Tag Archives: residence test

All change: MoJ reconsiders legal aid proposals

On 5 September 2013, the Ministry of Justice announced its own response to the 16,000 responses to the public consultation on proposals to ‘transform’ legal aid, which had closed on 4 June 2013.  The response confirms the government will not now proceed with several of its original plans, and makes a significant number of other key concessions. It also introduces further consultations on criminal legal aid and judicial review.

Criminal legal aid

Plans to award contracts for provision of criminal legal aid based on price alone have been abandoned, in response to concerns that this would have a negative impact on quality of provision and would significantly reduce the number of providers. The government had also previously confirmed that it would not proceed with its plans to deny defendants a choice of legal aid defence lawyer. It still intends to impose a financial eligibility threshold for Crown Court trials.

The government has issued a further consultation with alternatives it believes will reduce the criminal legal aid budget. The deadline for responses is 18 October 2013. Under the new proposals, firms with a legal aid contract would be able to represent an unlimited number of ‘own’ clients, instructed outside of the police station and court duty schemes. Firms would need to bid for a share of the ‘duty’ rota work in their geographical area, with new contracts beginning in Spring 2015. A phased reduction in fees of 8.75% in early 2014 followed by a further reduction of 8.75% (of current rates) in Spring 2015 is also proposed, along with two alternative proposals for criminal advocacy fees.

The ‘Residence Test’ for non-criminal legal aid

The government intends to proceed with its plan to impose a ‘residence test’ for non-criminal legal aid eligibility. Only those living lawfully in the UK and who have done so for at least a year, now or at any time in the past, will qualify.

Some important exceptions were announced in the recent response to the consultation. It was already confirmed in the consultation paper that legal aid would remain available (for all non-criminal matters) for those pursing an initial asylum claim. The new concessions mean that legal aid will now remain available for those in immigration detention or held under the Mental Health Act 1983 seeking to secure their release, for failed asylum-seekers wishing to make a further (‘fresh’) asylum claim, for victims of trafficking, victims of domestic violence and forced marriage, for cases involving the protection of children, and for appeals heard by the Special Immigration Appeals Commission. Children under the age of twelve months who can prove they are lawfully in the UK will not need to clock up a year’s lawful residence before they are eligible. The period of residence for asylum-seekers who are granted refugee status will be ‘back-dated’ to the date they first claimed asylum. A break of up to thirty days in lawful residence in the twelve-month period would be allowed.

The government will confirm what evidence will be required to show that an individual meets the residence test in secondary legislation and guidance, once issued, to take effect in early 2014.

These concessions are welcome, but fail to recognise not only that a residence test will prevent many vulnerable people from challenging decisions to make them homeless; to refuse them community care support; to refuse to accept them as a child and support them as such; to refuse to accept them as a victim of trafficking (since the exception only applies once an individual has been recognised as such), and others. The plans also fail to reflect that many vulnerable British individuals – and those lawfully resident here – may be unable to prove that they meet the residence test. Read more about this here.

Judicial Review

The government intends to proceed with plans to remove legal aid for cases whose merits are initially assessed as borderline, and to proceed with cuts to fees in civil cases, with the small exception of fees for London-based interpreters.

A further consultation on proposals for changes to Judicial Review was issued on 6 September 2013.

The government intends to proceed with its plans that lawyers will not be paid for Judicial Review work until and unless the case proceeds beyond the initial stage and are granted permission to continue. In recognition of the fact that many cases settle before reaching this permission decision – often because the government body challenged accepts it has made a mistake and agrees to put it right – the government proposes to allow the Legal Aid Agency to pay these initial costs on a discretionary basis, as long as the lawyer has attempted to obtain the costs of the litigation from the government body concerned and that the case can be considered to have been worth running.

Other proposals outlined in the new consultation include:

