England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		02/07/2013

MR JUSTICE OUSELEY :

1. These seven cases have been listed together for a rolled-up hearing because they were thought to raise important common issues about the interpretation or application of the new legal aid provisions in Part 1 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012, LASPOA. I grant permission.
2. Six of the seven Claimants had brought proceedings challenging, to put it neutrally at this stage, removal action taken by the Secretary of State for the Home Department. Those actions are not before me. In the seventh, Hamed Fazli, that claim was brought in the same proceedings as the legal aid challenge. However, the part of his claim against the SSHD is not before me.
3. Each Claimant had applied for legal aid to bring those challenges but it had been refused by the Director of Legal Aid Casework, as the Defendant in this type of case is properly called. It is those refusals which are the subject of the first group of challenges before me. They have been called the First Tranche claims.
4. There were further challenges brought by four of the seven Claimants to the refusal by the Director of Legal Aid Casework of legal aid to bring the First Tranche claims. However, he later did grant legal aid sufficient to enable one First Tranche claim to be brought and the parties agreed that no decision was now required on the Second Tranche claims. I will hear Counsel on the terms of disposal of those latter claims.
5. The Claimants were illegal entrants. Italy, in five cases, France and Malta in the other two, had accepted responsibility for considering their asylum claims substantively. Their claims had accordingly been certified under paragraphs 4 and 5 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004; removal directions were set. Judicial review proceedings were launched on a variety of bases. Legal aid was sought for those proceedings but refused by the Defendant. In each instance, he treated the challenge as a challenge to the removal directions.

The relevant statutory provisions

6. Section 9 of LASPOA provides for civil legal services to be available to an individual if they are civil legal services as described in paragraph 19 of Schedule 1 and if the Director has decided that the individual qualifies for those services. S10 deals with exceptional cases, which are not within Part 1 of Schedule 1. An exceptional case determination is required where the non-provision of such services would itself breach ECHR or EU rights; this does not apply simply because legal aid is sought in connection with some other asserted Convention or EU rights.
7. Paragraph 19 in Part 1 of Schedule 1 covers judicial review, in broad and general terms bringing judicial review within the scope of civil legal services. There are then various specific exclusions. The immigration case exclusions in sub-paragraphs (5) - (7) are as follows:

"(5) The services described in sub-paragraph (1) do not include services provided in relation to judicial review in respect of an issue relating to immigration where –"

(a) the same issue, or substantially the same issue, was the subject of a previous judicial review or an appeal to a court or tribunal,

(b) on the determination of the previous judicial review or appeal (or, if there was more than one, the latest one), the court, tribunal or other person hearing the case found against the applicant or appellant on that issue, and

(c) the services in relation to the new judicial review are provided before the end of the period of 1 year beginning with the day of that determination.

(6) The services described in sub-paragraph (1) do not include services provided in relation to judicial review of removal directions in respect of an individual where the directions were given not more than 1 year after the latest of the following –

(a) the making of the decision (or, if there was more than one, the latest decision) to remove the individual from the United Kingdom by way of removal directions;

(b) the refusal of leave to appeal against that decision;

(c) the determination or withdrawal of an appeal against that decision.

(7) Sub-paragraphs (5) and (6) do not exclude services provided to an individual in relation to -

(a) judicial review of a negative decision in relation to an asylum application (within the meaning of the EU Procedures Directive) where there is no right of appeal to the First-tier Tribunal against the decision;

(b) judicial review of certification under section 94 or 96 of the Nationality, Immigration and Asylum Act 2002 (certificate preventing or restricting appeal of immigration decision)."

These changes came into effect on 1 April 2013.

