Gudanaviciene & Ors, R (on the application of) v The Director of Legal Aid Casework & Or

An exceptional case determination under Legal Aid, Sentencing and Punishment of Offenders Act 2012 section 10(3)(a) is mandatory where withholding legal services would breach

Whether civil legal aid is necessary depends on effective access to justice. The material factors are what is at stake, legal, procedural and evidential complexity, and the applicant’s ability to present the case. Article 8 procedural protections apply in immigration cases. The assessment does not impose a very high threshold or confine funding to rare and extreme cases.

The Director refused exceptional case funding to six applicants under section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, applying the Lord Chancellor’s Exceptional Funding Guidance. Collins J granted judicial review in all six claims: [2014] EWHC 1840 (Admin).

The Director and Lord Chancellor appealed in five live cases. The common issues were the meaning of section 10(3), the compatibility of the Guidance with article 6 of the Convention and article 47 of the Charter, and the procedural protection given by article 8 in immigration matters. The individual cases concerned deportation appeals, a potential trafficking victim’s referral, refugee family reunion, and an immigration appeal in the Court of Appeal.

1. Appeals allowed in part. The court upheld the declarations that the Guidance was incompatible with article 6(1) of the Convention and article 47 of the Charter, and that its immigration guidance was incompatible with article 8. It dismissed the appeals concerning Ms Gudanaviciene, Mr Reis and B, but allowed those concerning LS and Ms Edgehill.

2. Under section 10(3)(a) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the Director must grant exceptional funding if refusal would breach the applicant’s Convention or enforceable EU rights. Neither a high degree of probability nor a real-risk test may be added. Section 10(3)(b) instead gives a discretion where the Director cannot decide that question: the seriousness of the risk matters, but so do all the circumstances.

3. The governing article 6 and article 47 inquiry is whether the unrepresented person can present the case effectively and without obvious unfairness. The court must weigh the importance of the interests at stake, the complexity of the law, procedure and evidence, and the person’s capacity to conduct the case. The Guidance accurately listed many factors but unlawfully neutralised them by directing decision-makers towards rare and extreme cases.

4. Article 8 requires persons affected by immigration decisions to be sufficiently involved in the decision-making process to protect their interests. In this setting, the practical standard is the same as effective access under article 6. The fact that immigration decisions do not determine civil rights does not exclude article 8 procedural duties.

5. Applying those principles, funding was necessary for the deportation appeal of Ms Gudanaviciene, the complex residence issue in Mr Reis’s case, and B’s family-reunion applications. It was not necessary for LS to obtain a referral through the trafficking mechanism before a reasonable-grounds decision, nor for Ms Edgehill because the decisive legal issue would be advanced by a represented appellant in the linked appeal. A family-reunion right did not fall within paragraph 30 of Part 1 of Schedule 1 because it did not arise from the Refugee Convention in the relevant narrow sense.

• Court of Appeal (Civil Division): Allowed the Director’s appeals in LS and Edgehill, and dismissed the appeals in Gudanaviciene, Reis and B.
• Administrative Court: Collins J granted judicial review in the six conjoined claims and held the Guidance unlawful: [2014] EWHC 1840 (Admin). This court affirmed that conclusion concerning the Guidance, subject to its different construction of section 10(3) and its conclusions in LS and Edgehill.