This post by Frances Meyler and Sarah Woodhouse, Co-Directors of the Liverpool Law Clinic, School of Law and Social Justice, University of Liverpool, examines some of the arguments that might be put forward in an application for an ‘Exceptional Case Determination’. It focuses on articles 6 and 13 of the ECHR and also Article 47 of the EU Charter of Fundamental Rights and Freedoms. The post draws from a review by the authors entitled ‘Changing the immigration rules and withdrawing the ‘currency’ of legal aid: the impact of LASPO 2012 on migrants and their families’, appearing in this month’s special legal aid issue of Journal of Social Welfare & Family Law, 2013, Vol. 35.

Immigration cases that now fall outside of the Legal Aid, Sentencing and Punishment of Offenders Act may resort to one final possibility which might provide access to legal aid. Section 10 gives entitlement to legal aid where there has been an “exceptional case determination” (‘ECD’). An ECD must be made if failure to do so would be a breach of the person’s “Convention rights (within the meaning of the Human Rights Act 1998)”, or their “enforceable EU rights”. “Any risk” that failure to make an ECD would be such a breach may also lead to an ECD if “it is appropriate … in the particular circumstances of the case”.

Applicants will need to show that without an ECD they would not have effective access to justice and that representing themselves is not an option. The Public Law Project believe that where the following factors are present the applicant ought to qualify for an ECD, and if refused the case may be susceptible to challenge by way of judicial review:

• The case is factually, procedurally and legally complex
• The issues at stake are of great importance for the litigant, for example, issues of life, liberty, independence, family life, protection from abuse and the welfare of children and vulnerable adults
• The financial implications of losing the case are ruinous for the litigant
• The litigant has characteristics which make it difficult for them to represent themselves, such as a physical or mental disability, a communication problem, a limited understanding of English, fluctuating capacity or limited education or literacy levels
• The litigant has a deep emotional involvement with the proceedings, rendering them unable to advocate objectively in court, for example, where there are allegations of abuse
• There are no other means of assisting the litigant, for example, there is no pro bono legal help available, and, there are no other sources of funding available and there are no other routes of seeking redress.

In addition, concerns have already been expressed at the highest level amongst the immigration judiciary about the absence of legal aid in cases where migrants are not well-equipped to represent themselves, for example in cases where the individual’s literacy ability is limited or where the hearing is preceded by a prolonged period of detention: Farquharson (removal – proof of conduct) [2013] UKUT 146 (IAC). It is interesting to note that the President in that case referred to common law fair trial principles, rather than relying on the ECHR. This is no doubt because of the case of Maaouia v France 39652/98 [2000] ECHR 455 (5 October 2000), which precludes reliance on Article 6 ECHR in immigration proceedings (see below). Moreover with government intentions on the Human Rights Act becoming increasingly less subtle, it would hardly be surprising if the judiciary began to place greater reliance on the common law where the most obvious source of law is the ECHR.

Convention Rights: Article 6 ECHR

When might failure to provide legal aid amount to a breach of a person’s ‘Convention Rights’, so as to trigger an ECD, in the immigration context? Article 6(1) guarantees the right to a fair trial and, importantly, access to a court. Whether access to a court implies a right to state-funded legal assistance has been considered on several occasions by the European Court of Human Rights, and the general principles are now well established.

The Court has held that the right to a fair trial, whether civil or criminal, implies that the litigant must have the opportunity to present his or her case effectively before the court, and if the litigant cannot pay for legal assistance then denial of legal aid can amount to a breach of the right of access to a court. The question of whether legal aid is necessary to give effect to this right is to be determined on the specific facts of each case, taking into account factors such as the complexity of the law or procedure, the capacity of the applicant to represent him or herself, and what is at stake for both sides. Complete equality of arms between the two sides is not required, provided both have a reasonable opportunity to present their case under conditions that do not place him or her at a substantial disadvantage vis-à-vis the adversary. Further, the right to legal aid or legal assistance from the State is not absolute, and proportionate restrictions that pursue a legitimate aim are lawful (Steel and Morris v. UK – 68416/01 [2005] ECHR 103; Alkan v Turkey – 17725/07 [2012] ECHR 233).

