Gudanaviciene (exceptional funding) – Court of Appeal substantially upholds earlier decision

15 December 2014

In R (Gudanaviciene & Ors) v the Director of Legal Aid Casework & the Lord Chancellor (British Red Cross Society intervening) [2014] EWCA Civ 1622, the Court of Appeal, consisting of Lord Dyson MR, Richards and Sullivan LJJ, has today substantially upheld the judgment of Collins J (reported at [2014] EWHC 1840 (Admin)).

In a lengthy judgment, the court concluded that:

1. The Lord Chancellor’s guidance misinterprets the statutory test under section 10(3)(a) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. There was no warrant for imposing any sort of gloss on the statute, which makes clear that the test is whether there “would be” a breach of ECHR or EU law rights. That is to be determined in accordance with the case-law of the Strasbourg Court and CJEU.
2. In relation to section 10(3)(b), the section refers to “any” risk; the greater the risk the more likely it is that the Director will grant funding, though he must have regard to all the circumstances. A decision under this section will be subject to traditional judicial review.
3. While the test in X v UK is broad enough to cover the reasoning in the case of Airey v Ireland (and subsequent cases), the proper approach to Article 6 ECHR – and by extension Article 47 CFR – is that set out by the Strasbourg Court in the string of cases descending from Airey .
4. There is no threshold test under Article 6 ECHR. The ultimate issues are effectiveness and fairness. There is nothing in the case-law to suggest that there is a “very high” (or, indeed, any) threshold. The guidance, in giving decision makers a clear steer towards refusing applications on the basis of just such a threshold test, is thus unlawful.
5. The procedural protections of Article 8 ECHR apply to immigration cases in just the same way as other fields of law. There is nothing in the exclusion of immigration cases from the scope of Article 6 ECHR protection in Maaouia v France to justify a weaker approach: the different articles create different protections. In the end, it is difficult to see how there is any difference between the protection afforded by Articles 6 and 8 in an immigration case. The key requirements are effectiveness and fairness. The guidance, in suggesting that Article 8 could never lead to a requirement to fund immigration cases, was thus unlawful.

The court overturned Collins J’s decision in relation to whether refugee family reunion cases remained in scope, finding clearly that they were not. It also rejected an argument (as did Collins J) to the effect that a right to legal arose in relation to victims of trafficking before a “reasonable grounds” determination had been made (as part of the National Referral Mechanism) by virtue of Article 12(2) of the Trafficking Directive.

The decision is clearly of great significance to applicants for exceptional case funding. In addition, the court’s conclusions on Article 8 have the potential to end the decade-long debate regarding the correctness of Maaouia. On that basis, the decision is also likely to have implications in other areas of immigration law where appellants/applicants might choose to raise the twin requirements of effectiveness and fairness.

The court’s decisions in relation to whether the facts of each case required legal aid are also likely to have wider significance, particularly in relation to deportation appeals and complex immigration applications.

It is inevitable that, as a result of the judgment, the Lord Chancellor will have to rewrite his guidance. An increase in the numbers of successful exceptional case funding applications might also be expected.

The Respondent, Ms Gudanaviciene, was represented by Richard Drabble QC, Ranjiv Khubber and Garden Court North Chambers’ Joseph Markus, instructed by Tom Giles of Turpin & Miller LLP.