Samer Alabboud Alhasan, R (on the application of) v The Director of Legal Aid Casework & Anor

For Article 14 purposes, whether groups are in analogous situations is contextual and must be assessed by reference to the measure and its purpose. A bright-line age rule may be lawful where it pursues the legitimate aim of targeting limited legal-aid resources and has a reasonable foundation. The court must scrutinise the justification carefully, while allowing the primary decision-maker a wide margin in economic and social policy. Legal aid for an asylum interview is not required by Articles 3 or 8 merely because representation would improve participation. Exceptional Case Funding requires an objective assessment under Legal Aid, Sentencing and Punishment of Offenders Act 2012, s.10(3)(a), and a reasonableness assessment under s.10(3)(b).

The claimant made an asylum claim while under 18 but turned 18 before his substantive asylum interview. Regulation 3 of the Civil Legal Aid (Immigration Interviews) (Exceptions) Regulations 2012 provided funding for attendance at an immigration interview where the applicant was a child at the time of the interview. The Director refused Exceptional Case Funding for legal representation at the interview.

The claimant challenged both the regulation and the refusal of funding. He alleged unlawful discrimination under Article 14 of the Convention, a failure to treat materially different groups differently, common-law unreasonableness, and errors in the Director’s assessment under s.10(3) of the 2012 Act.

1. Disposition. The claim for judicial review against both defendants was dismissed. There was no order as to costs between the claimant and the Director. The claimant was ordered to pay the Lord Chancellor’s costs subject to the statutory protection applying to publicly funded parties.
2. Article 14. The court accepted that the claimant’s group and other child-claimants were in a contextually analogous situation. Comparability is not determined by the abstract fact that one group consists of children and the other of adults. It depends on the measure and its purpose. The court therefore proceeded to justification.
3. The differential treatment pursued the legitimate aim of targeting limited public resources. The relevant review required careful scrutiny, but the applicable threshold was whether the rule was manifestly without reasonable foundation. The Lord Chancellor had a wide latitude for evaluative and policy choices. Regulation 3 was reasonably founded because legal assistance at an interview is linked to the individual’s needs at the time of the interview, and age 18 was a rationally inclusive bright line for state assistance.
4. The immigration rules and Home Office guidance did not create the alleged mismatch. Rule 352ZD defined an unaccompanied asylum-seeking child for the separate provisions governing limited leave. It did not alter the definition of “child” in rules 350 to 352ZB. The Home Office policy concerning persons turning 18 before interview extended best practice where possible, but did not require legal representation or displace the statutory legal-aid scheme.
5. The alternative Thlimmenos claim could not succeed. If the differentiation between child-claimants who had and had not turned 18 was justified, treating those who had turned 18 in the same way as other adult interviewees could not produce a different result.
6. The Johnson framework assists common-law reasonableness review where a scheme contains a readily remediable arbitrary dysfunction. It requires consideration of the balance of disadvantages and advantages, consistency with the scheme’s purpose and nature, and whether an overall reasonable balance has been struck. It could not convert the unsuccessful Article 14 claim into a successful common-law claim.
7. Under s.10(3)(a), the Director applied the correct objective standard. Legal representation at the interview was not necessary to enable effective participation without obvious unfairness, having regard to the process as a whole and all the circumstances. Under s.10(3)(b), the Director reasonably concluded that there was no risk of a Convention breach and that funding was not appropriate in all the circumstances.

First-instance judicial review proceedings. The claim against both defendants was dismissed.