Gudanaviciene & Ors v Director of Legal Aid Casework & Anor

This judicial review concerned refusals by the Director of Legal Aid Casework to grant exceptional case funding under section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) in a set of immigration-related matters. The court held that the Lord Chancellor's guidance, as applied by the Director, set an unduly high threshold for funding under s.10(3)(a) and (b) and wrongly treated Article 8 procedural requirements as excluded in immigration cases. The judge concluded that the proper approach required recognition that Article 8 carries procedural obligations which in some immigration contexts may justify legal aid, and that s.10(3)(a) does not require absolute certainty of breach but a high level of probability; s.10(3)(b) requires that there be a substantial risk that refusal of funding would result in an unfair or ineffective procedure.

Accordingly, the Director's funding refusals in the six consolidated claims were quashed and the guidance was declared unlawful in the respects identified. The judge gave case-specific reasons explaining why, on the correct legal approach, some individual applicants should receive funding or have their applications reconsidered.

Background and scope: Six consolidated claims challenged refusals by the Director of Legal Aid Casework to grant exceptional case funding (ECF) under s.10 of LASPO for immigration-related matters. The claimants sought judicial review of the Director's application of the Lord Chancellor's guidance on exceptional funding. The claims raised common legal issues about the meaning and application of s.10(3) (a) and (b), the effect of Article 6 and Article 8 of the European Convention on Human Rights, the effect of Article 47 of the EU Charter of Fundamental Rights and whether the Lord Chancellor's guidance correctly represented the procedural obligations arising from those instruments.

Parties and relief sought: The claimants were individuals or their litigation friends seeking funding to obtain legal advice and representation in immigration appeals, deportation and victim-of-trafficking assessments. The defendants were the Director of Legal Aid Casework and the Lord Chancellor. The relief sought included quashing the Director's decisions refusing ECF and declarations that the relevant guidance was unlawful.

Issues framed:

• whether Article 8 procedural requirements in immigration cases can engage an obligation to provide legal aid even where Article 6 does not apply;
• the correct interpretation of s.10(3)(a) and (b) LASPO and the standard for an "exceptional case determination";
• whether Article 47(3) of the EU Charter requires a different or broader approach to funding compared with Article 6 jurisprudence;
• whether the Lord Chancellor's guidance mis-stated the law by setting an excessively high threshold (referring to certainty and a test derived from X v UK) and by treating Article 8 procedural requirements as excluded in immigration contexts;
• the application of those principles to each claimant's factual circumstances.

Court's reasoning (concise): The judge analysed Strasbourg and Union jurisprudence (including Airey, PC & S, Steel & Morris, AK & L, and relevant CJEU authority) and domestic decisions. He held that:

• Article 8 carries procedural requirements which may, in immigration cases, require legal aid to ensure effective and fair decision-making; Article 6's exclusion from immigration proceedings does not mean Article 8 procedural safeguards are irrelevant;
• s.10(3)(a) should be applied where the Director is satisfied to a high level of probability that refusal of funding would result in a breach of Convention or enforceable EU rights; certainty is not required;
• s.10(3)(b) requires consideration of whether there is a substantial risk that refusal would lead to a breach of procedural requirements rendering the remedy ineffective or unfair; the threshold adopted in the guidance was too high;
• Article 47(3) of the Charter recognises that legal aid may be necessary to ensure effective access to justice and complements the Strasbourg approach; CJEU authority supports assessing accessibility, promptness and cost-effectiveness;
• the Lord Chancellor's guidance was therefore defective in treating exceptional funding as meaningfully limited to "rare" cases defined by the guidance's wording and by relying on a test of certainty derived from X v UK.

Disposition and case-specific findings: The Director's funding refusals in all six claims were quashed. The judge identified individual factual reasons why, on the correct approach, particular claimants should receive funding or have further consideration (for example, the claimant with a young child facing deportation, the blind and incapacitated claimant, an applicant claiming victim of trafficking status, an EEA national with complicated continuous residence questions, a refugee seeking family reunion, and a claimant with a compelling Article 8 appeal to the Court of Appeal). The judge left the precise remedial orders and any further submissions on detailed relief to the parties.

This was a first-instance judicial review. The court quashed the Director's decisions refusing exceptional case funding in all six claims and found the Lord Chancellor's guidance unlawful in the respects identified. The court held that Article 8 has procedural requirements which can engage the need for legal aid in immigration contexts; s.10(3)(a) does not require certainty of breach but a high level of probability; s.10(3)(b) requires a substantial risk that refusal would make the remedy ineffective or unfair. On that legal approach, several claimants should have funding or reconsideration.