While most of our attention was turned to the Chancellor making his Autumn statement in Parliament last week, the Court of Appeal overturned an earlier High Court judgment and found the Residence Test for Legal Aid to be lawful.
Regulations that were previously ruled unlawful on the basis they were ‘unauthorised, discriminatory and impossible to justify’ have now been declared lawful. The new ruling does find the regulations discriminatory – but says that this discrimination is justifiable if it results in savings to the public purse.
The Regulations, linked to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), introduced a residence test for civil Legal Aid that would prevent people who could not prove that they had been lawfully resident in the UK for 12 months from receiving Legal Aid.
So the test would withhold Legal Aid from recent, lawful migrants and migrants whose paperwork has been caught up in the system and delayed – and victims of trafficking. But it also catches some British nationals, including young children born to British parents and raised abroad. Most worrying is that it will catch some British people who might be unable to prove their past residence, such as those fleeing domestic violence or who are homeless.
Every week, Shelter advises families who are facing homelessness, destitution or the possibility of children being taken into care because local authorities have refused to accommodate them under the Housing Act 1996 or the Children Act 1989.
We often encounter people who have been lawfully resident in Britain for years, but who don’t have the documents they need in their possession to prove their status – because a person’s passport and other paperwork are with the Home Office, for example, or because a family has been illegally evicted by a private landlord and their personal papers have been lost or are locked inside their former home.
Legal Aid helps people like Jane, a young woman with a two month old baby, who came to Shelter when she faced becoming street homeless with her daughter. She had been trafficked from Nigeria by her abusive father when she was 16 and had been forced to work as a prostitute in Manchester. She managed to escape to London, where she met a man and became pregnant, but had to move out of his accommodation when he became violent towards her.
When Jane had her baby, they slept at first on the kitchen floor of a hostel where her friend was living, but eventually she was asked to leave and faced becoming street homeless with her child. We advised her to seek help from social services but they refused. Because Jane was entitled to Legal Aid, a solicitor was able to help her apply to the court for emergency help. The Court granted an injunction ordering social services to accommodate and support mother and baby.
As a result, Jane was placed in a refuge for victims of trafficking and she has now been granted leave to remain in the UK.
Jane would not be exempt from the residence test as a victim of trafficking, and would not have been able to benefit from this vital advice in housing and public law. Without proof of residence, people like Jane cannot get Legal Aid funding to challenge decisions made by local councils, leaving them and their families utterly destitute.
Shelter, and over 20 other organisations, provided evidence to the original legal challenge to the residence test, following which the lead Judge, Lord Moses, found that the test was unlawful because LASPO 2012 ‘does not permit such a criterion to be introduced by secondary legislation’ and it ‘is and was beyond question that the introduction of such a test was discriminatory …indeed that was its declared purpose’ – which couldn’t be justified. We were, of course, delighted.
But Lord Justice Laws has now said that such discrimination is justified. He held that the introduction of the residence test by way of secondary legislation was lawful and, although he recognised that the test was discriminatory, this was justified as a proportionate measure to achieve the legitimate aim of saving public expenditure. In cases where a refusal to provide Legal Aid would lead to a breach of the European Convention on Human Rights (potentially almost all housing cases and most immigration ones), the judges said that people could rely on the Exceptional Case Funding scheme. This may be true – access to ECF has increased since the Court of Appeal’s own exposure of the failings of the scheme earlier this year – but it is a cumbersome and risk-heavy process in itself.
This is devastating news for access to justice and will clearly have a discriminatory impact, as well as penalising homeless people in the most vulnerable situations.
We understand that the Public Law Project will seek permission to take this to the Supreme Court, the highest in the land. We sincerely hope that this appeal will be successful: if not, homeless families will face destitution simply because they cannot get Legal Aid to help them access justice.