The proceedings

8. The applications for emergency legal aid were made on the designated CIV APP 6 form, and were considered by the dedicated team within the Legal Aid Agency, that is the Asylum and Immigration Special Cases Unit. The applications were refused because they were, or were seen as, challenges to the removal directions, brought within a year of the decisions to remove the Claimants, and so excluded from the scope of civil legal services under paragraph 19(6)(a). The First Tranche claims were then brought. Mr Fazli's claim is considered in more detail later.
9. No applications were made for a review of the refusal of emergency funding under Regulation 44 of the Civil Legal Aid (Procedures) Regulations SI 2012 No. 3098. Only in the case of Mr Hamad was an application for exceptional funding made, albeit unsuccessfully.
10. The exchange of Skeleton Arguments showed that the real issue was not so much about the scope of paragraph 19 but concerned the nature of the proceedings for which the applications for emergency funding had been made. The Director, through his delegate in the specialist team, had refused the applications for emergency funding because the applications were interpreted as being for funding to challenge removal directions. Such challenges fell outside the scope of paragraph 19 by virtue of the specific exclusion in paragraph 19(6). That much is not in doubt. The Claimants said in their Skeleton Arguments that the applications were for funding to challenge the "refusals to consider the asylum claims substantively and ... the decisions to remove to third countries". The Director had responded in later Summary Grounds of Resistance that, if not a challenge to the removal directions themselves, the challenges were to appealable rather than judicially reviewable immigration decisions under s82 of the Nationality, Immigration and Asylum act 2002. The Claimants say that they thought that the Director had interpreted the applications in the way in which the Claimants say they should be interpreted, and had refused them on that basis; if so a significant issue did arise as to the interpretation of paragraph 19 and what was or was not a challenge to removal directions. The Director contended that it was only later that the Claimants made it clear that they had intended to seek funding to challenge the 2004 Act certification decisions. He did not dispute that such challenges were within the scope of paragraph 19 and were not excluded by sub-paragraphs 5 and 6.
11. On 10 May 2013, the Defendant wrote to the two firms of solicitors involved saying that, had the applications been for legal aid to challenge the decisions of the Secretary of State for the Home Department to certify the claims under the 2004 Act, they would not have been excluded from the scope of paragraph 19 of Schedule 1 to LASPOA, nor would related applications for urgent consideration or interim relief to stay removal pursuant to the removal directions. That position was maintained before me. The seemingly important issue as to the scope of the limitation on funding challenges to removal directions largely evaporated. The issue therefore became the narrow one of what the application forms actually meant.

