The Borehamwood office has moved!
Monday, August 26th, 2013
As part of an overall review of the services provided by the office in Borehamwood, we are delighted to announce that the office has moved to a new location. This exciting new opportunity allows us to meet clients in an accessible and professional environment close to local transport links and amenities.
The new address is:
4 Imperial Place
For further information please call 020 8213 3116
Article by Alice Muzira - Head of Immigration Law
Monday, July 22nd, 2013
First Law Immigration Assists Ghanaian Gay Man Win Asylum Despite 9 year Delay Claim
First Law Partnership within the last few weeks successfully assisted a Ghanaian gay man, AA, claim asylum following a delay of 9years in claiming asylum.
AA left Ghana in 2004 and arrived here as a visitor. He remained as an overstayer. A few years later he was briefly detained in immigration detention following a Home office enforcement visit. A formal leave to remain application was submitted whilst in detention however following AA's release from detention and subsequent rejection of the application as invalid, this application was not pursued. AA having a fear of return to Ghana as a gay man voluntarily claimed asylum a few weeks ago. AA's case was that he had known that he was gay just before puberty and in his teenage years had begun his first homosexual relationship. Following several discreet gay relationships, his last gay relationship was discovered by a family member. His father disowned him and the rest of his family shunned him. His community also came to know about his sexuality following a disastrous attempt at involvement in a heterosexual relationship. Thereafter he experienced sustained persecution from which he could not obtain police protection and when he could bear it no longer, he left for the United Kingdom. Upon arrival in the United Kingdom AA was involved in several gay relationships and a year prior to his asylum claim, AA discovered that he had acquired a potentially life threatening illness. It was not part of AA's claim that should he be removed from the United Kingdom he would not be able to access relevant treatment but that in combination with his illness and sexuality he would be stigmatized and persecuted in Ghana. His demeanour, the way he dressed, the way he spoke, the way he walked and having lived in the United Kingdom as an openly gay man it was such that he could not be expected to return to Ghana and live discreetly.
The Home Office considered AA's asylum claim and following a substantive asylum interview in June 2013 was granted asylum several weeks later.
CREDIBILITY ISSUES IMPACTING UPON AA'S ASYLUM CLAIM
Worryingly, there is no relevant Country Guidance Case law from the Tribunal despite clear background evidence that those of homosexual orientation are subject to persecution in Ghana, without expectation of police protection since male homosexual activity is officially illegal in Ghana.
Having regard to AA’s immigration history, the odds were clearly stacked against him being granted asylum. In of the potential credibility issues in AA's case, it is worth considering the relevant immigrations rules, legislation and case law that would be relevant in consideration of his asylum by the Home Office.
- Paragraph 339L of the Immigration Rules provides as follows;
“339L. It is the duty of the person to substantiate the asylum claim or establish that he is a person eligible humanitarian protection or substantiate his human rights claim. Where aspects of the person's statements are not supported by documentary or other evidence, those aspects will not need confirmation when all of the following conditions are met:
(i) the person has made a genuine effort to substantiate his asylum claim or establish that he is a person eligible humanitarian protection or substantiate his human rights claim;
(ii) all material factors at the person's disposal have been submitted, and a satisfactory explanation regarding any lack of other relevant material has been given;
(iii) the person's statements are found to be coherent and plausible and do not run counter to available specific and general information relevant to the person's case;
(iv) the person has made an asylum claim or sought to establish that he is a person eligible for humanitarian protection or made a human rights claim at the earliest possible time, unless the person can demonstrate good reason for not having done so; and
(v) the general credibility of the person has been established”.
Taking Paragraph 339L (v) into account, a person's "general credibility" is considered to be potentially damaged by behaviour that falls within the scope of Section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004.
- Paragraph 339N of the Immigration Rules provides:
“339N. In determining whether the general credibility of the person has been established the Secretary of State will apply the provisions in s.8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004”.
- Section 8 of the 2004 Act provides:
This section has no associated Explanatory Notes
(1) In determining whether to believe a statement made by or on behalf of a person who makes an asylum claim or a human rights claim, a deciding authority shall take account, as damaging the claimant’s credibility, of any behaviour to which this section applies.
