Gudanaviciene & Ors, R (on the application of) v The Director of Legal Aid Casework & Or

Factual and Procedural Background

These appeals concern decisions by the Director of Legal Aid Casework ("the Director") to refuse applications for civil legal aid under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("LASPO") and the Lord Chancellor's Exceptional Funding Guidance (Non-Inquests) ("the Guidance"). The Director refused applications for exceptional case funding ("ECF") under section 10 of LASPO. The cases were consolidated due to common issues involving the circumstances in which the European Convention on Human Rights ("the Convention") and the EU Charter of Fundamental Rights ("the Charter") require the provision of legal aid in civil cases.

Collins J granted judicial review in six cases, holding the Guidance unlawful for misstating the circumstances under which legal aid must be provided under section 10(3) of LASPO and articles 6 and 8 of the Convention and article 47 of the Charter. The appellants pursue appeals in five cases, challenging the Director's refusals of ECF. The court considered statutory provisions, the Guidance, and relevant case law in reassessing these appeals.

Legal Issues Presented

1. What is the proper interpretation of section 10(3) of LASPO regarding the provision of exceptional case funding?
2. Is the Lord Chancellor's Exceptional Funding Guidance compatible with article 6 of the European Convention on Human Rights and article 47 of the EU Charter of Fundamental Rights?
3. Is the Guidance compatible with article 8 of the Convention in immigration cases?
4. Are the Director's refusals of exceptional case funding lawful in the specific appeals of the named appellants?

Arguments of the Parties

Appellant's Arguments

• The judge erred by imposing a "high level of probability" test for breaches under section 10(3)(a) of LASPO and a "substantial risk" test for breaches under section 10(3)(b), whereas the statute confers discretion rather than a duty to fund in the latter.
• The Guidance sets an improperly high threshold for granting legal aid, misrepresenting the case law on articles 6 and 8 of the Convention and article 47 of the Charter.
• Article 8 procedural obligations can require legal aid in immigration cases, contrary to the Guidance's assertion that no such obligation exists.
• In individual cases, appellants argued that legal aid was necessary for effective participation due to complexity, vulnerability, or the importance of the issues at stake.
• Regarding LS's case, it was argued that article 12(2) of the Trafficking Directive confers a right to legal aid at the early referral stage, which the Director denied.
• For B's case, appellants contended that the right to family reunion arises from the Refugee Convention and is thus in scope for legal aid.
• In other cases, appellants submitted that refusals of exceptional funding were unreasonable given the complexity and significance of the appeals.

Respondent's Arguments

• The Director's discretion under section 10(3)(b) is not a duty to fund, and the threshold for breaches under section 10(3)(a) requires a clear breach, not a high probability.
• The Guidance correctly reflects the high threshold required by the case law to justify legal aid under articles 6 and 8.
• Article 8 does not require legal aid in immigration cases as these do not involve the determination of civil rights within article 6's scope.
• Article 12(2) of the Trafficking Directive applies only to criminal investigations and proceedings, not to early referral stages; thus, no right to legal aid arises at that stage.
• The right to family reunion does not arise from the Refugee Convention within the meaning of LASPO's scope, as it is not contained in the Convention but only referenced in the Final Act, so it falls outside legal aid scope.
• Legal aid refusals were lawful as appellants could participate effectively without legal assistance or had access to other support mechanisms.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by interpreting section 10(3) of LASPO, rejecting the notion that an exceptional case funding (ECF) determination requires proof "to a high level of probability" or a "substantial risk" of breach. Instead, the court held that the Director must make an ECF determination when it is of the opinion that failure to provide legal aid would be a breach of the individual's Convention or EU rights. The Director has discretion under section 10(3)(b) to make a determination when it is "appropriate" considering any risk of breach, but this discretion is not confined to rare or exceptional cases.

The court found that the Guidance misrepresented the effect of the ECtHR jurisprudence on article 6(1) and article 47 of the Charter by imposing a "very high threshold" for legal aid, which was not supported by case law. The Guidance improperly signaled that legal aid would only be required in rare and extreme cases, contrary to Strasbourg authorities such as Airey, P, C and S, and Steel and Morris. The court emphasized the importance of considering the complexity of the case, the importance of the issues, and the applicant's capacity to represent themselves effectively.

Regarding article 8 in immigration cases, the court agreed that procedural obligations under article 8 can require legal aid to ensure effective involvement in decision-making, and that the Guidance's assertion that no legal aid obligation arises in immigration cases was incorrect. The court applied the article 8 test from cases such as W v UK, holding that procedural fairness requires sufficient involvement in decision-making, which may necessitate legal aid depending on complexity and vulnerability.

In the appeals, the court applied these principles to the facts of each case. It dismissed the appeal in the case of Ms Gudanaviciene, finding no breach requiring legal aid. It allowed the appeal in LS's case, concluding the refusal of legal aid was unlawful. The appeal in Mr Reis's case was dismissed, as the court found legal aid was appropriately refused given the circumstances and existing assistance. The appeal in B's case was dismissed on the basis that family reunion rights do not arise from the Refugee Convention for legal aid purposes, but the court recognized that legal aid was necessary under article 8 for effective participation. The appeal in Ms Edgehill's case was allowed, finding the refusal of legal aid was unlawful given the complexity and significance of the appeal.

The court also noted that specialist tribunals' inquisitorial approach can assist litigants in person, but in some cases early legal advice may be more important than representation at hearing, suggesting consideration for providing ECF for early advice.

Holding and Implications

The court's final decisions on the appeals were as follows:

• Appeal of Ms Gudanaviciene: DISMISSED.
• Appeal of LS: ALLOWED.
• Appeal of Mr Reis: DISMISSED.
• Appeal of B: DISMISSED.
• Appeal of Ms Edgehill: ALLOWED.

The court held that the Lord Chancellor's Exceptional Funding Guidance is incompatible with articles 6(1) and 8 of the Convention and article 47 of the Charter in relevant respects, particularly due to an improperly high threshold for granting legal aid. The Guidance's statement that no legal aid obligation arises in immigration cases under article 8 is incorrect and must be amended.

These rulings clarify the correct legal tests for exceptional case funding under LASPO, emphasizing that the Director must make determinations based on whether refusal would breach Convention or EU rights without imposing an artificially high threshold. The decisions directly affect the parties by requiring reconsideration or granting of legal aid in specific cases but do not establish new precedent beyond clarifying the interpretation of LASPO and the Guidance.