Thompson v Director of Legal Aid Casework

Exceptional case funding under Legal Aid, Sentencing and Punishment of Offenders Act 2012 depends on whether representation is necessary for effective participation in the proceedings, not merely whether representation would improve the applicant’s prospects of success. Under section 10(3)(a), the court must assess intensively the specific facts, including the importance of the issues, legal and evidential complexity, and the applicant’s ability to present the case. The importance of deportation proceedings is significant but is not a trump card. Section 10(3)(b) creates a distinct discretion: funding may be appropriate because of a risk of breach even where refusal would not itself breach Article 8. Review of that discretionary decision applies conventional public-law principles, including a demanding rationality threshold.

The claimant, a Jamaican national married to a British citizen, challenged the refusal of exceptional case funding for her pending appeal to the First-tier Tribunal against refusal to revoke a deportation order. She argued that representation was necessary to protect her Article 8 rights and, alternatively, that funding was appropriate because of the risk of an Article 8 breach.

Her earlier judicial review challenge had led to reconsideration following the Court of Appeal’s decision in Gudanaviciene and others v The Director of Legal Aid Casework and the Lord Chancellor, [2015] 1 WLR 2247, but funding was again refused. The central issues were whether refusal would breach the procedural obligation inherent in Article 8 and whether the discretionary decision under section 10(3)(b) was unlawful.

1. Section 10(3)(a). The application for judicial review was dismissed. The question was whether, without exceptional case funding, the claimant could effectively participate in the appeal. It was not whether legal representation would improve her prospects of success. That distinction was central to the assessment under Article 8.
2. The approach in Gudanaviciene and others v The Director of Legal Aid Casework and the Lord Chancellor, [2015] 1 WLR 2247, required an intensive examination of the particular facts. Relevant matters included the importance of the issues, the complexity of the legal, procedural and evidential questions, and the applicant’s capacity to represent herself. The significance of deportation was substantial, but it was not a trump card and its weight should not be reduced merely because it commonly arose in deportation cases.
3. On the facts, the Director was entitled to conclude that the claimant could participate effectively without publicly funded representation. The legal issues were not particularly complex, the claimant and her husband had already provided relevant evidence, she spoke English, and the tribunal had experience with self-represented litigants. The claimant’s previous unsuccessful self-representation did not establish that funding was necessary for the later appeal.
4. Section 10(3)(b). This provision involved a distinct discretionary question. The structure of section 10(3) recognised that refusal might not itself breach a Convention right, while the risk of such a breach could nevertheless make funding appropriate. The Director had considered the statutory merits criteria and the relevant guidance. The challenge required the claimant to meet the high threshold applicable to rationality review, which she had not done.
5. The argument that moderate prospects of success made funding necessary was rejected. The merits assessment determined qualification under section 11 and the Regulations; it did not establish that representation was necessary for effective participation or that the section 10(3)(b) discretion had to be exercised in the claimant’s favour.

The claim was dismissed.

The judgment describes an earlier judicial review challenge to the initial refusal of exceptional case funding. Permission was granted, and the parties agreed that the Director should reconsider the application following the Court of Appeal’s decision in Gudanaviciene and others v The Director of Legal Aid Casework and the Lord Chancellor, [2015] 1 WLR 2247. The reconsidered refusal, maintained on internal review, was the subject of the present claim.