Airey v Ireland is referred to as an authority for the first sentence. The use of the word "impossible" could be argued to set a very high threshold. But I do not believe it was intended to do more than indicate that what has to be considered is whether without legal assistance the remedy could be made effective. In addition, I think fairness must be a factor to be taken into account. That that is what is meant is consistent with the explanation of 47(1) which is said to be based on Article 13 of the ECHR but to go further because 'in Union law the protection is more extensive since it guarantees the right to an effective remedy before a court.

…

[59] … she has very poor command of English and, as must be obvious, she will be emotionally involved in the appeal so that she cannot approach it in an objective fashion…

[60] The reasons for refusal set out in the 26 July 2013 letter are in my view thoroughly unsatisfactory. It is said that the issues are not complex and the tribunal 'will take account of the relevant case law and legislation, including EU law and the facts of the case'. But the test under Regulation 21(5)(c) is key and it will be necessary to produce evidence to deal with the risk of harm. That does not now exist to any meaningful extent and it is difficult to follow how without assistance the claimant can be expected to obtain the necessary evidence, let alone make representations on the issue. Furthermore, there is no evidence as to whether the daughter will be able to be cared for if she were to go to Lithuania with her mother and what provision will be made for her daughter's future here. All this additional evidence cannot be obtained by the tribunal, particularly as the proceedings are adversarial. The suggestions in the refusal letter that "any further evidence in respect of your client's family or criminal case is accessible by your client and can be submitted to the First Tier Tribunal for their consideration" and "Your client can with the assistance of an interpreter, further address any question of the First Tier Tribunal and provide further factual information towards the proportionality of the decision to deport" are little short of absurd. It reflects the flawed guidance on the high level of the threshold and the exclusion of Article 8.

[61] A matter relied on by Mr Chamberlain in his skeleton argument was that the strong merits of the appeal suggested the claimant was less likely to be disadvantaged by the absence of professional representation. That in my judgment is a very dangerous argument since it suggests the more meritorious a case the less need there is for legal assistance. The dictum of Megarry J concerning awareness of open and shut cases which turned out not to be so is cautionary.

…

[94] The claimant came here in December 1998. He had thus been here for some 14 ½ years before the decision to deport him. It is common ground that he has a right of permanent residence. The issue in his case may therefore turn on whether the 10 years prior to May 2013 is interrupted by any periods of imprisonment. The guidance issued by the CJEU is not in my view as clear as Mr Chamberlain submits and there is a difficult question to be determined on the facts of the claimant's case. Those and his attitudes must be carefully assessed.

[95] There is an Article 8 claim based on his fatherhood of a child. He has split up from his partner. There can be no doubt that that claim is extremely weak and I do not think it is such as to justify legal aid.

[96] The reasons for refusing legal aid include the assertions that the claimant had had legal representation at his previous hearings and it was "speculative to think that previous errors will be repeated". In addition, it is said that proceedings before the First Tier Tribunal "are not complex either in law or procedure". That observation I find remarkable and it suggests that the author has never had experience of observing appeals before the First Tier Tribunal. The reality is, having regard both to the possibility of difficulties in dealing with contentious factual matters and, in immigration law which is taking up a substantial part of the Court of Appeal's caseload, there can be considerable complexity ...'

10. Of course, there is an appeal. Indeed, recognising the importance of the issues Collins J granted permission in all but one of the six joined Gudanaviciene cases himself; Underhill LJ has since given permission in that remaining one also. Judgment can therefore be expected from the Court of Appeal some time later this year, though that may not be the last word: it is a case which may well then go on appeal to the Supreme Court (and indeed perhaps Strasbourg or Luxembourg).

What now?

11. It is too soon to know whether the LAA’s approach will alter pending the appeal in Gudanaviciene. But it is certainly worthwhile for individuals to seek to rely on it and to consider judicial review if refused on grounds criticised in Gudanaviciene.

The appropriate test

12. X v UK having been disapproved, the best Strasbourg authority on the proper test is probably found in Steel (at paras [61]-[62]):

'The question whether the provision of legal aid is necessary for a fair hearing must be determined on the basis of the particular facts and circumstances of each case and will depend inter alia upon the importance of what is at stake for the applicant in the proceedings, the complexity of the relevant law and procedure and the applicant's capacity to represent him or herself effectively… it is not incumbent on the state to seek through the use of public funds to ensure total equality of arms between the assisted person and the opposing party, as long as each side is afforded a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-a-vis the adversary.'

13. As commented by Jo Miles,  ‘Legal Aid and "Exceptional" Funding: A Postscript’ [2011] Fam Law 1268 it is arguable that even the description of funding as ‘exceptional’ ought to be seen as misleading:

'[I]t is arguable that [ A v United Kingdom] fails accurately to capture the Convention jurisprudence on legal aid in civil cases and so is not a reliable indicator of what Article 6 requires… [Its test] finds at most limited textual basis in the language used by the Court in Airey [v Ireland (1979) 2 EHRR 305] and later decisions. While the Strasbourg Court was clear that Article 6 confers no absolute right to legal aid in civil cases and that ‘much must depend on the particular circumstances’ (para 26), the Airey judgment does not use the words ‘exceptional’, or its synonyms ‘special’ or ‘unusual’, nor does ‘practically impossible’ or anything like it appear.'

Challenges in other areas of social welfare law

14. Although the major importance of Gudanaviciene is on the X v UK point, which is of general application, all the Gudanaviciene claimants had immigration cases, and there are other, non-immigration aspects of the Guidance which might be susceptible to new challenge.

15. For example, the Guidance asserts in its section on ‘welfare benefits’ that ‘[w]here an individual is claiming a discretionary benefit, rather than a legal right, a decision on the claim will not involve a determination of the individual’s civil rights and obligations’. The two cases cited in support of this proposition are R (A) v London Borough of Croydon [2009] UKSC 8, [2010] 1 FLR 959 (which concerns the provision of social services support to children) and Tomlinson v Birmingham City Council [2010] UKSC 8 (about the provision of housing assistance to homeless people). So neither of those cases involved the payment of cash social security benefits. It seems an unusual use of language to describe what was at issue in A or Tomlinson as ‘welfare benefits’ and indeed in Tomlinson (at para [75]) Lord Kerr expressly drew the distinction which the case law recognises ‘between social security payments and social welfare provision’.

16. If the LAA used that guidance to suggest that Art 6 is not engaged by the many ‘discretionary’ decisions which will be routine in determining entitlement to new social security benefits like universal credit or personal independence payment, any such suggestion would be open to challenge as contrary to the existing case law: Schuler-Zgraggen v Switzerland (1993) 16 EHRR 405; see also Tomlinson at para [61].

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This article was originally published on the Public Law Project website and has been reproduced here with permission of the copyright owners.

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