human Trafficking Centre ("UKHTC") and UK Visas and Immigration ("UKVI"), formerly the UK Border Agency. Referral forms are sent in the first instance to UKHTC, which either deals with the matter itself or forwards the papers to be dealt with by UKVI. It appears that UKVI deals with cases where there are immigration issues involving individuals from outside the European Economic Area.
iii) The relevant competent authority decides whether there are "reasonable grounds" to believe that the individual is a VOT. The threshold applied by the case worker is whether from the information available so far he or she suspects (but cannot prove) that the individual is a potential VOT. There is a target of 5 days for a decision on that question. If the decision is affirmative, the individual is allocated a place within safe accommodation, if required, and is granted a recovery and reflection period of 45 days. As described below, an affirmative decision also engages a right to legal aid in relation to the making of applications for leave to enter or remain in the United Kingdom.
iv) An affirmative reasonable grounds decision is followed by a period of further information gathering. The competent authority then reaches a "conclusive determination" as to whether the individual is or is not a VOT. The target is to reach such a decision within the 45 day recovery and reflection period.
"32. Victims of trafficking in human beings
(1) Civil legal services provided to an individual in relation to an application by the individual for leave to enter, or to remain in, the United Kingdom where
(a) there has been a conclusive determination that the individual is a victim of trafficking in human beings, or
(b) there are reasonable grounds to believe that the individual is such a victim and there has not been a conclusive determination that the individual is not such a victim."
Para 32(6)-(8) makes clear that the references to "reasonable grounds to believe" and to a "conclusive determination" are to the corresponding decisions made by a competent authority under the NRM process described above.
"74. The claimant, a Nigerian citizen, was violently assaulted in a family dispute following his father's death. He was badly injured and his brother was killed. The assailants were given short prison sentences and the claimant was anxious to leave Nigeria before their release, fearing further violence. His uncle arranged with an agent for him to travel to the UK on a false passport. He arrived here in January 2004 and was introduced by the agent to a restaurant owner, Comfort Afolabi. She used his fear of the authorities and threats to inform that he was here unlawfully and so would be returned to Nigeria to compel him to work for her in appalling circumstances. He was paid very little certainly insufficient to provide for a living wage and slept on a mattress in the cooler room of the restaurant. He met a lady who is now his partner and by whom he has had three children. His partner and the children have been given indefinite leave to remain and the third child is considered to be a British citizen.
75. In the circumstances, he contended that he was a victim of trafficking (VOT). The circumstances in which he was required to work for Ms Afolabi amount to slave labour. Encouraged by his partner, he escaped from the restaurant in January 2009 and went to live with his partner. Ms Afolabi apparently died in the summer of 2009. His fear of being deported if he approached the authorities led him to delay taking any action until April 2013 when he approached the Anti-Trafficking and Labour Exploitation Unit (ATLEU), which operates in North London. ATLEU were acting for his partner in relation to support for her children and her immigration position. She too was a VOT.
76. An application for ECF was made by ATLEU on his behalf on 17 June 2013. This was said to be for the purposes of preparing an application under Article 8 of the ECHR and making a referral to the competent authority to enable a positive decision in relation to his claim to be a VOT. It was said that a failure to grant ECF would breach or create a risk of breach of his Article 4 and 8 rights and violate his EU law rights as a VOT. The application followed a request from the Public Law Project (to which ATLEU had referred his case) for a preliminary view on ECF. There was a negative response. A review was carried out and the answer remained negative. The reasons were given in a letter of 28 June 2013."
Does article 12(2) of the Trafficking Directive confer a right to legal aid at the stage left out of scope by LASPO?
Protection of victims of trafficking in human beings in criminal investigation and proceedings
(2) 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."
Assistance and support for victims of trafficking in human beings
1. [criminal proceedings]
2. Member States shall take the necessary measures to ensure that a person is provided with assistance and support as soon as the competent authorities have a reasonable-grounds indication for believing that the person might have been subjected to any of the offences referred to in Articles 2 and 3.
5. The assistance and support measures referred to in paragraphs 1 and 2 shall be provided on a consensual and informed basis, and shall include at least standards of living capable of ensuring victims' subsistence through measures such as the provision of appropriate and safe accommodation and material assistance, as well as necessary medical treatment including psychological assistance, counselling and information, and translation and interpretation services where appropriate."
