Chris Grayling says government to proceed with most measures proposed in April, but a number of concessions have been made
The government yesterday responded to its consultation on legal aid reform.
While Justice Secretary Chris Grayling said that the government has decided to proceed with most of the measures proposed in April, a number of concessions have been made and a second phase of consultation on refined proposals was announced.
Notably, as the Guardian highlighted, controversial proposals to award legal aid contracts in criminal cases to the lowest bidder are to be scrapped.
On concessions relevant to immigration and asylum law, JCWI notes the following the with regard to the proposed Residence Test:
The Residences Test was extremely controversial. The proposal is that legal aid will only be available for those who have strong connections with the UK as evidenced by 12 months continued lawful residence. Very strong and diverse submissions were made on the injustices this would result in. The Government has rejected the submissions but conceded that vulnerable groups need to be protected as it originally pledged when LASPO came into force. Thus in relation "to an individual's liberty, where the individual is particularly vulnerable or where the case relates to the protection of children" the residence test will not apply. Originally asylum seekers and armed forces personnel were exempt from the test, now the exemptions have been extended to:
• Detention cases (paragraph 5, 20, 25, 26 and 27 (and challenges to the lawfulness of detention by way of judicial review under paragraph 19) of Part 1 of Schedule 1 to LASPO)
• Victims of trafficking (paragraph 32 of Part 1 of Schedule 1 to LASPO),
• Victims of domestic violence and forced marriage (paragraphs 11, 12, 13, 16, 28 and 29 of Part 1 of Schedule 1 to LASPO);
• Protection of children cases (paragraphs 1, 349, 950, 10, 15 and 23 of Part 1 of Schedule 1 to LASPO); and
• Special Immigration Appeals Commission
Change will be introduced via secondary legislation, to take effect in early 2014.
The Legal Aid Handbook website provides the following summary on the Residence Test:
• The residence test will go ahead as proposed via secondary legislation in early 2014, but with the following further exceptions and clarifications:
• the asylum seeker exception will include those seeking advice on asylum issues – answering a concern that advice on fresh claims would be excluded unless the Home Office accepted the fresh claim
• the residence test will not apply to:
• those challenging detention (such as immigration detention)
• victims of trafficking, domestic violence and forced marriage – but not generally, only where their status as one of those persons qualifies them for services under Schedule 1 LASPO (for example, a person with a housing problem who is also a trafficked person will not be able to rely on their trafficking history to access housing legal aid if they would otherwise fail the residence test, but they would be able to access the services specifically for trafficked persons in para 32 of Part 1 of Schedule 1)
• child care and protection of children cases
• cases before the Special Immigration Appeals Commission
• some judicial review cases in relation to certification under sections 94 and 96 Nationality Immigration and Asylum Act 2002
• successful asylum seekers will have to show 12 months lawful residence not from the date of their asylum grant, but from the date of the application
Other civil legal aid key announcements highlighted by the Legal Aid Handbook include:
• Conditional funding for the permission stage of judicial review will go ahead, but with LAA discretion to pay in cases that settle pre-permission. There will be a further consultation on how this will operate.
• Prison law will be removed from scope as proposed. The government have added all proceedings before the Parole Board where the Board is considering whether to direct release, and advice and assistance in relation to sentence calculation, back into scope as well.
• Borderline cases will be removed as proposed
• Fixed fees (and hourly rates in escape fee cases) in childcare cases will be reduced by 10% as proposed. New fee tables are here, and will apply from April 2014.
• As proposed, rates for civil (non-family) barristers will be reduced to the rates payable to solicitors for advocacy, travel, etc. New fee tables arehere and will apply from "later this year".
• The 35% uplift for Upper Tribunal immigration and asylum cases will be removed as proposed. New fee tables are here and will apply from "later this year".
• Expert fees will be reduced by 20% (with the exception of neurologists, neuroradiologists, neonatologists and housing disrepair surveyors). Interpreters will be paid the same rates as now in London but reduced by 12.5% out of London. New fee tables are here and will apply from "later this year".
For a fuller overview, we recommend ILPA's 6 page Summary of the Government's conclusions on the Transforming Legal Aid consultation available here.
The ILPA document provides an excellent summary of those matters of most relevance to immigration, asylum and nationality law.