  • Establishing a specialist tribunal to deal with challenges to government planning decisions, rather than processing such cases through Judicial Review in the High Court;
  • Preventing local authorities from bringing legal challenges to government decisions  on national infrastructure projects;
  • Removing legal aid for Judicial Review of planning decisions where an individual is at immediate risk of losing their home (legal aid remains unavailable for      challenges to other planning decisions);
  • Preventing campaigning groups from bringing legal challenges to government decisions (with the exception of environmental groups) and limiting the potential for interested expert groups from acting as ‘interveners’ in the course of proceedings;
  • Attempts to speed up challenges to government decisions made without complying with its duties to first consult those affected by its decisions. The government proposes two alternatives for this: (i) an assessment at an early stage of whether the decision would have been made differently had it complied with these duties; or (ii) provisions for Judges to dismiss cases at an early stage where it is ‘reasonably clear’ that the decision would not have been made differently had the government complied with its duties;
  • Removing from Judicial Review challenges to decisions made by a government body without adequately considering the extent to which its decisions will discriminate      against minority groups, including disabled people and minority ethnic groups;
  • Provision for wasted costs orders to be brought against individual lawyers in a      wider range of situations than is currently allowed, for example against lawyers who bring Judicial Review cases which are later found to be without merit.
  • Allowing the court wider powers to limit the amount of costs a Judicial Review claimant will be able to seek from a defendant if the claim succeeds.
  • Making third parties who wish to intervene in litigation (to provide an expert      opinion, for example) liable for their own costs, including their own legal costs.
  • Widening the type of appeals which can bypass the Court of Appeal to be heard      directly in the Supreme Court, to include cases ‘of national importance or which raise significant issues’. This could include, for example, the deportation of an individual considered to be a national security risk (such as Abu Qatada) and nationally important infrastructure projects (such as HS2).

The deadline for responses to the Judicial Review consultation is 1 November 2013.

Prison law

The government intends to proceed with its plans to remove most aspects of prison law from eligibility for legal aid. Funding will remain for proceedings before a Parole Board where the board has the power to direct release; and for matters where the dates of sentence calculation and release dates are disputed. Prison law contracts will not now be solely awarded to firms with a criminal defence legal aid contract.

The Howard League for Prison Reform outlines here, the devastating impact these proposals are likely to have on children and young people in the criminal justice system.

What’s next?

The Joint Commission on Human Rights has called for written evidence of the likely human rights implications of the legal aid proposals, and the deadline for this is fast approaching, on 27 September 2013. Read the inquiry and submit your evidence here.

The further consultation on criminal legal aid closes on 18 October 2013 and the consultation on Judicial Review closes on 1 November 2013.

In the meantime, let’s keep up the pressure. See our What Can I Do? page for actions to take now to raise awareness of the government’s proposals.

Read more…

… on the new proposals here (The Guardian), here (Sunday Mirror),  here (Liberty), here (Legal Aid Handbook) and here (Open Democracy).

…on civil legal aid here (Legal Action Group).

…on Judicial Review here (UK Human Rights Blog) and here (Euro Rights Blog).


McNally and the residence test – is it ideological?

We raised some of our concerns about the residence test with Lord McNally at our meeting Tuesday. Lord McNally was generous with his time and appeared genuinely interested in our discussions. Here’s what we told him, and his response:

The residence test: A ‘commonsense’ test?

Our two clients both gave really powerful examples at the meeting of the impact the residence test would have on refugees, and in particular on those seeking to make a ‘fresh’ asylum claim, detainees, and those needing legal aid in the first year following a grant of permission to stay in the UK (see our blogpost of 23 July 2013 on this below).

It’s unjust…

We told Lord McNally that, while we understand that the proposals intend to prevent those who don’t have a strong connection to the UK from accessing legal aid, our concern is that the residence test is also likely to exclude many British people and those born here or who have lived here since childhood. We gave him a few examples to think about: a British citizen unlawfully evicted by the local authority, losing all  belongings in the process; a British citizen escaping domestic violence to a refuge with none of her ID documents, seeking a non-molestation order to keep a violent ex-partner away from her; a child born in the UK to foreign national parents has been refused accommodation and support as a care leaver. We explained that such people would be unable to meet the residence test, or unable to prove that they do, even if they are in urgent need of legal assistance.

We reminded Lord McNally of other examples of vulnerable individuals who wouldn’t qualify for legal aid under the proposals, including many children and parents in care proceedings; victims of trafficking; and destitute children whose families are in need of accommodation and support.

…and unworkable.

We explained to Lord McNally why the residence test is also largely unworkable. We know from our own practice that immigration law is extremely complex and frequently changing. It’s possible for someone to have a residence permit in their passport but to actually not be here lawfully – such as the spouse of a European national, where the European national has returned home, for example. Equally, it’s possible not to have a valid residence permit or visa but to still be here lawfully – because you have an outstanding application with the Home Office to extend your visa or because your rights come automatically from EEA law, for example.

This will mean that legal aid lawyers approached by potential clients often won’t know if the clients meet the residence test or not. In reality, this will mean that even many people who meet the residence test won’t be able to access legal redress, because the lawyer they approach can’t be sure they meet the residence test, and won’t be able to grant legal aid unless they can prove that they do.

