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Legal aid residence test found lawful by Court of Appeal


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UPDATE 26/2/16: permission to appeal from the Court of Appeal has been granted so the Court of Appeal judgment will not be the last word.

In Public Law Project v The Lord Chancellor [2015] EWCA Civ 1193, a judgment that contrasts markedly with that of the High Court, the Court of Appeal has allowed the Lord Chancellor’s appeal and found that the residence test for legal aid is lawful. Bindmans are acting in the case and have put out a good press release, available here: Senior judges split on legality of legal aid residence test.

Bindmans point to the mass of evidence from and about those affected by the residence test and the practical implications of the test, which the High Court had examined in detail. Not so Laws LJ giving the leading judgment in the Court of Appeal:

The Court of Appeal judgment does not discuss this or other evidence in the case. Instead, its focus is on two narrow legal issues. First, the Court finds that  ministers may use secondary legislation to  withhold legal aid from particular groups of people on cost-saving grounds alone, regardless of need. Secondly, it holds that legal aid is, in effect, a welfare benefit and so withholding on  discriminatory grounds it from some of those  who need it  just as much as others is justifiable unless ‘manifestly without  reasonable foundation’. The Court considered the test could be justified.

Permission to appeal to the Supreme Court is being sought and for what it is worth my guess is that this is a case that the Supreme Court will hear.

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.