(2) This section applies to any behaviour by the claimant that the deciding authority thinks—
(a) Is designed or likely to conceal information,
(b) Is designed or likely to mislead, or
(c) Is designed or likely to obstruct or delay the handling or resolution of the claim or the taking of a decision in relation to the claimant.
(3)Without prejudice to the generality of subsection (2) the following kinds of behaviour shall be treated as designed or likely to conceal information or to mislead—
(a) Failure without reasonable explanation to produce a passport on request to an immigration officer or to the Secretary of State,
(b) The production of a document which is not a valid passport as if it were,
(c) The destruction, alteration or disposal, in each case without reasonable explanation, of a passport,
(d) The destruction, alteration or disposal, in each case without reasonable explanation, of a ticket or other document connected with travel, and
(e) Failure without reasonable explanation to answer a question asked by a deciding authority.
(4) This section also applies to failure by the claimant to take advantage of a reasonable opportunity to make an asylum claim or human rights claim while in a safe country.
(5) This section also applies to failure by the claimant to make an asylum claim or human rights claim before being notified of an immigration decision, unless the claim relies wholly on matters arising after the notification.
(6) This section also applies to failure by the claimant to make an asylum claim or human rights claim before being arrested under an immigration provision, unless—
(a) He had no reasonable opportunity to make the claim before the arrest, or
(b) The claim relies wholly on matters arising after the arrest.
Section 8 designates that certain specified behaviours by the applicant must be taken into account as potentially damaging by decision makers when assessing credibility if the applicant is unable to provide reasonable explanations for his actions. It is therefore necessary to take Section 8 into account when deciding whether or not to give the applicant the benefit of the doubt.
In SM (Section 8: Judge's process) Iran (2005) UKAIT 00116, it was held that Section 8 is not the starting point for the consideration of credibility:
“9. Given the terms of section 8, it is inevitable that the general fact-finding process is somewhat distorted, but that distortion must be kept to a minimum. There is no warrant at all for the claim, made in the grounds, that the matters identified by section 8 should be treated as the starting point of a decision on credibility. The matters mentioned in section 8 may or may not be part of any particular claim; and their importance will vary with the nature of the claim that is being made, and the other evidence that supports it or undermines it. In some cases, (of which the most obvious are perhaps those where there is contested evidence about the journey to the United Kingdom) it will simply not be possible to know whether section 8 applies until a preliminary view has been taken on the credibility of some other part of the evidence”.
“10. In our judgment, although section 8 of the 2004 Act has the undeniably novel feature of requiring the deciding authority to treat certain aspects of the evidence in a particular way, it is not intended to, and does not, otherwise affect the general process of deriving facts from evidence. It is the task of the fact-finder, whether official or judge, to look at all the evidence in the round, to try and grasp it as a whole and to see how it fits together and whether it is sufficient to discharge the burden of proof. Some aspects of the evidence may themselves contain the seeds of doubt. Some aspects of the evidence may cause doubt to be cast on other parts of the evidence. Some aspects of the evidence may be matters to which section 8 applies. Some parts of the evidence may shine with the light of credibility. The fact-finder must consider all these points together; and, despite section 8, and although some matters may go against and some matters count in favour of credibility, it is for the fact-finder to decide which are the important, and which are the less important features of the evidence, and to reach his view as a whole on the evidence as a whole”.
The Court of Appeal case of JT (Cameroon) v Secretary of State for the Home Department 2008 EWCA Civ 878 gives additional guidance on applying the benefit of doubt and the appropriate use of Section 8 in the assessment of credibility.
The Court stressed that the question of the amount of weight to be given to Section 8 findings was entirely a matter for the fact finder i.e. the decision maker:
“19. Section 8 can, in my judgment, be construed in a way which does not offend against constitutional principles. It plainly has its dangers, first, if it is read as a direction as to how fact-finding should be conducted, which in my judgment it is not, and, in any event, in distorting the fact-finding exercise by an undue concentration on minutiae which may arise under the section at the expense of, and as a distraction from, an overall assessment. Decision-makers should guard against that. A global assessment of credibility is required (R (Sivakumar) v Secretary of State for the Home Department 2003 UKHL 14,  1 WLR 840)”.