The issue

12. Were these applications for funding to challenge removal directions, in which case the decisions were correct, or were they applications for funding to challenge the underlying certifying decisions, in which case the Defendant's decisions were unlawful?
13. I confine my attention to the terms of the application and any documents accompanying or elaborating it, before the decision was reached. Subsequent correspondence, notably pre-action protocol correspondence or grounds of claim or resistance, cannot advance one interpretation or another of the application form. It is for the Court to construe these forms, rather than to judge whether the Defendant's interpretation was merely a reasonable one. In practice though, in these cases, it makes very little difference.
14. It is not necessary to set out the contents of each of the forms, although I have considered them individually. There is no one specific box in which the applicant for funding has to identify what decision is being challenged. That is a significant drawback to clarity in the application where funding depends on what decision is being challenged, and the array of possible decisions being challenged in any individual case may include those which are or are not excluded from the scope of paragraph 19, or which may fall within the exception to the exclusions. But that said, the need to identify the decision being challenged so as to show that it falls within the scope of the funding provisions, means the applicant specifically must set it out somewhere, and ought not to expect it to be inferred from other indicia. However, that is how it was left in the first six cases, the Duncan Lewis cases.
15. There is a box on the form marked "Application summary"; the part in it marked "proceedings" was variously left blank, marked "immigration", or "immigration injunction-Dublin II" or "Judicial Review Proceedings". The section in that box marked "Urgency" invariably referred to the imminence of the operation of the removal directions. That is perfectly understandable, and I would not expect to see the decision challenged specified in answer to that point.
16. Page 2 contains the box for the "Statement of Case", and it is there that I would expect to see the decision being challenged identified in answer to the question "What is the main purpose of this application?" The answers sometimes referred to an attached document.
17. In Mr Rrapaj's case, this document recites the immigration history, and the certifying decision is mentioned, but given no greater significance than the removal directions in the paragraph in which it is mentioned. The last paragraph concerns only the removal directions. The question in the Statement of Case" box, "Unquantifiable claims: What benefit is your client hoping to obtain, and why is this important to the client?" was answered by reference to the cancellation of the removal directions, and substantive consideration of his asylum claim in the UK.
18. The box for "Merits" asks for "Relevant key dates", "All other relevant information" and "Why is the case urgent?" In Mr Rrapaj's case, the answers to the last two points all related to the removal directions, correctly in the case of the last question, from which again no inference as to the subject matter of the application can be drawn. The key date was 3 April, stated to be the date of the SSHD's decision to remove him to Italy. This was also the date of the removal directions.
19. I do not think that the two fleeting references to the certifying decision, or substantive consideration of the asylum claim, one in language which could equally easily have referred to a decision to set removal directions, can suffice to show that this was an application for funding to challenge the certifying decision in the face of all the other indications. This was an application which I read, and the Defendant was entitled to read, as an application for funding to challenge the removal direction themselves.
20. Mr Marufian's application was stated to be for the purpose of cancelling removal directions and that was the benefit he hoped to obtain from the proceedings. The reason for wanting the removal directions cancelled was to prevent a breach of Article 3 in Italy. Other relevant information included the fact that the SSHD was maintaining her stance. The key date was the date set for removal. The case was urgent for the same reason as in Mr Rrapaj's case. The unquantifiable benefits section referred to further documents. One was a further letter from the SSHD refusing further representations as a human rights claim, and certifying it as clearly unfounded. The other was an analysis of why the funding claim should be allowed, by reference to human rights, the ineffectiveness of an out of country appeal, and the comparative advantage of judicial review as an alternative remedy. The document argued that the merits criteria applied since "the Secretary of State's proposed act of removing the client to Italy is susceptible to challenge" and "The judicial Review proceedings would challenge the actual act of removal itself" and would argue that removal would breach Article 3. (Underlining in original). It continued that "The full remedy that our Client seeks through us, acting solicitors, is that his removal to Italy…be stopped." An appeal would not provide the full remedy but judicial review would "be able to address a substantive part (the removal itself) of the client's challenge and argue that his removal to Italy would not be safe on third country grounds." It then referred to other cases in which removal had been stayed.
21. I do not see how the Defendant could have read that as a whole other than as seeking funding for a challenge to the removal directions. The expressed aim that the removal directions be "cancelled" rather than "quashed" is a poor indicator that the real aim was to obtain the quashing of some other decision or act, which therefore must have been the certifying decision, and so that must have been the decision challenged and for which funding was sought. That contention verged on the fanciful.
22. The Statement of Case in Mr Omar's application said that its purpose was to prevent his removal, since the out of country appeal would be too late to prevent a breach of his human rights in Italy. The benefit he sought was preventing his removal and thereby the protection of his human rights. The key date was the date of removal. He added that the SSHD had refused to cancel the removal directions. Counsel's opinion on the merits of the case against the SSHD was attached; there may be an issue about what the attachment referred to in the answer to "All relevant information" was. But Duncan Lewis' skeleton argument says that it was the opinion, and I am prepared to accept that. The bulk of the opinion deals with the stays in other Dublin II removal cases to Italy. But the introduction makes clear that the decision being challenged is the certifying decision of the SSHD.
23. Read as a whole, and taking the opinion into that reading, this was an application for funding to challenge that decision, and was in scope. The Defendant refused it wrongly. It would have been better if that decision had been highlighted on the application form itself.