Thus, by the express wording of article 11, confirmed by the content of the directly related recital (18), the requirement is to provide assistance and support measures once a reasonable grounds decision has been made. Had the intention been to require such measures prior to a reasonable grounds decision, article 11 would have so provided.
"Article 10 Identification of the victims
2. Each Party shall adopt such legislative or other measures as may be necessary to identify victims as appropriate in collaboration with other Parties and relevant support organisations. Each Party shall ensure that, if the competent authorities have reasonable grounds to believe that a person has been victim of trafficking in human beings, that person shall not be removed from its territory until the identification process as victim of an offence provided for in Article 18 of this Convention has been completed by the competent authorities and shall likewise ensure that that person receives the assistance provided for in Article 12, paragraphs 1 and 2.
Article 12 Assistance to victims
1. Each Party shall adopt such legislative or other measures as may be necessary to assist victims in their physical, psychological and social recovery. Such assistance shall include at least:
d. counselling and information, in particular as regards their legal rights and the services available to them, in a language that they can understand;
e. assistance to enable their rights to be presented and considered at appropriate stages of criminal proceedings against offenders
2. Each Party shall take due account of the victim's safety and protection needs ."
Thus, the primary obligation to ensure the provision of relevant counselling and assistance applies by article 12(1) to "victims": this plainly refers to persons whose VOT status has been established ("victim" is defined by article 4(e) as "any natural person who is subject to trafficking in human beings as defined in this article"). The obligation is extended by article 10(2) so as to cover persons in respect of whom the competent authorities have reasonable grounds to believe that they are victims. It is not, however, extended to any earlier stage of the process.
The application of article 8 to LS's case
"I have had regard to the applicant's family situation. I note that he has two minor children, aged 2 and 4, and a third due. I note that his ex-partner and the children have been granted ILR. However, I note that the applicant is first proposing to approach the authorities for a decision on whether he is a victim of trafficking before making an asylum claim. I note that there are no asylum proceedings underway at this stage and there is currently no deportation decision, which would affect the applicant's Article 8 rights. At this point in time, Article 8 is therefore not engaged.
In any event, even if Article 8 were engaged, I do not consider that this would give the applicant a right to legal aid funding. I refer you to paragraph 60 of the Lord Chancellor's Guidance ."
"24. As a result we are increasingly finding that it is not possible for our clients to access any immigration advice prior to a referral into the NRM. In our experience clients who have breached the immigration rules in escaping their alleged traffickers are understandably reluctant to consent to a referral into the NRM before they have some understanding of potential future immigration options.
25. As Kalayaan's OISC exemption does not cover advice at this level and legal aid is denied until a Reasonable Grounds decision has been made many of those who we internally identify as trafficked do not consent to a referral and lose contact with us, going underground, potentially to be further exploited. It is likely that were these individuals able to access legal aid and the resulting advice prior to an NRM referral they would be more likely to instruct a solicitor, consent to a referral and thus remain (to some extent) visible and supported. There remains a large discrepancy between numbers of clients who Kalayaan staff internally identify as trafficked (86 new clients in 2013) and those referred into the NRM (21 referrals during 2013)."
i) The issue of VOT status and the related issues of family life under article 8 are plainly of great importance to LS. We take the view, however, that an individual in his position does not require legal advice and assistance in order to be involved in the VOT decision-making process, seen as a whole, to a degree sufficient to provide him with the requisite protection of his interests under article 8. The identification of a first responder willing and able to make a referral may not be free from difficulty but there is nothing to show that the particular problem experienced in LS's case is a widespread one. The referral form is designed to identify relevant issues and to prompt the provision of supporting evidence without the need for legal advice or assistance: a first responder can reasonably be expected to be able to complete it through questioning of the individual. Complex issues can no doubt arise but there was no particular complexity about this case. The process up to and including the making of a reasonable grounds decision is relatively straightforward, and an affirmative reasonable grounds decision engages a right to legal aid thereafter. Legal advice and assistance in relation to the referral process may be very helpful and lead to a fuller submission but it cannot be said to be necessary in circumstances such as those of LS.
