A challenge to the lack of legal aid for young people who have turned 18 since first claiming asylum to have a legal representative attend their asylum interview has been dismissed by the High Court. The case is R (Alhasan) v Director of Legal Aid Casework & Anor [2024] EWHC 2031 (Admin).

Background

The claimant was born on 5 January 2005 and arrived in the UK on 14 June 2022 as a 17 year old child and claimed asylum. He has since been recognised as a refugee. He was referred by Bury Council to Greater Manchester Immigration Aid Unit who took him on as a client in November 2022. His statement of evidence form and witness statement were submitted on 17 February 2023 and he was notified that his asylum interview would take place on 12 April 2023.

As he had turned 18 on 5 January 2023, the claimant was no longer entitled to legal aid funded representation at his asylum interview, as this is available only to children. His lawyer applied for exceptional case funding and attended the interview at risk of not being paid if the funding was not granted. The claimant was granted asylum on 9 June 2023. Funding was refused on 13 April 2023 and that decision was maintained following a review on 26 July 2023.

The article 14 challenge

One of the grounds of challenge was that the different treatment of those who had turned 18 by the time of their interview and so could not access legal representation under legal aid for that interview was incompatible with article 14 of the European Convention on Human Rights, read with articles 3 and/or 8.

The exclusion is set out at Schedule 1 (Part 1) section 30(3) to the Legal Aid Sentencing and Punishment of Offenders Act 2012:

(3) The services described in sub-paragraph (1) do not include attendance at an interview conducted on behalf of the Secretary of State with a view to reaching a decision on a claim in respect of the rights mentioned in that subparagraph, except where regulations provide otherwise.

The Civil Legal Aid (Immigration Interviews) (Exceptions) Regulations 2012 say at regulation 2 that:

Attendance at immigration interviews: children.

3. The civil legal services described in paragraph 30(1) of Part 1 of Schedule 1 to the Act include attendance at an immigration interview (including a screening interview) in any case in which the individual to whom the civil legal services are provided is a child at the time of that interview.

Fordham J said that a “conspicuous feature” of this case was that both parties were seeking to rely on a “shared bright line”, namely the 18^th birthday of an asylum seeking child, but in different ways. The claimant argued that where a child is not yet 18 at the date of the asylum claim, the refusal of funding cannot be justified even if they have turned 18 by the date of the interview. The Lord Chancellor’s position was that it was justified to use the turning 18 date, but to instead apply it to the date of the asylum interview instead of the date of claim.

The issue here will be immediately apparent to anyone working with people in the asylum – namely Home Office delays. A report from Greater Manchester Immigration Aid Unit last year stated that the

combined wait for legal representation and for an asylum decision means that more children than ever are turning 18 before their claim is decided, or “ageing out”. This is happening through no fault of their own and, caught up in the failings of two government systems, there is nothing children can do to prevent it. Our data shows this is affecting growing numbers of children [the Unit] represents – 56% of the young people we represent who received decisions so far this year. In 2019, only 19% of young people we represented would turn 18 before a decision was made…

The claimant pointed to paragraph 352ZD of the immigration rules which defines an unaccompanied asylum seeking child as a person who is under 18 at the date of the asylum claim, and then the “Children’s Asylum Claims” guidance which says that “When a child turns 18 before the substantive interview. If the child’s 18th birthday passes before a substantive asylum interview has been conducted, they are legally an adult, however, staff must, wherever possible, follow best practice for children’s cases”. The guidance on “Streamline Asylum Processing for Children’s Casework” also states that “Children’s asylum casework processes are for claims from claimants who raised their claim for asylum as a minor under the age of eighteen years.”

This is important because there are different processes and safeguards that apply to children’s claims. These provisions for those who turn 18 during the processing of their claim are likely intended to protect children from the delays of the system. However there is no equivalent protection against delays provided by the Lord Chancellor in relation to legal aid funding for interviews.

Evidence from Greater Manchester Immigration Aid Unit was that: “in practice, it is at the substantive asylum interview where the Home Office really test the individual’s nationality, the plausibility of their reasons for claiming asylum and will scrutinize any inconsistencies between the welfare interview or SEF and statement to the account given on the day”; and that “for the young people we represent it can be a gruelling experience, it can feel very similar to undergoing cross-examination in a court setting”

Evidence was given by solicitors at Greater Manchester Immigration Aid Unit and Islington Law Centre, a social worker at Manchester City Council and an academic from the University of Liverpool, all of which was to the effect that an 18 year old is in no less need of assistance with their asylum interview than a 17 year old.

