Work by a representative on an immigration or asylum matter can be funded as follows:
- privately by the client;
- publicly funded where the client is eligible; or
- in some cases organisations may provide pro bono advice.
Public Funding
There have been a number of significant changes to publically funded work following the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’), which came into force on 1 April 2013. The agency which administered publically funded work was previously called the Legal Services Commission (‘LSC’). The LSC is now called the Legal Aid Agency (‘LAA’). Further in the context of immigration work, public funding is now only essentially available in cases involving asylum, detention, victims of trafficking, victims of domestic violence and forced marriage, protection of children and the Special Immigration and Appeals Commission.
As a result of LASPO the majority of immigration applications are no longer automatically eligible for public funding: they are an ‘excluded category’. LASPO includes a provision which enables the LAA to grant some funding to excluded category cases: this is known as ‘exceptional funding’.
The Lord Chancellor’s Guidance on when exceptional funding should be granted sets a high threshold and uses words like ‘rare case’ or ‘risk of breach substantial’. Unsurprisingly, of grants of exceptional funding have been rare: around 1% of exceptional funding applications in immigration cases have been granted.
A number of challenges were brought against the LAA refusal to grant exceptional funding which led to the judgement R (On the application of Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622. The court held that the guidance being issued by the LAA to make decisions on whether to grant exceptional funding was unlawful as it was effectively too stringent.
A further systemic challenge was brought and resulted in IS (by his litigation friend the Official Solicitor) v Director of Legal Aid Casework and the Lord Chancellor [2015] EWHC 1965 (Admin)) (‘IS’). This case established that the Exceptional Case Funding scheme was operating unlawfully as it gave rise to an unacceptable risk that an individual would not obtain funding where a failure to do so would breach her rights under the European Convention on Human Rights. IS was overturned in the Court of Appeal in Director of Legal Aid Casework and another v IS [2016] EWCA Civ 464. In what many consider an unsatisfactory judgement, the Court of Appeal did find that parts of the scheme are badly operated, but not quite bad enough to be unlawful. The decision is being appealed to the Supreme Court.
Publically funded work can only be carried out by law firms/organisations which have been awarded a LAA contract in the relevant area of law, e.g. for asylum law. Further, the LAA will only provide payment for work carried out by legal representatives who have been accredited under the Immigration and Asylum Accreditation Scheme (‘IAAS’).
The Legal Help scheme
This scheme enables public funding for work undertaken save for representation at an appeal hearing. The Legal Help Form (CW1) must be fully completed with the client and the client must sign it. The scheme is subject to a means and merits test. The merits tests is known as the “Sufficient Benefit test”; you would need to ask yourself ‘would a privately paying client pay in these circumstances?’. The threshold is relatively low. These tests must be assessed by the representative (who must be accredited to carry out such work). The scheme is then subject to financial limits according to the type of case. Most case will operate under the graduated fixed fee scheme (‘GFS’), which essentially limits the amount of profits costs a firm can claim, to a fixed amount.
Controlled Legal Representation
Controlled Legal Representation (CW2 form) is potentially available for representation at asylum appeals and bail applications in the Immigration and Asylum Chamber. It is subject to a merits test based on the prospects of success and a means test. In relation to the ‘prospects of success test’ the representative would need to be satisfied that there were good prospects of success, so around a 50% chance of being successful. In some circumstances there are modifications to the merits test, for example the test is modified when the client is a child.
Costs and client care
Solicitors must observe professional conduct rules in respect of costs and client care. Chapter 1 of the Code of Conduct requires accurate information to be given regarding costs (including explanations of terms such as disbursements and the application of VAT), advance costs information to be provided and clients to be kept fully informed throughout the case regarding costs. Eligibility for legal aid should be discussed and the implications of the appropriate scheme explained. In contentious matters clients should be informed of costs implications.