“20. I am not prepared to read the word “shall” as meaning “may”. The section 8 factors shall be taken into account in assessing credibility, and are capable of damaging it, but the section does not dictate that relevant damage to credibility inevitably results. Telling lies does damage credibility and the wording was adopted, probably with that in mind, by way of explanation. However, it is the “behaviour” of which “account” shall be taken and, in context, the qualifying word “potentially” can be read into an explanatory clause which reads: “as damaging the claimant’s credibility”. Alternatively, the explanatory clause may be read as: “when assessing any damage to the claimant’s credibility”. The form of the sub-section and Parliament’s assumed regard for the principle of legality permit that construction”.
“21. Section 8 can thus be construed as not offending against constitutional principles. It is no more than a reminder to fact-finding tribunals that conduct coming within the categories stated in section 8 shall be taken into account in assessing credibility. If there was a tendency for tribunals simply to ignore these matters when assessing credibility, they were in error. It is necessary to take account of them. However, at one end of the spectrum, there may, unusually, be cases in which conduct of the kind identified in section 8 is held to carry no weight at all in the overall assessment of zero credibility on the particular facts. I do not consider the section prevents that finding in an appropriate case. Subject to that, I respectfully agree with Baroness Scotland’s assessment, when introducing the Bill, of the effect of section 8. Where section 8 matters are held to be entitled to some weight, the weight to be given to them is entirely a matter for the fact-finder”.
Therefore despite the considerable delay in claiming asylum, AA in his asylum statement and during his interview demonstrated good reason for not having claimed asylum earlier. Evidence was also provided in support of his claim such as pictures of AA frequenting gay bars in his day to day life and also pictures of himself and his gay partners in the United Kingdom. Relevant and credible evidence therefore assisted AA in substantiating his asylum claim. In light of the grant of refugee status, it is also the case that in deciding his case the relevant Home Office caseworker found AA's statements coherent, plausible and did not run counter to the background evidence as regards persecution of homosexual men in Ghana.
RISK ON RETURN
It was not enough that AA was found credible. He had to show that he would be at risk of persecution on return to Ghana.
The Supreme Court in HJ & HT v SSHD 2010 UKSC 31 established the test that should be applied when assessing a claim based on fear of persecution because of an applicant's sexual orientation:
When an applicant applies for asylum on the ground of a well-founded fear of persecution because he is gay, the tribunal must first ask itself whether it is satisfied on the evidence that he is gay, or that he would be treated as gay by potential persecutors in his country of nationality.
If so, the tribunal must then ask itself whether it is satisfied on the available evidence that gay people who lived openly would be liable to persecution in the applicant's country of nationality.
If so, the tribunal must go on to consider what the individual applicant would do if he were returned to that country.
If the applicant would in fact live openly and thereby be exposed to a real risk of persecution, then he has a well-founded fear of persecution - even if he could avoid the risk by living "discreetly".
If, on the other hand, the tribunal concludes that the applicant would in fact live discreetly and so avoid persecution, it must go on to ask it why he would do so.
If the tribunal concludes that the applicant would choose to live discreetly simply because that was how he himself would wish to live, or because of social pressures, e g, not wanting to distress his parents or embarrass his friends, then his application should be rejected. Social pressures of that kind do not amount to persecution and the Convention does not offer protection against them. Such a person has no well-founded fear of persecution because, for reasons that have nothing to do with any fear of persecution, he himself chooses to adopt a way of life which means that he is not in fact liable to be persecuted because he is gay.
If, on the other hand, the tribunal concludes that a material reason for the applicant living discreetly on his return would be a fear of the persecution which would follow if he were to live openly as a gay man, then, other things being equal, his application should be accepted. Such a person has a well-founded fear of persecution. To reject his application on the ground that he could avoid the persecution by living discreetly would be to defeat the very right which the Convention exists to protect – his right to live freely and openly as a gay man without fear of persecution. By admitting him to asylum and allowing him to live freely and openly as a gay man without fear of persecution, the receiving state gives effect to that right by affording the applicant a surrogate for the protection from persecution which his country of nationality should have afforded him.
The Secretary of State should, of course, apply the same approach when considering applications of this type. Although I have, for the most part, concentrated on the position of gay men, the Secretary of State and tribunals should approach applications concerning lesbian women in the same way.
