Lord Chancellor / Ministry of Justice accept that the amendments made to the Legal Aid scheme for immigration and asylum appeals were unlawful
In part as a result of the Coronavirus Pandemic, a new mandatory online procedure (‘Core Case Data’ (CCD) platform was introduced for represented Appellants bringing appeals to the First Tier Tribunal (FTT) against Asylum and Immigration decisions.
The Civil Legal Aid (Remuneration) (Amendment) (Coronavirus) Regulations 2020 (‘the Amendment Regulations’), which came into force on 8 June 2020, brought about changes to the remuneration of legal aid providers representing Appellants whose cases came under CCD.
The revised fee regime did not reflect the additional work solicitors and barristers had to undertake to properly represent their clients; in particular the requirement of a compulsory appeal skeleton argument (ASA) in every case.
Without consultation or any evidential basis, the impact of the Amendment Regulations meant that legal aid providers faced not being paid for compulsory work which threatened access to justice; leading to barristers’ chambers and solicitors alike refusing to draft the ASA under the CCD.
Fountain Solicitors represented four claimants who claims focused on the failure of the Ministry of Justice and the Lord Chancellor to consult on the content of the Amendment Regulations prior to enacting them and also for failing to undertake a rationale process of enquiry to identify the foreseeable impact on the availability and quality of legally aided representation for some of the most vulnerable members of society.
On 4 August, 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. He confirmed that the decision had been made to lay before Parliament a Statutory Instrument during September 2020 (absent of any special circumstances) to revoke the Amendment Regulations and to put into place a temporary fee regime to allow providers to undertake work under CCD that will be remunerated at hourly rates pending proper consultation on remuneration.
The legal team was made up of Sonali Niak QC (Garden Court Chambers) Tasaddat Hussain (Garden Court North Chambers) and James Howard, Fountain Solicitors.
They along with Stephen Knafler QC (Landmark Chambers) also act for the same four claimants (MT & others) and five additional claimants, represented by David Benson solicitors, Shivani Jegarajah (Justitia Chambers) Nabila Malik (No.5 Chambers) in an ongoing linked challenge to the lawfulness of the Presidential Practice Statement (No.2).
James Howard, Head of the Immigration Department at Fountain Solicitors comments:
“The Importance of this case cannot be overstated. It will have a huge and positive impact on the ability of Appellants, many of whom are the most vulnerable in society, to gain access to justice and legal representation before the First Tier Tribunal on their Immigration and Asylum appeals. As a result of the legal challenge, the Lord Chancellor’s quick acceptance that consultation had been inadequate and that the Amendment Regulations should be revoked is a welcomed first step. We look forward to the start of constructive consultation on the future of Legal Aid funding in this area.”