Championing the freedom, dignity and well-being of individuals?

We also raised one final, hugely important impact of the residence test: almost none of those held indefinitely in immigration detention will be able to access legal aid to challenge their detention, if the proposals are implemented. We asked Lord McNally how the Liberal Democrats, a party whose very constitution describes them as championing ‘the freedom, dignity and well-being of individuals’, could allow the indefinite detention of almost everyone in the detention estate, without access to the law.


We reminded Lord McNally that the consultation paper shows no predicted savings to the legal aid budget likely to be made by the residence test. There are likely, however, to be additional costs in implementing it – in administering applications for exceptional funding, for example (see our blogpost of 10 July 2013 for more on this). We asked Lord McNally why he’s planning to implement a measure which may bring about additional costs, without determining whether it will in fact save any money?

Lord McNally’s response

In response, Lord McNally didn’t address the residence test directly, but told us that every country has to have an immigration policy, and that it is hard to get this right. He told us that, as policitians, he and the coalition government see that immigration ranks second in people’s concerns about the UK currently. He accepted that some of this was ‘fed by malicious and misleading media’ but said the problems of the world cannot be solved by the UK having a liberal immigration policy.  He went on the say that he is trying make changes to legal aid while avoiding the worst injustices.

Lord McNally addressed our client Laila, who was held in detention for two periods totalling eight months before being granted refugee status, and said that people like her, who had never committed a crime in their lives, should not be held in detention. We welcome this extremely positive comment and hope to see this reflected in any future decisions regarding legal aid for those in detention.

We reminded Lord McNally of the government’s pre-LASPO promises, that legal aid would be kept for the most vulnerable, including detainees and victims of domestic violence, and asked why he was now excluding the same people from accessing help. He told us, ‘that’s why you should keep lobbying’. We assured him that we would!


Finally, we asked Lord McNally if, as the residence test was conceived as a way to address the public’s apparent concerns about immigration, and is unlikely to save any of the legal aid budget, it is in fact ideological?  Lord McNally told us that he was aware he had to be very careful in the world of Twitter (he’s right!) and that certain parts of the coalition think the residence test is a confidence-building measure, but not ‘us’.

A further consultation in September

Lord McNally concluded by confirming Mr Grayling’s earlier statement that there is to be a further consultation on the proposals in September. We asked if this was solely in relation to crime, and he confirmed there would be ‘some other statements at the same time about some other areas’.

“If I hadn’t had legal aid I would be dead now”

This morning we went to meet Lord McNally, Minister of State for Justice, with two women who have received legal aid. We wanted the Minister to hear from people who have received legal aid directly what it means to them. As we were waiting to enter the Ministry of Justice we spotted Chris Grayling, so we hand delivered the clients’ letters to him too.

Letter to Mr Grayling
Delivering Laila and Grace’s letters to Grayling

Laila’s story – fighting to be safe from persecution

Laila's letter to the Ministers
Laila’s letter to the Ministers

“I came to this country from Somalia to seek protection. When I made my asylum claim I was put in detention and my case was processed in the Fast Track system. Everything happened so quickly: after just two weeks my case had been refused. The Home Office did not even allow me time to get any evidence to support my case. I did not speak any English then and I did not really understand what was happening. Later I found a legal aid lawyer who helped me to make a fresh asylum claim. My lawyer helped me to get a medical report which was evidence of the scars and the Post Traumatic Stress Disorder that I have because of the rape and torture I suffered in Somalia. At first the Home Office refused to look at my new evidence and I had to start a judicial review case against them. Eventually the Home Office accepted that I had made a valid fresh asylum claim, and eventually I was recognised as a Refugee. Without legal aid I think I would be dead because I would have been sent back to Somalia.”

Grace’s story – protection from domestic violence

“I first came to this country with my ex husband. He is a very violent man. He abused and beat me and our children terribly in my country and in the United Kingdom. While I was seeking asylum in this country I had to apply for a non-molestation order against him. Everyday I lived in fear of him. My heart was pounding in my hand. I went to the police but they could not protect me. My legal aid lawyer advised me I could apply for a non molestation order from the court. We made the application and the Judge granted the order.

If it hadn’t been for the help I got through legal aid I would have committed suicide.  I was so unwell and scared then that I did not know my left from my right. I was so in fear of the violence of this man that I was thinking of killing myself. Legal aid saved mine and my childrens’ life”.