By reference to the facts of AA's claim, the Home Office would have accepted that AA is gay; that the background evidence establishes that gay people who live openly would be liable to persecution in Ghana and that AA having lived openly in the UK as a gay man would do the same in Ghana and thereby be exposed to a real risk of persecution even if he could avoid the risk by living "discreetly".
Despite the success in AA's claim, delay is clearly a factor sometimes taken into account by the Home Office to refuse asylum claims. Although an in-country right of appeal to the Tribunal may usually be available, the Tribunal although entitled to reach their own findings would still be required to take into account the same relevant immigration rules, legislation and case law as undertaken by the Home Office in the assessment of credibility. There is thus a risk that the Tribunal may also like the Home Office consider that delay has damaged an applicant's credibility.
Whilst it is not recommended to delay in claiming asylum, however the fact that there has been a delay in claiming asylum should not in the face of reasonable explanations provided by the applicant and background evidence supportive of his fear of persecution, lead to negative advice that an applicant should not claim asylum. Of course in any asylum claim there is some risk of detention at the point of claiming, however this cannot compare to the risks facing a claimant upon return to their country of origin where there is a risk of either being subjected to persecution or being forced to hide their sexuality whilst still living in fear of being discovered. As can be seen in AA's case, it is indeed possible for the Home Office to give applicants the benefit of doubt and this can result in a grant of refugee status without any refusal decision being taken.
Article by Alice Muzira - Head of Immigration Law
Monday, July 15th, 2013
REQUIREMENT FOR EEA APPLICATION FEE: A MORE ROBUST APPLICATION OF THE FREE MOVEMENT DIRECTIVE?
Following Parliamentary approval, as from 1st July 2013, for the first time an application fee of £55 is required to accompany individual applications for a document certifying permanent residence, a derivative residence card, a permanent residence card, a registration certificate, a residence card and a family member residence stamp. The fee requirement includes applications made by Bulgarian and Romanian nationals for blue or yellow registration certificates and residence cards, and for nationals of the newest EU member state, Croatia.
The Immigration Minister, Mark Harper MP earlier this year set the ball rolling towards the introduction of the fee. A Written Statement to Parliament, Immigration and Nationality Services: Change in fees for 2013 to 2014 laid in the House of Commons on 25 February 2013 provided, “I am announcing proposals to change the fees for immigration and nationality applications made to the UK Border Agency and services provided by the Agency...... There are further targeted increases for applications made within the UK, where the value of the entitlements provided to successful applicants is greater, and new fees for European residence documents".
The Guardian Article of 25 February 2013 " European Citizens in Britain will be Charged for ID Cards" reported, "A hint that ministers are close to forcing millions of European citizen residents in Britain to sign up for an identity card came when it was announced today that those who register voluntarily are to be charged for the first time".
The Immigration and Nationality (Cost Recovery Fees) Regulations 2013 No. 617 makes provision as from 1st July 2013 for fees for applications for documents referred to in the 2006 Regulations.
The Immigration (European Economic Area) (Amendment) Regulations 2013 No. 1391, within their explanatory statement express that they amend the Immigration (European Economic Area) Regulations 2006 (S.I. 2006/1003, as amended) to remove the requirements for registration certificates, residence cards, documents certifying permanent residence, permanent residence cards and derivative residence cards issued pursuant to those Regulations to be issued free of charge.
The Notice on the Home office website dated 30 June 2013, Fee for EEA Documentation Application states, “Following Parliamentary approval, there will be a fee charged for the following types of EEA documentation applications made from within the UK from 1 July 2013………All applications submitted from 00:01 (UK time) on 1 July 2013, must now be accompanied by a fee of £55. Any application not accompanied by the correct fee, even if submitted without an application form, will not be accepted”.
The front pages and the Guidance notes within Forms EEA2, EEA3, EEA1 and EEA4 all state to the following effect:
“It is not mandatory to complete this application form... Please note there is a fee of £55 for each person applying for a residence card. You must pay this fee even if you choose not to use this application form. For further information see the payment guidance notes on pages 2-4.
Please note that your application will be rejected as invalid if you do not pay the specified fee.
If the payment submitted does not cover the full cost of your application, it will be an invalid application and the form, together with any documentation submitted will be returned to you.
The fee charged is for the processing and consideration of the application. This fee will be payable once the application is received by the Home Office or its payment processing agent, regardless of the outcome of the application.