Fordham J described the advantage of having legal assistance during the asylum interview as being “real and significant” [at 20]. Many examples were given by Greater Manchester Immigration Aid Unit, Islington Law Centre and Asylum Aid of situations where the lawyers had attended the asylum interviews without payment and had needed to intervene because of issues in the way the interview was being conducted, or where the lawyers had not attended and several hours of avoidable post-interview work had been required to fix the issues caused by the interview [at 21 and 22].

Was there different treatment?

It was submitted on behalf of the claimant that, of people who had claimed asylum when they were under 18, those who had and had not turned 18 by the date of their asylum interview were comparable groups. Unaccompanied asylum seeking children are “a class of individuals associated with vulnerability, traumatic experience and particular mental health challenges, for whom so much is at stake in the asylum decision-making process, and for whom a legal representative at the asylum interview makes a recognised and substantial contribution”.

Those who have turned 18 before their asylum interview “are the same individuals with the same associations with vulnerability, traumatic experience in particular mental health challenges, for whom so much is at stake, and for whom the legal representative would make the recognised and substantial contribution”. The two groups are therefore in a similar position but are being treated differently.

Fordham J agreed with the claimant’s submissions, saying that “there is a contextual comparability which calls for justification through a legitimate objective and reasonable relationship of proportionality”.

Was the different treatment justified?

Fordham J then moved on to consider the reasons for the different treatment and whether they amounted to objective and reasonable justification. It was accepted on behalf of the claimant that the different treatment was in pursuit of a legitimate aim, which was public resources being targeted at priority areas.

The court concluded that the Lord Chancellor had “discharged the onus of establishing an objective justification for the difference of treatment”. The reasons for the decision included that “there is a very well-established bright-line delineation, in the context of state assistance and support for the individual, which uses whether the individual has or has not Turned-18 at the time of the state assistance and support” [at 50].

In relation to the Home Office’s position in the guidance, the court said that the provisions in the guidance were “best practice” and caveated by the words “wherever possible” and so did not represent a policy position that a child who had turned 18 by the interview must have a legal representative in attendance.

The court also held that the definition of “unaccompanied asylum seeking child” at paragraph 352ZD of the immigration rules does not apply to paragraph 350 to 352ZB. This means that the definition in paragraph 6.2 applies instead, which says that “child” means a person under 18. Following on from those findings, the court said that the submission that there was a mismatch between the Home Office position and the Lord Chancellor’s position was not substantiated.

The article 14 claim therefore failed on the objective justification ground.

Refusal of exceptional case funding

Section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 states that exceptional case funding can be granted when:

(a) … it is necessary to make the services available to the individual … because failure to do so would be a breach of – (i) the individual’s Convention rights (within the meaning of the Human Rights Act 1998), or (ii) any rights of the individual to the provision of legal services that are assimilated enforceable rights,

or (b) … it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.

The Director of Legal Casework had assessed that the claimant had the ability to effectively attend, understand and engage with the interview process to a sufficient degree, and that his being a vulnerable young adult did not preclude him from this. The court considered that the assessment had been done in the legally correct way and so the challenge under section 10(3)(a) failed.

On the section 10(3(b) point, the judge concluded that

I can detect no unlawfulness or unreasonableness in the Director’s conclusion as to the second limb, having lawfully concluded that the refusal of legal aid would not breach the Claimant’s Convention rights, in concluding that there was no risk of breach and that legal aid was not appropriate in all the circumstances. I have already held, as to breach, that her conclusion was objectively and legally correct. As to risk of breach, and appropriateness in all the circumstances, I am satisfied that her conclusion was reasonably open to her and involved no public law flaw in the reasoning process.

The challenge to the exceptional case funding decision was also dismissed.

Conclusion

The evidence about the conduct of Home Office interviews is really concerning, and of course examples also exist in the cases of people who claimed as adults. That aside, this is a really unfair outcome for those vulnerable young people who were very recently children and who have lost such a demonstrably vital safeguard solely through government failures on both legal aid and Home Office delays.

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