24. Mr Imran described the unquantifiable benefits as being "Judicial Review against removal directions to Italy …" The form itself gives no further indication about the challenge, but attached to it, and referred to in the Statement of Case, was a Statement prepared by Duncan Lewis, which starts by stating that the challenge is to the SSHD's decision to certify the asylum claim under the 2004 act, and to set removal directions. Again much of it is devoted to the cases dealing with stays. That claim on the face of it is clearly within the scope of paragraph 19, and outside the scope of exclusion. However, before the funding decision was made, Duncan Lewis emailed the Defendant saying that as the client had not claimed asylum in the UK, and there was no certification on third country grounds: "His challenge to removal is that it would breach his Art.3 Rights." This was repeated later that day in a further email. Mr Chamberlain QC for the Defendant is right that the Claimant's written submissions do not deal with these emails.
25. In the light of those emails, I do not see how it can be contended that the decision to challenge which legal funding was sought was the certification and not the removal directions alone.
26. Mr Abdulsattar stated the main purpose of his application as being "to prevent [his] removal from the UK to France". This was because he had a German wife in the UK exercising EU Treaty rights. Avoiding the break-up of this family was the main benefit he hoped to achieve. An email exchange, attached to the application, between solicitor and counsel, showed that if removal directions were not cancelled, judicial review should be considered.
27. I do not see that as an application other than for funding to challenge removal directions. There may be some uncertainty, but that is for the applicant to resolve and it is not for the recipient decision-maker to have to guess at his intentions.
28. Mr Hamad saw as the benefit of his claim that removal directions would be cancelled and his asylum claim would be considered in the UK, as he feared that Malta would return him to Libya. Key dates were two decisions, one of 3 April, certifying the claim on safe third country grounds, and the other of 9 April certifying as clearly unfounded the human rights claim in the letter before action to the SSHD. The Statement of Case invited the reader to the attached case facts. This was or was mainly the certifying letter of 9 April. It was there to set out the facts. It was not there as the decision being challenged. The original certifying letter was not included.
29. I regard again as far-fetched the suggestion that the reader should have discerned from the fact that the application referred to the "cancellation" of removal directions, rather than to their "quashing" that the challenge was not to the directions. Read as a whole this is an application for funding to challenge removal directions. There is modest scope for some uncertainty over what exactly was being challenged, but that was for the applicant to resolve, not the reader. The decision on the emergency application was correct.
30. The Claimant pointed to the exceptional case funding decision of 18 April 2013, 8 days after the application at issue was refused as excluded by sub-paragraph 19(6). This decision describes the excluded matter, that the Defendant had been asked to consider, as the challenge to the SSHD's decision dated 3 April "to certify his claim under" the 2004 Act and to remove him to Malta under Dublin II." The Claimant says that this shows that the Defendant had understood what the original application for funding had sought, and that the Defendant had treated it as excluded by sub-paragraph 19(6). Thereafter his position had changed.
31. I have not seen, at least so far as I can tell from the somewhat muddled 404 page bundle, the actual application for exceptional funding, and so cannot compare it with the application for emergency funding. Paragraph 10 (a) (iii) of the Summary Grounds of Resistance does not really grapple with the potential significance of the assertion that there was a challenge to the certification, and treats the challenge referred to in the decision of 18 April 2013 as a challenge to the decision to remove, which it says is an appealable immigration decision, and so not reviewable. It seems to me that, although the Defendant is right about the interpretation of the original application, by the time of decision on this exceptional funding application, the Defendant should have said that, if that were the application that had been intended originally, emergency funding would have been granted. It would have saved a lot of debate. I am not prepared to conclude, however, that that letter shows that in this case or more generally, the Defendant had changed his original stance on what was covered and what was excluded by paragraph, 19 at the time of the original decision.
32. I reject the submission that the Defendant's case, taken as a whole, shows that he in fact misunderstood the way in which paragraph 19 was to operate, until Mr Chamberlain came to his rescue. His arrival may have enabled the parties to realise that they were at cross purposes, and why. But, taking the Defendant's 16 April 2013 pre-action protocol reply in the case of Mr Omar as an example of his thinking, the Defendant is plainly aware that this is a case in which the SSHD has certified the claim under the 2004 Act. The purpose of the references to sub-paragraph 19(7) is to counter any contention that the exceptions in 19(7) to the exclusions in 19(6) applied. He considers 19(7) because of his view that 19(6) does exclude the application. In that case the application was seen, albeit erroneously as I have found, as an application for funding for a challenge to removal directions. The Defendant does not say that it is not for a challenge to the certification, but it is clear that he does not see it as such a challenge, which is why he goes on to consider the exceptions to the exclusions. The position, if in doubt, was made clear two days later in the Summary Grounds of Resistance in Mr Rrapaj's case. Indeed, the Claimants themselves raised and persisted with sub-paragraph 19(7) as an answer to the refusals as they occurred; see an early example of the pre-action protocol contentions in Mr Imran's case on 11 April 2013.
33. I am not persuaded by the Claimants as a matter of approach that the Defendant should try to ascertain the meaning of applications on the basis that the applicant solicitor knows the law, and would not make applications to obtain legal aid, which were bound to fail. In each of these cases, the quashing of removal directions would be at least temporarily effective; and it is difficult to see what purpose the change in the legislation was intended to have if no one ever made applications to quash removal directions. There were perfectly good reasons why quashing removal directions to Italy would have been a realistic remedy in the light of the decisions of the Court of Appeal extending stays in EM (Eritriea) and AB (Sudan). So applications for funding such challenges would not be unexpected, particularly soon after the change in funding came into effect. If solicitors are to be taken to know the funding law, it is surprising that the applications were at best very unclear, or framed the way they were.