We cannot begin the consideration process until the payment has been cleared".
THE 2004 DIRECTIVE
Despite the new requirements having already come into effect 12 days ago, it is becoming increasingly difficult to shake off the feeling that the introduction of fees for EEA applications may be contrary to Community Law or at the very least that the Home Office have got it wrong in requiring a fee to be paid to the detriment of EEA nationals and their family members.
Article 25(2) of Directive 2004/38EC makes general provisions concerning residence documents and provides;
General provisions concerning residence documents
1. Possession of a registration certificate as referred to in Article 8, of a document certifying
Permanent residence, of a certificate attesting submission of an application for a family member
Residence card, of a residence card or of a permanent residence card, may under no circumstances be made a precondition for the exercise of a right or the completion of an administrative formality, as entitlement to rights may be attested by any other means of proof.
2. All documents mentioned in paragraph 1 shall be issued free of charge or for a charge not
Exceeding that imposed on nationals for the issuing of similar documents”.
Article 25(2) does not appear to preclude the introduction of an administrative charge which makes the granting of residence documents conditional on payment of a charge. Despite this however Preamble (11) to the 2004 Directive provides “The fundamental and personal right of residence in another Member state is conferred directly on Union citizens by the Treaty and is not dependant upon their having fulfilled administrative procedures".
Among others, the relevant question may therefore be whether the amount of the charge payable by EEA nationals and their family members is disproportionate as compared with the amount payable by British citizens for “similar documents". This question raises another question- what are the comparable documents? British citizens are not required to hold Identity Cards. Article 25(2) of the 2004 Directive does not require a comparison of the "same documents" but "similar documents". It is debatable whether the comparison of British Passport fees to EEA residence documents fees is the most applicable. The standard British adult passport costs £72.50. A first child passport costs £46.00.
If the British passport application fee is relevant, then it can be seen that the individual EEA application fee is lower and this may go some way towards a government argument in justifying the current EEA fee. However one cannot help but compare that residence cards and registration certificates are only granted up to 5years at a time whereas adult British passports are valid for up to 10years.
If the fee charged is not proportionate or should not have been introduced in the first place, the government may be forced to either reduce it or remove it altogether. In either case, in order to make up for the "lost revenue", administrative charges for other types of applications and permits may be raised. Prior to April 2013, No Time Limit (NTL) applications were subject to a fee of £216, but have been reduced to £147 from 6 April 2013. Therefore fees for applications such as these may rise where the government is forced to back down as regards the current EEA fees.
Where the EEA fee is not paid, the application will simply not be considered and there appears no provision for a fee exemption. It is surprising that EEA citizens are supposed to have wider rights yet even those relying upon Article 8 of the ECHR under the Immigration Rules when completing Form FLR (O) are permitted to request for a fee exemption.
Further the financial impact is significant when taking into account applications for residence documents where an applicant and 3 family members apply as this would bring the total fee to £220.00 without the possibility of a refund if the application is rejected.
On the other hand, it is important to remember that residence documents issued are only declaratory as currently residence documents are not mandatory but are used to prove the right of residence in the UK. It will be easier for an EEA national to prove his nationality and right of residence by proof of his valid passport or national ID card along with proof that he is either a jobseeker, a worker, self-employed, self-sufficient or a student. It may in some cases however become necessary for non EEA family members to apply to have their rights of residence confirmed by the Home Office so as to prove to prospective and cautious employers that they are entitled to live and work in the United Kingdom. For instance, a failed asylum seeker married to an EEA national may find it makes life a lot easier in terms of proving his/her ability to live and work in the United Kingdom via the issue of a residence card.
It however remains to be seen whether the new administrative requirement for fees in EEA applications will be subject to judicial scrutiny in the future or whether the Home Office will continue in making piecemeal changes in relation to EEA nationals and their family member’s rights of residence and other procedural changes in a seeming effort to apply the free movement Directive more robustly. If permitted to go unquestioned, it should therefore not come as a surprise as forewarned by the Guardian Article mentioned above, that the government may soon introduce a mandatory registration scheme for European citizens and their family members.