ii) A more difficult question (though this line of argument was not in fact the basis of LS's application for ECF) is whether an individual needs legal advice at the pre-referral stage in order to encourage him to come forward and in order to enable him to make an informed decision on whether to agree to a referral. There is force in the argument that without legal advice some (perhaps many) potential VOTs will keep away from the NRM process when they would otherwise have entered it. It would be surprising, however, if article 8 required legal aid to be made available in the ordinary course to enable a person claiming to be a VOT to decide whether to enter the NRM process with a view to making good the claim. It would be all the more surprising in circumstances where the relevant international instruments make an affirmative reasonable grounds decision the trigger for the provision of legal aid. We do not consider that there is any general requirement to provide legal aid at the prior stage or that the particular circumstances of LS's case necessitated it.
GROUND 7: THE CASE OF MR REIS
"88. The claimant is a Portuguese national now 28 years' old. He entered this country with his mother in December 1998 when he was 12 years' old and has lived here ever since. He has since about 2002 committed a considerable number of criminal offences which have increased in seriousness. His first custodial sentence appears to have been one of 9 months and 2 weeks in a young offenders' institution in 2006 for various offences committed, some while on bail, for driving vehicles taken without consent dangerously and while disqualified. In 2007 he was again convicted of driving whilst disqualified and received a suspended prison sentence. He breached this order and in June 2008 was sentenced to 20 months imprisonment for burglary and theft. He was then warned by the Home Office that deportation would not be pursued then, but that he must note that it had been considered. He took no notice. In November 2009 he was convicted of aggravated vehicle taking, causing damage to a vehicle in excess of £5000, and driving whilst disqualified. For these offences, he was sentenced to 15 months imprisonment. The damage to the vehicle was caused when he attempted to escape from the police and was involved in a high speed chase. While the offences are not of the most serious and he did not commit any offence which directly involved violence to an individual, nonetheless the offending was persistent and its seriousness increased.
89. The Recorder who sentenced him in 2009 referred to his appalling record and concluded:-
'It is clear that you are easily influenced by friends and criminally minded peers and it is also clear that you have shown a significant ability to act without any consideration towards others and other people's property to the extent that you put other road users at significant personal risk.'
90. On 29 July 2010 the Secretary of State for the Home Department notified the claimant that she had decided to make a deportation order. It was asserted that he had not resided here, having regard to his custodial sentences, for at least 5 years so that he was not entitled to the level of protection appropriate to that. The First Tier Tribunal accepted that he had but nonetheless dismissed his appeal. His application for leave to appeal to the Upper Tier Tribunal was refused. He sought judicial review of that refusal raising a point which had not been clearly made that he qualified for the highest level of protection by virtue of 10 years residence. Leave was granted by Walker J, following refusal on the papers by me, in May 2012. On 13 May 2013 the Secretary of State for the Home Department agreed to reconsider the question of deportation and so the judicial review was brought to an end. On 20 May 2013 she decided to make a deportation order."
"It follows that to assess whether there has been 10 years continuous residence prior to the decision to deport (in the case prior to May 2013) the First Tier Tribunal will have to consider all the circumstances to decide whether enhanced protection has been established."
"94. The guidance issued by the CJEU is not in my view as clear as Mr Chamberlain submits and there is a difficult question to be determined on the facts of the claimant's case. Those and his attitudes must be carefully assessed.
95. There is an Article 8 claim based on his fatherhood of a child. He has split up from his partner. There can be no doubt that that claim is extremely weak and I do not think it is such as to justify legal aid."
"The reasons for refusing legal aid include the assertions that the claimant had had legal representation at his previous hearings and it was 'speculative to think that previous errors will be repeated'. In addition, it is said that proceedings before the First Tier Tribunal 'are not complex either in law or procedure'. That observation I find remarkable and it suggests that the author has never had experience of observing appeals before the First Tier Tribunal. The reality is, having regard both to the possibility of difficulties in dealing with contentious factual matters and, in immigration law which is taking up a substantial part of the Court of Appeal's caseload, there can be considerable complexity."
"The refusal was based on an application of the Guidance which set too high a threshold. This will on any view be a difficult appeal and I am entirely satisfied that without legal assistance there is a real prospect of the claimant not receiving justice. It follows that I quash the refusal and I propose to direct in this case that legal aid be granted for the hearing before the First Tier Tribunal."
