- BY Colin Yeo
Refusal of legal aid held unlawful
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In a big win for legal aid lawyers and their clients, the High Court has held to be unlawful the refusal of legal aid in six test cases and has additionally held unlawful the guidance applied by the Legal Aid Agency in refusing legal aid:
It follows from what I have so far said that in my view the Guidance is defective in that it sets too high a threshold and fails to recognise that Article 8 does apply even in immigration cases and, despite the exclusion of Article 6, carries with it procedural requirements which must be taken into account.
The case is Gudanaviciene & Ors v Director of Legal Aid Casework & Anor [2014] EWHC 1840 (Admin). Permission was granted to the Legal Aid Agency and Lord Chancellor to appeal to the Court of Appeal so, while this is a nice boost for the weekend of legal aid lawyers everywhere, it is not likely to be the final say the courts have on the matter.
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Quite aside from the main issue is this important ruling that Family Reunion is in scope- as a matter of statutory interpretation not Article 8…
104.The words which are central to the claimant’s main submission that family reunion is in scope are “arising from”. Mr Chamberlain sought to rely on Pepper v Hart [1993] A.C. 593 to enable him to put before me extracts from Hansard which he submitted showed that it was Parliament’s intention to exclude family reunion from the scope of legal aid. In order to enable reference to Hansard, there must be an ambiguity in the provision in question. Furthermore, if there is an ambiguity so that ministerial observations can be referred to, they must clearly show the intention on which it is sought to rely.
105. I am satisfied that there is no ambiguity. The expression “arising from” is one which has a wide meaning and is to be contrasted with wording such as ‘conferred by’ or ‘contained in’. If it had been intended to limit the scope of access to legal aid as contended for by Mr Chamberlain, a narrower expression could and should have been used. A person who is recognised as a refugee has a right conferred by the Immigration Rules for family unity. As a matter of ordinary English, that right arises from the Convention since the Convention enabled that person to achieve the status of refugee. It is to be noted that the width of the words “arising out of” (which are no different in meaning) has been confirmed by the House of Lords in a contractual situation in for example Union of India v EB Aaby’s Rederi A/S [1975] A.C.797.