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Lord Chancellor accepts unlawfulness of new Legal Aid scheme for immigration and asylum appeals

Wednesday 12 August 2020

Sonali Naik QC and Ali Bandegani of the Garden Court Chambers Immigration and Public Law Teams represented the claimants in two separate claims.

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On 8 June 2020 the Civil Legal Aid (Remuneration) (Amendment) (Coronavirus) Regulations 2020 (the Amendment Regulations) came into force. The Amendment Regulations established a new fee regime for the remuneration of legal aid providers for appellants whose asylum and immigration appeals are being dealt with under a new Online Procedure which had previously been in pilot phase, but was rolled out widely by the First-tier Tribunal (FtT) in mid-March 2020.

The roll-out of the Online Procedure was partly a response to the Covid-19 pandemic. However, the procedure also involved new case management directions, including the requirement for the Appellant to file a full appeal bundle and skeleton argument at a very early stage of the proceedings. It had been recognised for some time that the existing Legal Aid regime did not adequately remunerate providers for the additional and front-loaded work required by the Online Procedure, and a number of groups had called for these cases to be remunerated at hourly rates. Instead, the changes hastily introduced via the Amendment Regulations provided for a new fixed fee, set on the basis of what appeared to be limited and incomplete information about the work that was required and how this interacted with the key features of the fee scheme. The changes were immediately identified by representative bodies and Legal Aid providers as having the potential to make the situation worse.

In two separate claims, MT and others and CRA and others, the claimants challenged the Amendment Regulations on the grounds that the Lord Chancellor had failed to conduct a lawful consultation before making the Regulations, and failed to gather the information he reasonably required to make a proper decision; that the Regulations were not rationally or proportionately connected to their statutory purpose; and that the Regulations result in the unlawful restriction of access to justice for the claimants and many others. The claims were highly significant for all asylum and immigration appellants who qualify for legal aid.

The Lord Chancellor wrote to the claimants accepting that the making of the Amendment Regulations was unlawful on the basis that the consultation had been inadequate and that he had failed to satisfy his duty of inquiry. He therefore decided to revoke the Amendment Regulations and to put in place a temporary fee regime which will allow providers to undertake work under the Online Procedure in the knowledge that they will be remunerated at hourly rates.

MT and others were represented by Sonali Naik QC of Garden Court Chambers instructed by James Howard of Fountain Solicitors, who are also pursuing a linked challenge to the lawfulness of the Presidential Practice Statement (No. 2).

CRA and others were represented by Ali Bandegani of Garden Court Chambers instructed by Toufique Hossain, Jeremy Bloom and Simon Robinson of the Duncan Lewis Solicitors Public Law Team. Further details about CRA and others can be found on the Duncan Lewis website, the ILPA website and in the Law Society Gazette

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