Residence Test – ‘Unauthorised, discriminatory and impossible to justify’

‘Unauthorised, discriminatory and impossible to justify’ – the Divisional Court gives judgment on the Lord Chancellor’s civil legal aid residence test

On 15 JUly a specially convened  three-judge Divisional Court  handed down judgment on the Lord Chancellor’s decision  to radically alter civil legal aid eligibility rules  by introducing a ‘residence test’.

The judgment is available here along with a summary. The test would withhold legal aid from recent, lawful migrants and irregular migrants including children born here many years ago. British nationals born and living abroad would fail the test, as would those unable to prove past residence  including women fleeing domestic violence, pre-school age children and the homeless. Despite the Parliamentary Joint Committees on Statutory Instruments and Human Rights both expressing concerns over its legality,  the controversial test was approved by the House of Commons last week. 32 leading NGOs have since issued a joint briefing calling on the House of Lords to reject the test using a ‘fatal motion’ on 21 July.

In today’s 40-page unanimous judgment, the Court finds that the test is unlawful, that the Lord Chancellor exceeded his statutory powers when devising it and that it would discriminate against ‘foreigners’ without justification.

The test case was brought on behalf of the Public Law Project, a small legal charity that promotes access to justice. It instructed solicitors John Halfordand Stephen Grosz at Bindmans LLP and barristers Michael Fordham QC, Ben Jaffey, Naina Patel and Alison Pickup.

Jo Hickman of the Public Law Project said today:

“We are heartened by this judgment, which embodies and articulates the finest traditions of our justice system and provides a timely illustration of the importance of judicial review as a check on unlawful executive action.” 

John Halford of Bindmans said today:

“Using powers that were never his to exercise, the Lord Chancellor has attempted to refashion  the legal aid scheme  into an instrument of discrimination  so that many of the cases Parliament  itself identified as most worthy of  support  could never be taken.  The Court’s judgment on that attempt is emphatic: it is simply unacceptable  in a country where all are equal in the eyes of the law. Legal aid is, and must remain, the means to safeguard equality in our Courts, regardless of people’s origins, nationality or place of residence.”

Giving the Court’s lead judgment, Lord Justice Moses said at paragraphs 45 and  50:

“…the Lord Chancellor now asserts a power to introduce secondary legislation which excludes, from those adjudged to have the highest priority need, those whose need is just as great, but whose connection with the United Kingdom is weaker.

… the instrument is ultra vires and unlawful.  I conclude that LASPO does not permit such a criterion to be introduced by secondary legislation.  It extends the scope and purpose of the statute and is, accordingly, outwith the power conferred ….”

adding at paragraph 60:

“It is and was beyond question that the introduction of such a test was discriminatory…  Indeed, that is its declared purpose.”

At paragraphs 82 and 83 the Court held:

“Within the system provided in Schedule 1 of LASPO, the United Kingdom is not permitted to discriminate against non-residents on the grounds that to do so might save costs….

Certainly it is not possible to justify such discrimination in an area where all are equally subject to the law, resident or not, and equally entitled to its protection, resident or not.  In my judgment, a residence test cannot be justified in relation to the enforcement of domestic law or the protection afforded by domestic law, which is applicable to all equally, provided they are within its jurisdiction.  In the context of a discriminatory provision relating to legal assistance, invoking public confidence amounts to little more than reliance on public prejudice.”

At paragraphs 27, 29, 30 and 31, the judgment highlights examples from the hundreds of pages of evidence filed in the case giving real-life examples of people who would be denied legal aid in future:

“It is not difficult to identify those on whom the application of the residence test would have a direct impact. Families of recently arrived children with special educational needs, whose access to education depends on proper provision being made to meet their additional needs, will be unable to access legal help and advice….

…individuals who lack mental capacity and are protected persons for litigation purposes, and therefore unable to litigate without a litigation friend, but who cannot meet the residence test, will be unable to access legal advice and representation… [for example]  ‘P’ a severely learning disabled adult, who had been ‘forced to live in a dog kennel outside the house, had been beaten regularly by his brother and mother, and starved over an extensive period of time’….

… the residence test will exclude from access to legal aid individuals resident abroad who have been subject to serious abuses at the hands of UK forces.”

Residence Test Briefing Paper

The briefing is supported by 32 leading NGOs which are calling for the Lords to vote against the residence test regulations in a ‘fatal motion’. They are the Public Law Project, Refuge, Liberty, Justice, Just For Kids Law,  Redress, Corum Children’s Legal Centre, Children’s Rights Alliance For England, Child Poverty Action Group, Reprieve, Prisoners Advice Service, Redress, Shelter, The AIRE Centre, Housing Law Practitioners’ Association, Legal Action Group, The Howard League For Penal Reform, Disability Law Service, Just Rights, Southall Black Sisters, Immigration Law Practitioners Association, ECPAT UK, INQUEST, Helen Bamber Foundation, Mind, Asylum Support Appeals Project, Law Centres Federation, Medical Justice, Disability Law Service, Legal Aid Practitioners’ Group, Refugee Council and Rights Watch UK.

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