Article by Alice Muzira- Head of Immigration Law
Monday, July 8th, 2013
Scope of Legal Aid in Immigration Judicial Review Cases: Rrapaj & Ors v Director of Legal Aid Casework & Anor 2013 EWHC 1837
From 1 April 2013, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) overhauled the statutory framework for legal aid in England and Wales. The areas of law that remain eligible for legal aid are contained in Part 1 of schedule 1 to LASPO.
Rather than raise important common issues about the interpretation or application of the new legal aid provisions in Part 1 of Schedule 1 of LASPO, the seven cases heard by the High Court on 2 July 2013 instead focused almost primarily on procedural aspects in relation to the applications for funding themselves. The main issue therefore as noted by the Court became whether the applications submitted were applications for funding to challenge removal directions or whether the applications for funding were to challenge the underlying certifying decisions.
The Claimants were illegal entrants whose asylum claims had been accepted for substantive consideration by Italy, France and Malta. The claims had been certified under paragraphs 4 and 5 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004 and removal directions were set.
Legal Aid was sought however the Legal Aid Agency, the LAA, refused the applications for funding because they were interpreted as challenges to the removal directions brought within a year of the decisions to remove the Claimants and so excluded from the scope of civil legal services under paragraph 19(6)(a) of Para 19 in Part 1 of Schedule 1 of LASPOA.
Paragraph 19 in Part 1 of Schedule 1 covers judicial review, bringing judicial review within the scope of legal services. There are however various specific immigration exclusions in sub- paragraphs (5) - (7) of paragraph 19 which came into force on 1 April 2013 as below;
19(1)Civil legal services provided in relation to judicial review of an enactment, decision, act or omission.
Specific exclusions: immigration cases
(5)The services described in sub-paragraph (1) do not include services provided in relation to judicial review in respect of an issue relating to immigration where—
(a)the same issue, or substantially the same issue, was the subject of a previous judicial review or an appeal to a court or tribunal,
(b)on the determination of the previous judicial review or appeal (or, if there was more than one, the latest one), the court, tribunal or other person hearing the case found against the applicant or appellant on that issue, and
(c)the services in relation to the new judicial review are provided before the end of the period of 1 year beginning with the day of that determination.
(6)The services described in sub-paragraph (1) do not include services provided in relation to judicial review of removal directions in respect of an individual where the directions were given not more than 1 year after the latest of the following—
(a)the making of the decision (or, if there was more than one, the latest decision) to remove the individual from the United Kingdom by way of removal directions;
(b)the refusal of leave to appeal against that decision;
(c)the determination or withdrawal of an appeal against that decision.
(7)Sub-paragraphs (5) and (6) do not exclude services provided to an individual in relation to—
(a)judicial review of a negative decision in relation to an asylum application (within the meaning of the EU Procedures Directive) where there is no right of appeal to the First-tier Tribunal against the decision;
(b)judicial review of certification under section 94 or 96 of the Nationality, Immigration and Asylum Act 2002 (certificate preventing or restricting appeal of immigration decision).
(8)Sub-paragraphs (5) and (6) do not exclude services provided in relation to judicial review of removal directions in respect of an individual where prescribed conditions relating to either or both of the following are met—
(a)the period between the individual being given notice of the removal directions and the proposed time for his or her removal;
(b)the reasons for proposing that period. ..”
Instead of seeking a review of the refusal of emergency funding under Regulation 44 of the Civil Legal Aid (Procedures) Regulations SI 2012 No. 3098, applications for judicial review were launched.
It emerged as proceedings progressed that the Claimants were arguing that the applications were actually for funding to challenge the refusals to consider the asylum claims substantively and the decisions to remove to third countries. Following the clarification of the real issues, the LAA accepted that had applications been for legal aid to challenge the decisions of the Secretary of State for the Home Department(SSHD) to certify the claims under the 2004 Act, they would not have been excluded from the scope of paragraph 19 of Schedule 1 to LASPOA, nor would related applications for urgent consideration or interim relief to stay removal pursuant to the removal directions. Therefore in these circumstances as noted by Mr Justice Ouseley, the seemingly important issue as to the scope of the limitation on funding challenges to removal directions largely evaporated.
During the detailed consideration by the court of the application forms submitted for funding and the accompanying documents, out of the seven Claimants, only Mr Omar's application for funding was found to be in scope. It appears this was because Counsel's Opinion made it clear in its introduction that the decision being challenged was the certifying decision of the SSHD. The Court considered that the LAA refused the application for funding wrongly because read as a whole and taking Counsel's opinion into that reading, this was an application for funding to challenge the certifying decision and was in scope.
