SPM (R on the application of) v Secretary Of State For The Home Department

The common-law right of effective access to justice is assessed by asking whether arrangements create a real risk of effectively preventing access in real-world conditions. It does not ordinarily include a right to receive legal-aid services through a chosen medium, or a right to face-to-face initial advice. Remote advice may be sufficient where detainees retain access to legal advice and in-person visits remain available for further funded work. A challenge to the sufficiency or mode of provision under Legal Aid, Sentencing and Punishment of Offenders Act 2012 must confront that statutory scheme and involve the responsible decision-maker. A public-law defect will invalidate detention only if it bears on and is relevant to the decision to detain.

SPM, an asylum seeker detained under the Immigration Act 1971, challenged arrangements for legal visits at Derwentside Immigration Removal Centre between December 2021 and June 2022. During that period, initial Detained Duty Advice Scheme appointments were generally conducted by telephone or video-conference, although further funded work could include in-person visits.

Lang J dismissed the judicial review claims in [2022] EWHC 2007 (Admin). SPM appealed, arguing that the absence of practical face-to-face initial appointments created a real risk of denying effective access to justice and rendered her detention unlawful. The central issues were whether the common-law right included a right to legal advice delivered through a particular medium, whether the claim was an impermissible challenge to the statutory legal-aid scheme, and whether any breach could invalidate detention.

1. Disposition. Whipple LJ dismissed the appeal. Snowden LJ and Stuart-Smith LJ agreed.
2. Collateral challenge to the legal-aid scheme. The complaint was, in substance, that the statutory contingency arrangements for legal aid were insufficient because they did not make face-to-face Detained Duty Advice Scheme appointments economically viable. The suggested remedy was additional funding. That necessarily engaged the scheme established by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and the Lord Chancellor’s statutory responsibility for legal-aid provision. The Lord Chancellor was not a party, and SPM disavowed any challenge to the legislation. The claim could not properly be adjudicated in that form.
3. Statutory choice of delivery method. The legislation provided that an individual could not select the means by which legal services were supplied and expressly permitted delivery by telephone or electronic means. Those provisions undermined any asserted common-law entitlement to in-person legal aid. In the absence of an applicable EU or human-rights basis, the court would not review the terms of primary legislation. The appeal therefore failed on this threshold ground.
4. Real risk of denial of access to justice. The judge below gave inadequate reasons for rejecting aspects of the evidence, so Whipple LJ reviewed the evidence herself. It was accepted that in-person meetings would be more satisfactory for some vulnerable detainees and that remote communication could be less effective for some people. However, in-person meetings were not essential for effective legal advice. The authorities, including R v Secretary of State for the Home Department, ex p Leech (No 2) [1994] Q.B. 198 and R (Howard League for Penal Reform) v Lord Chancellor [2017] EWCA Civ 244, concerned the removal of impediments to access to lawyers, not the medium by which legal aid was delivered. The arrangements preserved access to initial advice, funding for in-person visits where further controlled work was opened, and some legal visits. Their shortcomings did not create a real risk of effective denial of justice. Any error by the judge was immaterial, or the same conclusion followed from the totality of the evidence.
5. Detention. Even assuming a breach of common-law rights, the detention would not thereby become unlawful. Under R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, the public-law error must bear on and be relevant to the decision to detain. The alleged deficiency in legal-service provision was conceptually and factually separate from the decision to detain. It therefore did not vitiate the detention.

• Court of Appeal (Civil Division: The court allowed the appeal to be argued on the issue of anxious scrutiny but dismissed the appeal.
• High Court of Justice, King’s Bench Division, Administrative Court: Lang J dismissed the judicial review claims in [2022] EWHC 2007 (Admin). Other issues specific to SPM’s circumstances were adjourned.