Hamed Fazli

34. I now turn to deal with the specific arguments raised by Mr Bedford for this Claimant.
35. Mr Fazli's asylum claim was certified under paragraphs 4 and 5 of Schedule 3 to the 2004 Act by letter dated 19 April 2012. Judicial review proceedings challenging that decision were dismissed on 20 November 2012 for want of prosecution. By form IS151A dated 20 March 2013 he was notified of the immigration decision to remove him by removal directions. This form stated that the decision was appealable but only once Mr Fazli had left the country. This decision carried an out of country appeal. Removal directions were also set on 20 March 2013, but later deferred. On 28 March 2013, removal directions were set, again for 9 April 2013.
36. An application for emergency funding was made by Sultan Lloyd, now acting instead of Luqmani Thompson, on 2 April 2013. The Statement of Case and "All other relevant information" referred to advice attached from Mr Bedford. No unquantifiable benefits were identified, nor any key dates.
37. This attached advice stated in paragraph 1 that it related to funding to challenge "the decision of the Secretary of State on 20 March 2013 to set removal directions for his removal to Italy on Thursday 4 April 2013 at 07.00hrs, on third country grounds under Dublin II Regulations." The advice referred to the potential for a claim that the Claimant, if a minor, could not be removed under Dublin II in the light of the Advocate-General's supportive opinion in the reference in MA. A second possible claim was that the decision of the Court of Appeal staying Dublin II removals to Italy supported a stay on removal in this case. But the drawback was that the previous claim, initiated on the basis that the Claimant was a child, had been dismissed for want of prosecution after a local authority decision that he was an adult. The challenge to the third country decision was a long way out of time and the absence of challenge to the decision that he was an adult would need to be explained. Nonetheless, Mr Bedford advised that "an application to stay the removal planned for 4 April 2013" would succeed in the light of the Court of Appeal decisions on stays in Dublin II cases on removal to Italy. It was reasonable to grant funding for a claim to be made on the EM (Eritrea) ground, i.e. the stay of removal ground. If it were decided to challenge the adult age assessment out of time, that challenge could be brought in "the context of new proceedings to set aside the third country decision and stay removal directions…".
38. This funding application was refused by the Defendant on 2 April 2013 on the shortly stated ground that it was excluded by sub-paragraphs 19(5) and/or (6).
39. The pre-action protocol letter of 3 April 2013 said that the decisions to challenge which funding had been refused were those of the SSHD of 19 April 2012, the certifying decision (which had already been challenged), and the decision of 28 March 2013, which set removal directions. The detailed reasoning in this letter however related only to the 19 April 2012 decision, which was said to fall within the exceptions in sub-paragraph 19(7) to the exclusion in sub-paragraph 19(6), as it was a negative decision on an asylum application without right of appeal, and in any event funding was required by Article 15 of the Procedures Directive, Council Directive 2005/85/EC. But neither of these was the decision in relation to which Mr Bedford's advice, attached to the application, said funding was sought, as its first paragraph had made clear.
40. On 8 April 2013, judicial review proceedings were commenced challenging the 19 April 2012 decision (again), the SSHD's "decision of 28 March 2013 to set removal directions for 9 April 2013", and the Director's funding decision of 2 April 2013. This was said to be an unlawful refusal of funding because the application fell within the exception to the exclusions, and there was a right to funding under the Procedures Directive. The grounds pointed out correctly that funding had been refused on scope not on merits. Although neither SSHD decision now challenged had been the subject of a funding application, the 28 March 2013 decision replaced the 20 March 2013 decision "to set removal directions".
41. The primary issue is how the emergency application form should have been understood. This cannot be judged by reference to material post-dating the decision. In this case, the form itself is of no assistance. The challenge for which funding was sought could only be discerned from Mr Bedford's advice. Paragraph 1 is quite clear: it is a challenge to the decision to set removal directions; this paragraph makes no reference to either of the decisions referred to in the letter before claim to the Defendant. Paragraph 14 of the opinion is equally clear.