The other six cases were however considered to be out of scope and the Court made the following observations and conclusions:
• that the need to identify the decision being challenged in order to show that it falls within the scope of the funding provisions means the applicant specifically must set it out somewhere and ought not to expect it to be inferred from other indicia,
• the Statement of Case is where it would be expected to set out the decision being challenged in answer to the question in the application for funding "what is the main purpose of this application”,
• two fleeting references to the certifying decision or substantive consideration of the asylum case, one in language which could equally easily have referred to a decision to set removal directions, cannot suffice to show this was an application for funding to challenge the certifying decision in the face of all other indications,
• the LAA was entitled to read the six applications as applications for funding to challenge the removal directions themselves,
• In Mr Imran's case, although the Statement of Case started by stating that the challenge was to the SSHD's decision to certify the asylum claim under the 2004 Act and to set removal directions, however subsequent emails stated that as the Claimant had not claimed asylum in the UK and there was no certification on third country grounds, the challenge to removal was that it would breach his Article 3 rights. In light of these subsequent emails it could not be contended that the decision to challenge which legal funding was sought was the certification and not the removal directions alone,
• Mr Justice Ouseley was not persuaded that as a matter of approach that the LAA should try to ascertain the meaning of the applications on the basis that the applicant solicitor knows the law and would not make applications to obtain legal aid which were bound to fail,
• if solicitors are taken to know the funding law applications must be clear and well framed,
• Paragraphs 19(7)(a) covers the refusal to treat further representations as a fresh claim,
• challenges to certificate decisions are either in scope or an exception to an exclusion,
• Decisions that someone should be removed by way of removal directions fall within the scope of s82(g) of the Nationality, Immigration and Asylum Act 2002; s82 lists the appealable immigration decisions. Subsequent sections make provision for in or out of country appeals. There are certification decisions which affect the availability of in country appeals as here. There are also removal directions which can be challenged by way of judicial review but cannot be funded where the exclusions apply. There are also decisions to set removal directions which as explained are not distinguishable from the removal directions but have to be carefully distinguished from the decision that someone is to be removed by removal directions,
• the clear and specific identification of the decision being challenged also matters because it is relevant to the funding merits test,
• the decisions on applications are made by caseworkers who cannot be expected to read into a document what the applicant has not himself put in or put in clearly enough. It ought not be for subsequent correspondence let alone litigation to make clear the challenge for which funding is sought,
• Given the significance which the new LASPOA provisions give to the precise nature of the decision challenged, the application form ought to be amended to include a specific box in which that is spelled out,
• the specific decision being challenged should appear clearly in at least the application form or Statement of Case, but most obviously in the Statement of Case,
• there had been alternative and preferable remedies- once removal directions were cancelled, as happened in all the cases, and the cases were no longer urgent, the Claimants should have made substantive ordinary applications for Licensed Work under Part 4 of the 2012. This would have given the claimants the opportunity to explain exactly what decisions they were seeking to challenge and could have led to administrative review if unsuccessful. The use of the review system, after the cancellation of removal directions, the ordinary licensed work applications, would have saved court time and resource and are the first port of call before judicial review is sought,
• the decision on the merits by the LAA was insufficiently reasoned by a mere reference to the statutory provision under which the refusal was made. A short reference to the reason why an application fell outside the scope of provision could well have solved these problems. It only needed to say that the application fell into the exclusion in sub- paragraph 19(6) since it was an application for funding a challenge to the removal directions
It is disappointing that the decision in Rrapaj did not turn out to be the legal exposition on the new legal aid provisions that it was initially expected to be.
It is however worth considering whether if all the Claimant’s application forms and supporting documents for funding had been correctly completed to the Court's satisfaction, the Judgment in Rrapaj would have turned out as it did.
It can hardly be doubted that before and when the new legal aid provisions came into effect, many if not all legal aid immigration providers responsibly conducted or enabled training for their relevant caseworkers/solicitors as regards the substance and effect of the new provisions. However the decision in Rrapaj seeks to force us back to fundamental basics – ie, funding form completion.