"a possible tension in the text of the answers given by the Court and an apparent contradiction between:-
i. its seemingly categorical statement in the first part of paragraph 33 that 'periods of imprisonment cannot be taken into account for the purposes of granting the enhanced protection provided for in Article 28(3((a) ' and
ii. its seemingly defeasible statement in the second half of the same sentence (reinforced in paragraphs 35-36) that 'in principle, such periods interrupt the continuity of the period of residence for the purposes of that provision'."
"This has been a case involving complex legal submissions and I wish to note that I have been greatly assisted by the appellant being represented by counsel under the legal aid scheme."
GROUND 8: THE CASE OF B
"98. B is an Iranian national who arrived in the UK in March 2013. She claimed asylum fearing persecution for her political activities on behalf of Kurds. She was granted refugee status on 15 April 2013 and given five years leave to remain. Following her departure from Iran, her husband and son, who was born on 2 June 1997, were arrested and interrogated. They were beaten and threatened and ordered on release to give the authorities information about the claimant.
99. The claimant was understandably very anxious about her husband and son. She spoke no English and was dependent on assistance from the Iranian and Kurdish Women's Rights Organisation (IKWRO). They advised her that she might be able to apply for family reunion so that her husband and son could join her in the UK. IKWRO were unable to assist her in making an application since it was not licensed to do so and, following advice from IKWRO, she met with her present solicitor. Her solicitor recognised that there might be difficulties in that her son had no passport and there were no facilities available in Iran to enable a visa to allow entry to the UK to be obtained there. The claimant was extremely upset and worried and her inability to communicate in English made things even more difficult for her. Her solicitor was aware from the Legal Aid casework web site that family reunion was said not to be in scope for the purpose of grant of legal aid. Nevertheless, the view was taken that that might be wrong and that in any event the claimant needed legal assistance to enable her to have any real prospect of achieving family reunion.
100. If her son approached the Iranian authorities to obtain a passport, the claimant was afraid, not without good reason, that he would be arrested and ill-treated. Thus the only way he could apply for the necessary documentation to enable him to achieve entry to the UK was to go unlawfully to Turkey and apply there. This he did with his father and applications for entry clearance were made in Ankara. The applications were prepared by the claimant's solicitor on instructions from the claimant. Since the claimant's son was in Turkey unlawfully, he was afraid to leave the friend's address where he was staying and was extremely distressed. The applications for entry clearance were made in August 2013 but a decision was not made until 15 December 2013 when the claimant's husband was granted an entry clearance but their son was refused. Apart from the inexcusable delay in dealing with the application having regard to the circumstances in which the applicants were living in Turkey, the decision was extraordinary and an appeal was lodged. Islington Law Centre assisted in this. Fortunately, before an appeal was heard, on 13 February 2014 the claimant's son was granted the necessary entry clearance. Notwithstanding that, he has not been granted the necessary exit permits by the Turkish authorities. However, there is little that the UK authorities can do about that."
Is an application for family reunion in scope for legal aid?
"30. Immigration: rights to enter and remain
(1) Civil legal services provided in relation to rights to enter, and to remain in, the United Kingdom arising from -
(a) the Refugee Convention;
(b) Article 2 or 3 of the Human Rights Convention;
(c) the Temporary Protection Directive;
(d) the Qualification Directive "
" I would readily accept that in certain contexts the expression 'arising out of' may, on the ordinary and natural meaning of the words used, be the equivalent of the expression 'arising under', and not that of the wider expression 'connected with'. In my view, however, the expression 'arising out of' is, on the ordinary and natural meaning of the words used, capable, in other contexts, of being the equivalent of the wider expression 'connected with'. Whether the expression 'arising out of' has the narrower or the wider meaning in any particular case must depend on the context in which it is used."
"86. The special exception allowed by Pepper v Hart is directed at Ministerial statements in support of legislation, and then the circumstances in which reference is permissible are closely defined. It provides no support for reference to such a statement in relation to proposed legislation which was not in the event adopted."