42. Other paragraphs in this advice reflect what cannot yet be done. Paragraphs 12 and 15 say that an explanation for the absence of a challenge to the adult age assessment is required, and a decision to bring such a challenge must be made. Paragraph 13 suggests that an application to stay removal can be made regardless of the difficulties in a second and out of time challenge to an earlier decision. Paragraph 15 envisages new proceedings to challenge the April 2012 decision and to stay removal directions as the context for an age assessment challenge if it is made. That could be read as saying that new proceedings to set aside the 2012 decision awaited a decision on challenging the age assessment or as saying that they were being brought anyway. The former seems to me the more natural reading. Either way, paragraph 1 is quite clear. It would have been very odd to interpret an application for emergency funding made in April 2013, as relating to a decision of April 2012 which had already been challenged. I see no justification for Mr Bedford's contention that the Defendant should have realised that Mr Fazli needed to challenge the April 2012 decision again, and must therefore have been applying for funding in order to do so. I read the form and advice as a whole as seeking funding to challenge the decision to set removal directions on 20 March 2013, since that is the clearest statement which the Claimant provided.
43. So the question for the Defendant was whether that challenge was in scope or, if not, nonetheless within the exceptions to the exclusions.
44. There is plainly an important difference between what may be two contemporaneous decisions: the first, an immigration decision that someone whose asylum claim had already been certified on third country grounds under Dublin II is to be removed by way of removal directions; the second, the decision to set removal directions for this removal, not sensibly distinguishable from the removal directions themselves. Removal directions are not set without some administrative decision to set them for a particular date, time and carrier. It is the second, which is excluded from scope by sub-paragraph 19(6). Mr Bedford's advice sought funding for a challenge to the latter. The Defendant's decision was correct.
45. Mr Bedford submitted, Mr Chamberlain made no submissions either way, and I accept, that a decision certifying an asylum claim on safe third country grounds, under Dublin II, is a decision within Article 39(1)(a)(iii) of the Procedures Directive. This means that an effective remedy before a Court must be provided. That, in this sort of case, is provided by judicial review. On Mr Chamberlain's approach, this is within paragraph 19 without the need for reliance on any exception to the exclusions, since it would not be within the scope of the exclusions. However, if the claim were to fall outside the scope of paragraph 19, or if it were excluded under sub-paragraph 19(5) or (6) but not brought back in by sub-paragraph 19(7), it would fall within the "exceptional case" funding under s10(3)(a)(ii) of LASPOA. Had the application been interpreted as seeking funding for a judicial review challenge to the April 2012 certification decision, it would have been in scope, subject to exclusion or exception, but then subject to a merits test.
46. This does raise issues about the meaning and effect of the exceptions in sub-paragraph 19(7) to the exclusions in sub-paragraphs 19(5) and (6). If Mr Chamberlain is right, and I agree that he is, why was 19(7)(b) necessary at all if certifying decisions are within scope and not excluded by 19(5) or (6)? Does 19(7)(a) make an exception to the exclusion only where there is no right of appeal at all and not where the right of appeal is restricted to an out of country appeal? If so, how does that square with (7)(b), where the certificate restrict rights of appeal but does not prevent an out of country appeal?
47. These are my views. First, 19(7)(a) clearly covers the refusal to treat further representations as a fresh asylum claim. Second, challenges to certificate decisions are either in scope or an exception to an exclusion. I see no reason therefore to give a restricted meaning to the clear words "no right of appeal", since it is accepted that decisions limiting the right of appeal in asylum cases are within scope anyway. Where there is a restricted right of appeal, arising from judicially reviewable certifying decisions, those certifying decisions are either in scope generally or excepted from exclusions. Any funding provision required by the Procedures Directive is met by the general scope of paragraph 19, and is unfettered by exclusions. Third, I conclude that 7(b) is more by way of caution than a basis for drawing distinctions between challenges to types of certificate. The exception may be unnecessary, but there are greater problems in trying to define exclusions by reference to the need for exceptions, rather than relying on the broad and general scope of paragraph 19.
48. For those reasons, I allow the claims in Mr Omar's case and dismiss them in the others.

