Gudanaviciene and others v Director of Legal Aid Casework and another: Queen's Bench Division, Administrative Court (London): 13 June 2014
Immigration proceedings - Claimants challenging first defendant Director of Legal Aid Casework's decisions refusing to grant legal aid for immigration proceedings
Six claims were heard together in which each claimant challenged the defendant Director of Legal Aid Casework's (the director) decisions refusing to grant legal aid. The first and third claimants were European Union nationals with criminal convictions at risk of deportation.
The second claimant was a Nigerian national who lacked capacity and was seeking to raise claims under articles 3 and 8 of the European Convention on Human Rights (the convention). The fourth claimant was an Iranian national, seeking family reunion with her husband and son.
The fifth claimant was a Jamaican national, seeking leave to remain on the ground of UK ancestry. The sixth claimant Nigerian national contended that he was a victim of trafficking.
The claimants contended that the policy adopted by the director, which applied guidance issued by the second defendant lord chancellor (the guidance) was wrong in law, in being too restrictive. The overarching question posed in the guidance was whether the withholding of legal aid would make the assertion of the claim 'practically impossible' or lead to an obvious unfairness in proceedings.
Further, the claimants asserted that, in their cases, having regard to the circumstances, the refusal to grant legal aid had been wrong.
The issues said to be common to several of the claimants' pleaded cases included consideration as to: (i) whether article 8 of the convention, either alone or in conjunction with article 14 of the convention, required the provision of legal aid to avoid a breach where article 6 of the convention did not also apply and, if so, in what circumstances; (ii) the circumstances in which article 47 of the Charter of Fundamental Rights of the European Union (the charter) required the provision of legal aid and how, if at all, there was a difference from what article 6 of the convention required; (iii) whether the guidance properly identified and reflected the procedural requirements of article 8 of the convention and article 47 of the charter; (iv) what were the proper ingredients of the tests to be applied in section 10(3)(a) and (b) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (the act); and (v) whether the guidance properly stated the tests to be applied in making an exceptional case determination.
The applications would be allowed.
It was clear that the key considerations were that there had to be effective access to a court and that there had to be overall fairness in order that the requirements of article 6 of the convention were met. One aspect of effective access had to be the ability of a party to present all necessary evidence to make his case, and to understand and be able to engage with the process. The words 'practically impossible' set the standard at too high a level, but the threshold was relatively high.
There might be cases in which a failure to grant legal aid might breach minimum standards so that the guidance was erroneous. If legal aid was needed to provide that the procedure was effective and fair, in dealing with rights under article 8 of the convention, it would have to be provided. Article 47 of the charter provided that legal aid shall be provided insofar as necessary to ensure effective access to justice.
That was a clear recognition that legal aid might be required and so went, to that extent, beyond article 6 of the convention, since that article only required legal aid in criminal cases. It was apparent that article 47(3) of the charter did not set a standard which was lower than applicable to article 6 of the convention. However, provided that the effectiveness and fairness criteria were properly applied, it did not necessarily set a higher standard.
Since section 10(3) of the act was concerned with procedure intended to prevent a breach of rights under the Convention, the 'breach' referred to in section 10(3) of the act had to refer to a breach of the procedural requirements inherent in any article and not breach of the substantive right itself. Certainty was not the appropriate test, nor did the language used in section 10(3)(a) of the act require it.
In order to establish a breach of a human right, an individual had to establish, on the balance of probabilities, that such a breach had occurred. European Court of Human Rights (the ECtHR) jurisprudence suggested that a high level of probability was required. There was no reason why that should not be applied in section 10(3)(a) of the act, since parliament had to be taken to have appreciated that that had been how breaches could be established.
Therefore, if the director was satisfied that legal aid was, in principle, needed when its refusal would, to a high level of probability, result in a breach, section 10(3)(a) of the act was met, and means and merits would determine whether legal aid was to be granted and to what extent.
With respect to the test in section 10(3)(b) of the act, in general immigration cases, there was no good reason to apply a lower procedural standard nor did it seem that a risk of breach need be any higher than comprehended in the real risk test routinely applied by the ECtHR.
However, in articles from which derogation was possible, the risk could properly be considered to be the risk of a flagrant breach, which did apply a somewhat higher test than a real possibility or a risk that was more than fanciful.
If legal aid was to be refused, there had to be a substantial risk that there would be a breach of the procedural requirements because there would be an inability for the individual to have an effective and fair opportunity to establish his claim. That principle would apply whether there were court or tribunal proceedings, or a decision from the Home Office (see , , , , , ,  of the judgment).
It followed that the guidance was defective in that it set too high a threshold, failed to recognise that article 8 of the convention did apply, even in immigration cases and, despite the exclusion of article 6 of the convention, carried with it procedural requirements, which had to be taken into account. With respect to the individual claimants, the decisions to refuse them legal aid had essentially been based on the guidance, which had put the threshold far too high.
With respect to the fourth claimant, even if the guidance had been correct, to refuse legal aid in her circumstances had been unreasonable. With respect to the fifth claimant, legal aid should have been granted and the reasons for refusal were flawed (see , , , , , ,  of the judgment).
The director's decisions in each of the claims would be quashed and the guidance was unlawful in the respects indicated (see  of the judgment).
X v United Kingdom 6 EHRR 136 disapproved; M v Director of Legal Aid Casework  All ER (D) 40 (May) doubted.
Richard Drabble QC, Ranjiv Khubber and Joseph Markus (instructed by Turpin Miller LLP) for the first claimant; Philipa Kaufmann QC and Chris Buttler (instructed by Public Law Project) for the second claimant; Tim Buley and Alistair Mills (instructed by Duncan Lewis (Solicitors) Ltd) for the third claimant; Paul Bowen QC and Alison Pickup (instructed by Islington Law Centre) for the fourth claimant; Ashley Underwood QC and Adam Tear (solicitor advocate) (instructed by Duncan Lewis (Solicitors) Ltd) for the fifth claimant; Paul Bowen QC and Catherine Meredith (instructed by Anti Trafficking and Labour Exploitation Unity) for the sixth claimant; Martin Chamberlain QC, Sarah Love and Malcolm Birdling (instructed by the Treasury Solicitor) for the defendants.