Rrapaj & Ors v Director of Legal Aid Casework & Anor

Legal-aid applications must identify clearly and specifically the decision or action to be challenged. The court construes the application and documents available when the funding decision was made. Later correspondence or litigation cannot cure ambiguity.

A challenge to a certification decision under the Asylum and Immigration (Treatment of Claimants etc) Act 2004 is within the general scope of paragraph 19 of Part 1 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012, subject to any applicable exclusion or exception. A challenge to removal directions, or to the administrative decision setting them, may fall within the paragraph 19(6) exclusion.

Seven claimants sought emergency legal aid for judicial review proceedings concerning removal to Italy, France or Malta under the Dublin arrangements. The Director of Legal Aid Casework refused the applications on the basis that they sought funding for challenges to removal directions, which were excluded by paragraph 19(6) of Part 1 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

The claimants argued that the applications concerned underlying certification decisions under the Asylum and Immigration (Treatment of Claimants etc) Act 2004. The central issue was whether the applications, read as a whole and as they stood when decided, sought funding to challenge removal directions or the certification decisions.

1. Disposition. The claims of Mr Omar succeeded. The claims of the other claimants failed. No decision was required on the Second Tranche claims because funding had subsequently been granted for one First Tranche claim and the parties agreed that those claims required no determination.
2. The court had to construe each emergency funding application by reference to the form and documents available before the funding decision. Subsequent correspondence, grounds of claim or grounds of resistance could not advance one interpretation of the application over another.
3. Because legal-aid entitlement depended on the decision being challenged, the applicant had to identify that decision specifically. The decision-maker was not required to infer it from urgency, the proposed benefit, the date of removal or general references to immigration proceedings. Applications that principally sought cancellation or prevention of removal, and whose supporting material addressed the safety or legality of removal, were applications concerning removal directions.
4. A certification decision under the 2004 Act was legally distinct from the decision that a person was to be removed by removal directions, and from the subsequent administrative act of setting removal directions. A properly identified challenge to certification was within paragraph 19’s general scope and was not excluded by paragraph 19(6). The decision to set removal directions was not sensibly distinguishable from the removal directions for this purpose.
5. Paragraph 19(7)(a) covered refusal to treat further representations as a fresh asylum claim. Challenges to certification decisions were either within scope generally or preserved by an exception to the exclusions. The words “no right of appeal” should not be given a restricted meaning. Paragraph 19(7)(b) was principally precautionary and did not require artificial distinctions between different certificates.
6. The court also observed that applicants should use available review, appeal and ordinary licensed-work procedures before seeking judicial review where appropriate. Refusal notices should give brief reasons explaining why an application fell outside scope, rather than merely citing the statutory provision.

This was a first-instance judicial review decision. The judgment records that Mr Fazli’s earlier judicial review challenging a 2004 Act certification decision had been dismissed for want of prosecution on 20 November 2012.