The decision in Rrapaj is not just confined to the claimants in that litigation as no doubt the LAA will seize upon the criticisms and observations made by the Court to potentially reject funding applications where any seeming necessary "box ticking" has not been undertaken within the relevant funding application forms. Solution? Perhaps for immigration legal aid advisers to conduct immediate and detailed in -house training as regards not only completion and submission of both emergency applications and substantive applications for licensed work but also basic form completion as regards Controlled Work- ie Legal Help and Controlled Legal Representation forms. All matters considered clearly as noted by the Court, the primary issue is how the funding application forms are to be understood by the LAA. It is not how the application would be understood by an experienced immigration legal aid solicitor.
It usually is the case when applying for emergency funding, that the letter before claim, funding application forms, statement of case and Counsel's Advice/Opinion are submitted. It is essential that none of these documents and any other necessary explanatory documents contain any contradictions which would potentially take the funding application out of scope. Therefore whether or not funding is eventually applied for, preparation of the letter before claim should be drafted with the funding provisions in mind. It should not be the expectation that Counsel's Opinion should seek to later on substantially rectify any "deficiencies" which could have reasonably been addressed much earlier.
Under LASPO unless the work is explicitly listed in Part 1, Schedule 1 it is not in scope of legal aid. In Immigration and Asylum, the work that is in scope is as below:
1. Special Immigration Appeals Commission
2. Immigration: detention
3. Immigration: temporary admission
4. Immigration: residence etc restrictions
5. Immigration: victims of domestic violence and indefinite leave to remain
6. Immigration: victims of domestic violence and residence cards
7. Immigration: rights to enter and remain the United Kingdom arising from—
(a)the Refugee Convention;
(b)Article 2 or 3 of the Human Rights Convention;
(c)the Temporary Protection Directive;
(d)the Qualification Directive
8. Immigration: accommodation for asylum-seekers etc
9. Victims of trafficking in human beings
Part 2 of Schedule 1 lists the services that are excluded from scope. Part 3 of Schedule 2 excludes advocacy for all proceedings unless specifically listed. Each paragraph of Part 1 states which Part 2 and 3 exclusions apply to it and all 3 Parts should be read together to establish if advice on a matter is within scope of the Act.
Section 10 of LASPO provides the new Director of legal aid casework with the power to provide ‘exceptional funding’ for cases that are out of scope. Exceptional case funding is legal aid for a case that ordinarily is not in a category covered by legal aid. Part 8 of the Civil Legal Aid (Procedure) Regulations 2012 indicates that providers of legal services will not have delegated powers to grant exceptional funding. Instead, an application must be made to the director for an ‘exceptional case determination’.
Section 10(3) of LASPO states :
“For the purposes of subsection (2), an exceptional case determination is a determination—
(a)that it is necessary to make the services available to the individual under this Part because failure to do so would be a breach of—
(i)the individual’s Convention rights (within the meaning of the Human Rights Act 1998), or
(ii)any rights of the individual to the provision of legal services that are enforceable EU rights, or
(b)that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.
The Government intends applications for exceptional funding to be subject to a high threshold and contemplates that only a small number of cases will get exceptional funding. Guidance on the exceptional funding regime has been produced by the Lord Chancellor. Where an application for exceptional funding under section 10 of LASPO is refused, there is a procedure for seeking an internal review of that decision, but no provision for further appeal. A refusal to grant exceptional funding that is upheld on an internal review will therefore be amenable to challenge only by way of judicial review
On a positive note, as observed by the Court, the litigation in Rrapaj served to highlight the change in the provision of legal aid and how it is to be applied. The onus is however clearly upon legal aid providers to get it exactly right when making applications for legal aid funding.
Article by Alice Muzira – Head of Immigration
Northampton office moves to new location!
Wednesday, May 1st, 2013
At The First Law Partnership we continuously strive to meet the needs of our clients and streamline the way we deliver services.
With this is in mind we have relocated our presence in Northampton to be closer to the Criminal Justice Centre that has recently opened. The new address can be found on our contacts page. This location is excellent for access to the Centre and offers a professional and comfortable environment for clients to meet with us should they need to. With easy access straight off the A45 and regular bus links to all over Northamptonshire and beyond, accessing us couldn't be easier.
For more information please feel free to contact any one of our offices.