Legal aid (and exceptional case funding)

Legal aid is funding provided by the government to help meet the costs of some types of legal advice to people otherwise unable to afford legal representation.

Since April 2013, as a result of changes introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, there have been a number of areas of law that are no longer eligible for legal aid, including most immigration cases. This means that applications based on family or private life, citizenship applications and statelessness applications are not covered by legal aid.

If a child or family need legal advice and representation and this is covered by legal aid, they will be subject to a means and merits test – a financial test and a judgement on the strength of their case.

A list of areas of law for which legal aid is available is provided by the Law Society, here.

Asylum & Protection Cases

Asylum cases remain in the scope of legal aid, which means that anyone making an asylum claim is still eligible for legal aid funding to be represented by a solicitor without having to pay, subject to a means and merits test. Claims for humanitarian protection and claims based on articles 2 and 3 of the European Convention on Human Rights (right to life, prohibition on inhuman and degrading treatment or punishment) or the Temporary Protection Directive are also covered. Applications for indefinite leave to remain (ILR) at the end of a five year period of leave as a refugee or under humanitarian protection are also in scope for legal aid.

Victims of trafficking

Legal aid is available for victims of trafficking or modern slavery, as long as they have a positive reasonable grounds or a positive conclusive grounds decision. Legal aid is available for applications for leave to remain, rights under employment law and in cases for damages or compensation.

Domestic Violence

Legal aid is available for those with indefinite leave to remain applications under the domestic violence rule – for those who came to the UK as a wife, partner or civil partner of someone who is British or settled in the UK.

Judicial Review

Judicial review is when a decision, action or lack of action by a public body is challenged in court. Judicial review is a remedy of last resort, where there are no further appeals or alternative procedures to deal with the dispute. In the context of children and immigration issues, this will be relevant in age disputes, immigration decisions with no appeal rights, trafficking decisions and certification of asylum claims.

Legal aid is available for investigative representation (investigating the strength of a proposed judicial review) and full representation (covering the judicial review).

Separated children in care

As well as children who are in scope for legal aid in one of the categories above, looked after children and children in care with an immigration or nationality matter are also eligible for legal aid. This change was initially made in July 2018 (where separated children could get legal aid through the exceptional case funding system), but changes to the law were made later in October 2019. The changes to the law mean that, among other matters, separated children can now get legal aid for advice and representation on nationality law matters and the EU settlement scheme. Some legal aid providers still do not know about this change. The Legal Aid Agency issued an update for providers in October 2019 which is available here. For more information see our news story on this change here.

Exceptional case funding was designed to be a safety net to allow for legal aid to be granted in cases where failing to provide funding would risk a breach of someone’s human rights or a breach of European Union law. Exceptional case funding is only available in areas of law that are not eligible for legal aid. A list of areas of law for which legal aid is available is provided by the Law Society, here.

In practice, caseworkers will determine whether or not exceptional case funding should be granted by looking at the following:

• the importance of the issues at stake
• the complexity of the procedural, legal and evidential issues
• the ability of the individual to represent themselves (or to participate in the process) without legal assistance, bearing in mind their age and mental capacity.

Immigration cases are often highly procedural and legally complex, and can be difficult if not impossible for children to understand. A such, in order for children to participate in any meaningful way in complex administrative and judicial processes, it should be argued that legal aid funding should be made available.

By a solicitor

Where a solicitor is making the application for the person, they must apply using the form CIV ECF1 and submit this to the exceptional case funding team at the Legal Aid Agency, along with other financial means and merits forms.

It is possible for a person in need of legal aid to apply for exceptional case funding by themselves by filling out the CIV ECF1 form and providing information about why they are applying for exceptional funding. However, they would also need to prove that they meet the tests for means (financial circumstances) and merits (strength of the case).  There are forms to fill out to prove that the applicant meets these tests, but they are very complicated and are designed to be filled in by solicitors and not by applicants in person.

By an individual

Instead, an individual applying themselves does not have to use the specified form and instead can provide the following information in order to get a ‘preliminary view’ on their case:

• Background to the case, including all the main facts
• What they need legal advice on or what court proceedings they need representation in
• Reasons why they cannot represent themselves
• What outcome they wish to achieve
• Information to support the application, e.g. court applications and orders, expert and medical reports, copies of any decisions to be challenged
• Information on their financial situation.