However, difficulties arise in the immigration context. Article 6(1) itself states that it applies to ‘the determination of’ a person’s ‘civil rights and obligations or of any criminal charge’. The European Court of Human Rights has held that ‘civil rights’ do not include disputes relating purely to public law rights. In Maaouia v France the Grand Chamber held that Article 6(1) was not applicable to decisions on entry, stay and deportation of aliens, since such decisions “do not concern the determination of an applicant’s civil rights or obligations or of a criminal charge against him, within the meaning of Article 6(1) of the Convention” (para. 40). The Grand Chamber explained

“because of the substantial discretionary and public-order element in such decisions, proceedings relating to them are not to be seen as determining the civil rights of the person concerned, even if they inevitably but incidentally have major repercussions on his private and family life, prospects of employment, financial position and the like”.

Maaouia v France has since been applied domestically in the UK (e.g. MK (Iran) v SSHD [2010] EWCA Civ 115), but there is considerable confusion about the distinction between a civil right (where Article 6 standards apply) and a public law right (where Article 6 standards do not), and the jurisprudence of the ECtHR about the proper scope of Article 6 is in a state of flux. In the meantime, domestic decisions have affirmed the distinction between civil and public law rights, clarifying that it is the “the nature and purpose of the administrative action which determines whether its impact on private law rights is such that a legal challenge to it involves a determination of civil rights”, with some questioning, in the asylum context, whether the line between civil and public law has been drawn in the correct place by the European Court (Matfah v FCO [2011] EWCA Civ 350).

Many immigration practitioners share the view that the decision in Maaouia v France needs rethinking, and would argue that Article 6 protections to access the court should be extended to disputes concerning immigration as well as asylum. Whilst the jurisprudence of the European Court indicates that the gravity of the issues involved for the individual is not determinative of whether a right is characterised as a public or civil right, many would argue that the seriousness of the impact on the individual of immigration decisions should be taken into account. Certainly, that the protections of Article 6 are enjoyed by those claiming a ‘right to property’, and other ‘pecuniary rights’ strikes us as somewhat ironic, when these protections are denied to immigrants and asylum seekers. The other element is the increased specificity of the Immigration Rules, which perhaps make it incorrect to characterise immigration decisions as ‘discretionary’ and suggest that the protections of Article 6 might be appropriate.

Convention Rights: Article 13 ECHR

Whatever the arguments about the proper scope of Article 6, we have explained why it does not, on the current jurisprudence of the domestic courts and European Court of Human Rights, apply to immigration proceedings. As things stand, it will be very difficult to use Article 6 in the immigration context to establish entitlement to a positive ECD for immigration cases, therefore, as to do so would probably require a change of approach by the European Court of Human Rights.

However, Article 13 ECHR provides a right to an effective remedy for violations of other rights under the Convention: the inability to obtain a remedy before a national court for an infringement of a Convention right is itself an infringement of the Convention, and can be challenged as such. In the family migration context, those pleading Article 8 might be able to rely on Article 13 as the basis for an ECD. They might argue, for example, that an ECD should be made, since without it there would be a breach of their ‘Convention rights’ (Article 13, the right to an effective remedy), because legal aid is required to enable them to argue that their removal would breach Article 8 ECHR, and without legal aid there is no ‘effective remedy’.

Article 13 will not help all those with whom we are concerned. It will probably not assist those whose applications rely on the Immigration Rules alone, as it requires another Convention right to be in play. In addition, the factors mentioned above in the discussion of Article 6 will need to be assessed to determine whether, on the particular facts of the case, refusal to grant legal aid in relation to an Article 8 claim might amount to a breach of Article 13. These factors include the complexity of the law or procedure, the capacity of the litigant to represent himself, and what is at stake for both sides. It is also worth noting that Article 13 was not implemented by the Human Rights Act, as it was assumed that the Act itself was the effective remedy.

EU Charter of Fundamental Rights

An ECD must also be made if failure to do so would be a breach of ‘enforceable EU rights’. The EU Charter of Fundamental Rights, Article 51, binds EU states to the provisions of the Charter when implementing EU law. Article 47 of the EU Charter sets out a right to an effective remedy and is based on Article 13 ECHR. However, Article 47 of the Charter is broader than Article 13 ECHR, and unique in its specific mandatory reference to legal aid where required to access justice meaningfully:

“Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.”

Article 47 might therefore provide a right to legal aid where an immigration case is founded directly on EU law. In addition to the obvious free-movement cases, there may be arguments raised concerning, for example, whether UK opt-out clauses have real bite (e.g. in relation to the family reunification Directive: Council Directive 2003/86/EC of 22 September 2003). There may also be certain cases that will fall within the ambit of Council Directive 2003/8/EC of 27 January 2003 to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes, to mention but two examples.