What the legal aid changes would mean for Laila and Grace

The government’s proposals to introduce a residence test for civil legal aid would mean that an asylum seeker like Laila whose case had initially been refused would not be able to receive legal aid to make a second (‘fresh’) asylum claim. We believe that this will mean that thousands of people will be at risk of being returned to countries where they risk being raped, tortured or killed.

The government’s proposals also mean that someone who has been recognised as a Refugee will not be able to receive legal aid until 12 months after they were granted status. This means that if Grace had had to apply for a non molestation order in the first year after she was recognised as a Refugee – rather than while her asyum claim was ongoing – she would not be able to get any legal aid.

The right to asylum and the need for legal aid

The government consultation recognises that asylum seekers are among the most vulnerable people in society, and says that is why legal aid will still be available for people seeking asylum for the first time. But we can see no justification for cutting legal aid from people making fresh asylum applications. Often such applications are made after there have been changes in the conditions in the asylum seeker’s home country, or after there has been a change in law, or when someone gets new evidence which supports their case. In 2010 for example, the House of Lords decided that it was wrong to expect someone seeking asylum on the grounds of their sexuality to have to go back to their country and simply be ‘discrete’. This landmark judgement meant that many people made successful fresh asylum claims.

We also don’t see how the government’s decision to exclude Refugees from receiving legal aid until they have had status for at least 12 months can be justified. The government says that legal aid should only be available for people who have a ‘strong connection’ to the UK, which it has defined as 12 months lawful residence. But if an exception is made for people seeking asylum, why should the clock be set back to day one when an asylum seeker is actually recognized as a Refugee?

Lord McNally’s reaction to Grace and Laila’s stories

At our meeting today, Lord McNally said it had been “extremely helpful” to hear Laila and Grace’s personal testimony. He accepted that problems such as needing a non molestation order against a violent ex partner require urgent solutions, and that a Refugee in this situation simply cannot wait for 12 months until they would meet the residence test. He stressed that both areas are still under discussion and that he wants to make savings to the legal aid budget without impacting on the most vulnerable. We found his response encouraging, and we hope it signals a change in the government’s thinking  on legal aid changes in relation to the residence test and its application to asylum seekers.

Chris Grayling v the Tax Payer – Round 1

On 3rd July last week Chris Grayling, the Lord Chancellor and Secretary of State for Justice, gave evidence to the Justice Select Committee on his proposals to transform criminal and civil legal aid. Mr Grayling made a point of saying that his first priority was to ‘meet the strictures that the Treasury has put upon him’. The budget is tight, and he has to make cuts. Being a politician, Mr Grayling was keen to say that he is “open to discussion”  because he “wants to get it right”. At the same time though, he made it clear that he actually has very little room for manoeuvre. Savings simply have to be made. Legal aid is tax payer’s money after all.

It would appear then that Mr Grayling has not read the number-crunching done by a barrister at Matrix Chambers, Dr Nick Armstrong. In a briefing note published on 24th June 2013, Nick Armstrong looks at the proposals to change civil legal aid, which the government say will achieve £6m in savings. He concludes that on a conservative estimate the proposals are in fact likely to generate on-costs of nearly £30m. The full briefing note is well worth a read, but here’s a summary of some key points.

Creating costs, not making savings

Prison law

  • Restricting legal aid for prison law, so that it is no longer available for prisoners seeking to challenge decisions relating to their treatment in prison, their categorisation, and resettlement issues will cause delays in people being released from prison. The tax payer will have to bear the significant costs of keeping someone in prison for longer than is actually necessary;
  • The government’s suggestion that problems experienced by prisoners should be dealt with in the prisons complaints system and by the Prisons and Probation Ombudsman (rather than in the courts, thanks to legal aid) will mean that the costs of these regimes will increase as more people fall back on using them. The tax payer will have to pay for the cost of Ombudsman complaints, which are actually much higher than a solicitor’s fixed fee;

The Residence Test

  • Introducing a system where people who are not in the UK lawfully, and who have not been in the UK lawfully for at least 12 months at some point in the past are not abe to receive legal aid will be very expensive because it will take time, and therefore cost money, for a lawyer to assess whether a client meets the test. The tax payer will have to pay for the time it takes to carry out this assessment, and for any challenges to it;
  • Allowing legal aid for people who don’t meet the test if there are ‘exceptional’ circumstances will mean that the tax payer will have to pay for exceptional funding applications to be considered by the Legal Aid Agency, and for any challenges to its decisions to refuse exceptional funding;
  • Preventing almost all people who are held in immigration detention centres from getting legal aid for applications to be released will mean they are likely to be detained for longer. The tax payer will have to bear the considerable cost of depriving someone of their freedom.

