Gudanaviciene & Ors v Director of Legal Aid Casework & Anor

Exceptional legal aid under LASPO must be assessed case by case. The statutory tests do not require certainty that refusal will breach human rights, nor do they impose the exceptionally high threshold of practical impossibility. The relevant question is whether refusal creates a substantial risk that the applicant will lack an effective and fair opportunity to present the claim and obtain a just decision. Article 8 may impose procedural requirements in immigration cases even though Article 6 does not apply to immigration-status decisions. The assessment must consider vulnerability, language, capacity, complexity, evidence and the availability of authorised immigration advisers.

Six judicial review claims challenged refusals by the Director of Legal Aid Casework to grant exceptional case funding for immigration-related work. The claims concerned deportation of EU nationals, Article 8 and Article 3 claims, trafficking, refugee family reunion and an appeal involving the effect of long residence.

The claimants argued that the Lord Chancellor’s guidance under LASPO misstated the tests under section 10 and unlawfully excluded Article 8 procedural requirements in immigration cases. The court also considered whether particular refusals were unlawful on the individual facts.

1. Statutory test. Section 10(3)(a) of LASPO does not require certainty. A high level of probability that refusal of legal aid would result in a breach is sufficient. Section 10(3)(b) requires assessment of whether refusal creates a substantial risk of breach; the statutory word “risk” is not qualified by a requirement of practical impossibility.
2. Article 6 and Article 8. Immigration proceedings do not determine civil rights for Article 6 purposes, but Article 8 nevertheless carries procedural requirements. The decision-making process must provide an effective and fair opportunity to establish the claim. The guidance’s practical-impossibility and obvious-unfairness formulation set the threshold too high.
3. Article 47. Article 47(3) of the Charter requires legal aid where necessary to ensure effective access to justice. The assessment is fact-sensitive and includes fairness, the importance of the issues, legal and procedural complexity and the applicant’s capacity to present the case.
4. Relevant circumstances. The Director must consider vulnerability, language, disability, lack of capacity, emotional involvement, the need for evidence and the adversarial nature of proceedings. The statutory restriction on who may lawfully give immigration advice is important when alternative assistance is relied upon.
5. Disposition. Each refusal was quashed. The court indicated that legal aid should have been granted in several cases, including the difficult deportation, family-reunion and EU-law appeals, and directed reconsideration in others. The Lord Chancellor’s guidance was unlawful in the identified respects, with the precise form of order left for submissions.