However, since the EU Charter largely imports ECHR concepts, the right to legal aid would not be absolute. This is also reflected in the wording of Article 47 (see above: ‘in so far as such aid is necessary to ensure effective access to justice’). Individuals would need to demonstrate the particular reasons why a failure to grant legal aid would amount to a breach of Article 47, and why, in their particular circumstances, this is ‘necessary’. It is interesting to note the explanatory note to Article 47, which states:

“in Union law, the right to a fair hearing is not confined to disputes relating to civil law rights and obligations. That is one of the consequences of the fact that the Union is a community based on the rule of law. Nevertheless, in all respects other than their scope, the guarantees afforded by the ECHR apply in a similar way to the Union.”

Thus the reasoning in Maaouia v France falls away under the Charter. Disputes about issues the European Court of Human Rights has defined as concerning ‘public law’, such as immigration, fall squarely within the ambit of Article 47 as long as the member state is implementing EU law.

It is a well-established principle of EU law that detailed procedural rules governing actions for safeguarding an individual’s rights under EU law must not make it in practice impossible or excessively difficult to exercise rights conferred by EU law: Case 33/76 Rewe-Zentralfinanz and Rewe-Zentral [1976] ECR 1989, paragraph 5; Case C-432/05 Unibet [2007] ECR I-2271, paragraph 43; and Case C-268/06 Impact [2008] ECR I‑2483, paragraph 46. In the taxation case of Deutsche Energiehandels-und Beratungsgesellschaft mbH v Bundesrepublik Deutschland (‘D.E.B.’ – Case C-279/09), Article 47 of the EU Charter was considered by the ECJ with specific reference to the right to effective judicial protection. A domestic rule made the pursuit of a claim before the courts subject to advance payment of the costs of proceedings and/or to the assistance of a lawyer. The legal person in D.E.B. was unable to make that advance payment and was ineligible for legal aid. The referring court sought a preliminary ruling on whether the fact that a legal person is unable to qualify for legal aid renders the exercise of its rights impossible in practice in that access to a court was denied because it would be impossible to make the advance payment in respect of the costs of proceedings and to obtain the assistance of a lawyer. In ruling that it was not impossible for legal persons to rely on the principle of effective judicial protection and that aid granted pursuant to that principle may cover, inter alia, dispensation from advance payment of the costs of proceedings and/or the assistance of a lawyer, the ECJ gave the following detailed guidance:

– It is for the national court to ascertain whether the conditions for granting legal aid constitute a limitation on the right of access to the courts which undermines the very core of that right;

– whether those conditions pursue a legitimate aim;

– whether there is a reasonable relationship of proportionality between the means employed and the legitimate aim which it is sought to achieve.

– In making that assessment, the national court must take into consideration the subject-matter of the litigation;

– whether the applicant has a reasonable prospect of success;

– the importance of what is at stake for the applicant in the proceedings;

– the complexity of the applicable law and procedure; and

– the applicant’s ability to represent himself effectively.

– In order to assess proportionality, the national court may also take account of the amount of the costs of the proceedings that must be paid in advance and whether or not those costs might represent an insurmountable obstacle to access to the courts.

– The national court may take account of the individual / legal person’s circumstances, (including the form of the legal person in question and whether it is profit-making or non-profit-making; the financial capacity of the partners or shareholders; and the ability of those partners or shareholders to obtain the sums necessary to institute legal proceedings).

[paragraphs 59 – 62 of the judgment refer]

It is worth recalling that, in addition to on the whole not being eligible for legal aid, migrants must also now pay appeal lodgement fees. It may be arguable in certain cases grounded in EU law that the combination of factors including appeal lodgement fees, ineligibility for legal aid and the complex ever-changing Immigration Rules make it impossible or excessively difficult to exercise rights conferred by EU law.

Furthermore, a new line of authorities starting with Zambrano raises the tantalising possibility of a wider conception of EU citizenship and its interplay with fundamental rights, which might, in the future, extend the reach of Article 47 to a broader category of cases, including cases involving ‘static’ persons who nonetheless enjoy Citizenship of the Union. However it is clear that this highly unstable line of authorities is being refined progressively and has not yet reached its end point nor settled equilibrium.