Separated children to be eligible for legal aid funding prior to LASPO amendment

The government has issued guidance for legal aid caseworkers confirming that those representing unaccompanied and separated children should apply for legal aid via the exceptional case funding scheme, prior to LASPO amendment.

This was confirmed following the Ministry of Justice announcement to reinstate legal aid for unaccompanied and separated children with immigration matters last month, which requires the government to amend Schedule 1 of the Legal Aid Sentencing Punishment and Offenders Act 2012 (LASPO).

Brought into force under LASPO as a safeguard to protect those without access to legal aid, the exceptional case funding scheme (ECF) allows the Legal Aid Agency to grant legal aid in ‘exceptional cases’, where it is deemed necessary to prevent the breach of human rights or an EU Law right.

The guidance, published as a letter confirms that legal aid caseworkers should

operate on the basis that there is a strong presumption that under article 8 of the European Convention of Human Rights unaccompanied and separated children require legal aid in relation to non-asylum immigration matters

It also states that applications for ECF for these children

need not be supported by detailed evidence in relation to issues relating to vulnerability and ability participate in proceedings without legal aid.

The guidance for legal aid caseworkers is available here.

For more information on legal aid and access to justice for children, young people and families, see our report: Rights without remedies: legal aid and access to justice for children.