Judicial Review

  • The government plans to only pay for judicial review applications if  they reach a certain stage, known as ‘permission’ will mean that lawyers will have an incentive to make the case go on to this stage, even where it might not be necessary, because they need to get paid for the work they do.
  • Lawyers are also more likely to push for the court to make an order for the defendant (the public body who is defending the case for example a Local Authority, or the Secretary of State for the Home Department) to pay costs of the application, if there is no legal aid available. If the Court makes a ‘costs order’ another government department will have to pay up, but it is still the tax payer who will foot the bill.

What should the tax payer pay for?

Mr Grayling is right to say that there are some things the tax payer should not have to pay for. But he is wrong about what these things are. He says the tax payer should not have to pay for legal aid when some people (prisoners, migrants, or other groups that he thinks are unpopular) are being treated in a way that might be unlawful and want to enforce their rights under UK law. We think the tax payer should not have to pay for reforms that will create far more expenses than the savings they make. Especially not when the cost to people’s lives – people who are often the most disadvantaged in our society – and to our justice system as a whole are so high.

The ‘Residence Test’: it’s not just about migrants

Under the government’s plans to ‘transform’ legal aid, those who do not meet a ‘residence test’ will be unable to get help from a legal aid lawyer for non-criminal matters, unless they have an ongoing asylum claim or unless there are ‘exceptional circumstances’. This will of course affect many vulnerable migrants to the UK, including victims of traffickingchildren and those in immigration detention.

But the residence test has the potential to affect everyone who can’t afford to pay for a lawyer, not just migrants. If the proposals are implemented, all potential legal aid clients – including British citizens – will need to show evidence that they meet the residence test to any legal aid lawyer they wish to instruct. If you have proof you’re here legally – a valid British passport, for example – and evidence that you’ve spent at least a year here lawfully, all well and good. But what if you don’t have these things available, and need urgent help? How would you prove your eligibility then?

Victims of Domestic Violence

A British victim of domestic violence finally has the courage to leave an abusive partner, and flees to a refuge or to stay with a friend with just a few belongings, for example. The victim approaches a family lawyer the following morning, in need of an urgent application to the court to ensure the violent ex-partner stays away.

But, without a passport (or other proof the victim is lawfully in the UK) and documentary evidence of a year’s lawful residence, victims of domestic violence won’t be entitled to legal aid for this under the current proposals, no matter how severe the violence. How many victims are able to flee with evidence they meet the residence test ready to present to a legal aid lawyer when needed? How many victims – including British citizens and those legally here – will be forced to stay in violent relationships because of this? And what’s to prevent perpetrators of violence destroying or hiding such documents, knowing the victim won’t be able to access urgently needed help without them?

Care proceedings and abduction

The residence test also has massive implications for parents involved in care or adoption proceedings against a local authority. Parents and children who can’t prove they meet the residence test won’t be eligible for legal aid for this, meaning many will be unrepresented in court.

And imagine you return home to find your partner has left with your children and your passport, and is planning to leave the country with them. Under the current proposals there will be no legal aid for you to apply to prevent this in the family courts, until and unless you’re able to prove you meet the residence test. How would you prove this without official documents? How long would it take? And what would happen to your children in the meantime?

The proposals will also mean no legal aid for contact and residence disputes where there is domestic violence, unless you meet the residence test.

Representation of children

One final important impact of the residence test: in family and care proceedings, children will often have their own separate solicitors, instructed through a guardian to ensure that the court does what is best for them. The residence test would mean that many children without proof they meet it will not be entitled to a legal aid lawyer to represent their interests in court. How many children with ongoing care or adoption proceedings will be able to prove they meet the residence test?

Reducing the legal aid budget? 

The residence test will of course have a huge impact on migrants, but potentially affects all of us, and our friends and families too. It will prevent many British citizens’ ability to seek help from a lawyer when they most desperately need one. The government repeats the need to reduce the legal aid budget as justification for its proposals, but has so far been unable to say how much it thinks the residence test will save. Indeed, Dr Nick Armstrong of Matrix Chambers estimates that the residence test is likely to cost the government more money than it saves, because of the costs associated with determining whether a person meets the residence test or not, and additional likely expense of immigration detention, among other costs.

Act now!

Let’s stop these proposals! Contact your MP about this as soon as you can. This affects us all!