The application of article 8 to B's case
"You have not fully completed your Annex 4 of your application form, but according to your claimed father's application form you last saw your sponsor in February 2013. You claim to have lived with your parents from birth in the same place until your sponsor left. You have provided a birth certificate, however apart from this, you have not provided any evidence that you were or are in a relationship with your sponsor. You have provided no photographs of the two of you together or any evidence of any contact at all between the two of you. I acknowledge that you have provided your sponsor's Screening interview, but this does not mention you by name. If you had been in a relationship since you were born I would expect there to be overwhelming evidence of this. I am therefore not satisfied that you have been part of a family unit of your father at the time he left his country of his habitual residence in order to seek asylum."
GROUND 9: THE CASE OF MS EDGEHILL
"115. The claimant, a Jamaican national, was admitted to the UK on 14 September 1998 as a visitor. She was granted leave to remain as a student until 31 January 2001. In March 2007 she applied for leave to remain on the ground of UK ancestry, asserting that she had been born in the UK but sent to Jamaica where she was brought up by a couple whom she believed to be her parents. The application was refused and the claimant thereupon became an overstayer. She did not leave the UK. She said she was joined by various children, one of them had a son born here in May 2008 who is a British citizen.
116. She kept in touch with the Home Office and she applied for a certificate under s.10 of the Nationality, Immigration and Asylum Act 2002 that she was entitled to remain here. This was refused on 7 March 2012. She appealed. In her notice of appeal which she filled out without legal assistance, she said, under the heading in the form asking her to state if the Home Office had suggested she could live safely in another part of her country of origin, that she disagreed. She said:-
'I have no home in another country all my family are here and I have nowhere to go. Also my parents brought me to Jamaica and left me there and this is my home.'
117. That box in the form had no application since the Home Office had not suggested she could live safely in another part of her native country. However, the First-tier judge, who dismissed her appeal, did spot that it 'alluded to her Article 8 rights'. He said he would in any event have considered them, but, because no evidence had been produced and there was no attendance before him, he dismissed her appeal on 4 June 2012. She was granted leave to appeal to the Upper Tier, but her appeal was dismissed on 7 February 2013.
118. In answering her Article 8 claim, the UTIAC considered her length of residence (which exceeded 14 years) and had regard to Paragraph 276 ADE of the Immigration Rules which came into force on 9 July 2012 and required that an applicant had lived continuously in the UK for at least 20 years in order to establish an Article 8 claim based on private life. It said:-"
' Article 8 appeals are decided on the facts as at the date of the hearing and, whilst this was a decision made before the new Rules came into effect and therefore have no direct application and not retrospective, we consider it appropriate to give weight to the new Rules as being an expression of the legislature's views as to where the public interest lies.'
119. Leave to appeal to the Court of Appeal was sought following refusal of leave by an UTIAC judge. Ground 2 raised the 14 year point, but somewhat indirectly. Beatson LJ noted that the case raised a question of principle warranting a decision by the Court of Appeal. There was another case with which it was to be joined which raised a similar point. In due course, the claimant's appeal was allowed and the other appellant's dismissed since it did not on the facts cover the same ground. The claimant is due to have a fresh appeal before the Tribunal.
120. Following Beatson LJ's grant of leave, an application for ECF was made on 19 September 2013. This was refused on 14 October 2013. First, it was said that Article 8 was not engaged since leave had not been granted on the grounds specifically relating to Article 8. However, that is to misunderstand the position since the correct approach to 14 years residence would impact on the Article 8 claim. There was also refusal on the merits since, it was said, the other case raised the same point. A review was sought, but on 30 October 2013 the refusal was upheld. The author accepted that the merits test was met save in one respect, namely that the Court of Appeal would not be considering grounds relating directly to Article 8. That maintains the same error as in the previous decision. But the author asserts that Beatson LJ stated that the appeal raised a question of principle not a point of law and that therefore there was no legal complexity. That is an extraordinary assertion since the point of principle obviously turns on the correct approach in law."
"I am clearly of the view that if the Court of Appeal gives leave to appeal, it will (provided the case is one which can attract ECF) prima facie be a case in which legal aid should be granted. The point at issue was not entirely straightforward and would affect other cases. In this case I am entirely satisfied that it should have been granted and that the reasons for refusal are flawed."
In para 122 he rightly rejected a submission, pursued without much enthusiasm by Mr Underwood QC on behalf of Ms Edgehill in this appeal, that article 6 applied to her case.
SUMMARY OF CONCLUSIONS