By Meghan Campbell and Arthur Chan
Oxford Legal Assistance (OLA) is an undergraduate and postgraduate legal aid scheme, run out of the University of Oxford and is partnered with Turpin and Miller LLP, a local legal aid firm. OLA runs a weekly clinic session which provides free preliminary consultation sessions for individuals in need of legal assistance for asylum and immigration claims.
The viability of this important work is now in jeopardy due to the brutal legal aid cuts under the Legal Aid, Sentencing and Punishment of Offender Act, 2012(LASPO).
Since the legal aid cuts in April, the OLA weekly clinic has seen a drastic decrease in the number of clients. The number of clients seeking help for their immigration claims in the past 5 weeks has dropped to fewer than 4 a session, as compared to an average of 6 clients before the cuts came into place. Patrick Jones, an OLA volunteer, remarks:
Everyone knows there is a certain amount of money, as with any form of benefit, that ends up where it potentially isn’t needed most. But this does nothing to change the fact that most legal aid goes to people who are desperately in need of it, and it is wrong for the government to axe it to this extent.
To step into this void, OLA has begun to develop with Turpin and Miller a graduate student special advice scheme. 7 postgraduate students are volunteering their time, energy and talents to work on Exceptional Case Funding Applications.
Exceptional Case Funding is a new procedure under the LASPO and allows for “exceptional legal aid to be approved for a case outside the scope of legal aid.” For the funding to be granted, the Act requires that the legal services are necessary to prevent a breach of the individual’s ECHR rights or rights of the individual to the provision of legal services that are enforceable EU rights.
As Exceptional Case Funding is very new; there is no precedent clarifying when services are necessary to protect ECHR and EU rights. The Lord Chancellor has provided guidance criteria, which indicates that the UK government perceives a successful application to be rare. The Lord Chancellor advises that it would not be “appropriate to fund simply because a risk exists of a breach of the relevant rights.” The case holder reviewing the Exceptional Case Funding Application is to ask themselves: “will withholding legal aid make the assertion of the claim practically impossible or lead to an obvious unfairness in the proceedings?” There must be a substantial risk of breaching the applicant’s ECHR and EU rights. The guidance criteria indicate that a successful application will be rare and only the minimum services required will be provided.
The OLA Graduate Student Special Advice Scheme has begun working with Turpin and Miller in preparing Exceptional Case Funding Applications for migration cases. Legal aid is not available to cover the costs of making an Exceptional Case Funding Application, although the process is time consuming and detailed. Graduate students from Oxford are stepping in to help Turpin and Miller fill this gap. While this is a viable short-term option, the number of clients who potentially meet the criteria (on an objective reading of the terms) is high.
These applicants are among the most vulnerable and marginalized in society, often with traumatic histories. While the applicant’s stories and circumstances are all unique and exceptional, their need for guaranteed legal services is not. With limited English language skills, no prior knowledge of legal process and often with past histories of abuse that leads them to be intimidated by figures of authorities, for most, the ‘unfairness’ which would arise should they be denied legal aid is ‘obvious’.
It remains to be seen if the courts will use the Exceptional Care Funding Application as a method to ensure necessary legal services. One thing is certain: time and resources will be spent on making Exceptional Case Funding Applications and on satellite litigation should these applications be refused. With the legal aid cuts still in its initial stage, it remains too early to fully assess the impact to legal aid work at the grass-root level; however the outlook is not good.
Arthur Chan, undergraduate student reading law at the University of Oxford and member of the OLA Executive Committee, and Meghan Campbell, DPhil Candidate at the University of Oxford and member of the OLA Executive Committee
If you are a solicitor in need of support in making Exceptional Case Funding applications on behalf of a client, the Public Law Project is currently running scheme to support solicitors making these applications. See here for more details.