Observations

49. There are a number of lessons to be learned from this unnecessary litigation, although it may have served to highlight the change in the provision of legal aid and how it is to be applied for. The statutory language requires the clear and specific identification of the decisions and actions to challenge which funding is sought. Decisions that someone should be removed by way of removal directions fall within the scope of s82(2)(g) of the Nationality, Immigration and Asylum Act 2002; s82 lists the appealable immigration decisions. Subsequent sections make provision for in or out of country appeals. There are certification decisions which affect the availability of in country appeals, as here. There are also removal directions, which can be challenged by way of judicial review, but cannot be funded where the exclusions apply. There are also decisions to set removal directions, which as I have explained are not distinguishable from the removal directions but have to be carefully distinguished from the decision that someone is to be removed by removal directions. The clear and specific identification of the decision being challenged also matters because it is relevant to the funding merits test.
50. The decisions on the applications are made by case workers, who cannot be expected to read into a document what the applicant has not himself put in or put in clearly enough. It ought not to be for subsequent correspondence, let alone litigation, to make clear the challenge for which funding is sought. I add, however, that given the significance which the new LASPOA provisions give to the precise nature of the decision challenged, the application form ought to be amended to include a specific box in which that is spelt out. The decision-making time for emergency applications is perforce short. But it is still necessary for applicants to bear in mind that the reasons why time is short, the effect of the decision challenged, the Statement of Case, and the benefit to the Claimant, are all matters which the application form requires to be stated. The specific decision being challenged should appear clearly in at least one of those, most obviously in the Statement of Case.
51. Once the removal directions were cancelled, as happened in all of the cases, and the cases were no longer urgent, the Claimants could, and says the Defendant should, have made substantive ordinary applications for Licensed Work under Part 4 of the 2012 Regulations. This would have given the Claimants the opportunity to explain exactly what decisions they were seeking to challenge, and could have led to administrative review, if unsuccessful. The submissions of Mr Chamberlain about the alternative and preferable remedies have real force. While exceptional funding applications were not on the face of it available, the use of the review system and, after the cancellation of removal directions, the ordinary licensed work applications, would have saved court time and resource, and are obviously the first ports of call before judicial review is sought. The review process, or appeal where available, should be used rather than judicial review, though I appreciate that the crossed purposes between Claimant and Defendant led to what would have been a reasonable way of resolving an issue of apparent importance. This court should not be used to resolve factual disputes as to what the applications were for, construing emergency applications with the benefit of several pages of submissions from silks.
52. Finally, Regulation 50 of the 2012 Procedures Regulations applies to emergency applications. Regulation 43 of the Regulations requires written notice of the decision, with reasons, in specified circumstances applicable here, where the funding application is refused because it is not in scope. Notice of the right to seek a review and information about alternative funding is also required. Although failures in this respect were not, in the claim form, made the subject of a challenge, which would in any event be redundant now, there is force in the submission that the decision on the merits by the Defendant is insufficiently reasoned by a mere reference to the statutory provision under which the refusal was made. I appreciate the need for speed, and the avoidance of anything approaching elaboration. But a short reference to the reason why an application fell outside the scope of a provision could well have solved these problems. It only needed to say that the application fell into the exclusion in sub-paragraph 19(6) since it was an application for funding a challenge to the removal directions.