Impact of Legal Aid Cuts on Domestic Abuse and Immigration Cases

Legal aid cuts and the Legal
Aid, Sentencing and Punishment of Offenders Act 2012 – Is justice still
available to all?

While campaigners against the cuts and reforms of legal aid
in the United Kingdom seem to receive very little media attention, secondary
sources of legislation ensure transparency of the most important and impactful
measures taken by the government in creating political policies.

Legal aid was first introduced in 1949 as a principal
pillar of the welfare state with a reach of approximately 80% of British people
entitled, which later dropped to a 29% in 2008.[1] There are major changes of
eligibility to civil cases including members of households with disposable
income of over £733 a month who will not qualify for legal aid on grounds that
they are able to fund their own cases[2]. Throughout this research
I will be visiting areas that have been strongly affected by the reforms of
legal aid such as domestic abuse and immigration.

The Legal Aid Sentencing and Punishment of Offenders Act
2012 has been in force since 1 April 2013 and governs the provision of legal
aid across England and Wales. Under LASPO, legal aid for most children and
finance matters in private family law cases will only be available where a
client has specified evidence in relation to domestic violence or child
protection.[3]

Legal
Aid, LASPO, Domestic Abuse and the European Convention on Human Rights.

Some human rights bodies, including the UN Human Rights
Committee, have held that the failure to provide legal aid can interfere with
the right to pursue legal remedies and this constitutes to human rights
violation under Article 6 ECHR.[4] However, it is visible in Airey v Ireland [1979] that Article 6(1)
does not imply that the states must provide legal aid for disputes relation to
a civil right.[5]

Article 6(3)(c) guarantees the right to free legal aid in
criminal proceedings[6]. In the case of Airey, a wife who had been trying to
obtain a decree of separation from her husband was denied access to legal aid
and claimed that there had been a violation of her right to a fair trial under
Article 6 (1) of the convention. The court accepted that in some cases the
possibility of a person to represent themselves in court would be sufficient to
meet the requirements of Article 6[7], however, the court
considered the wife most improbable to do so. Therefore, the question of
whether Article 6 requires the state to provide citizens with free legal aid
will depend on the circumstances of the case.[8] Article 6(1) makes no
reference to legal aid.[9]

The legal aid regulations and categories of cases are found
under part 1 schedule 1 of the LASPO 2012 and in the Civil Legal Aid (Procedure)
Regulations 2012 (the 2012 Regulations). Section 12 of the LASPO allows the Regulation
2012 to determine whether an individual is entitled to legal aid and it is
under that provision that the 2012 Regulations has risen from.[10] Schedule 1 paragraph
12(1) defines the meaning of domestic violence and the 2012 regulation 33 lists
to what constitutes evidence of domestic violence[11]. The list will include conviction
or caution or bail or bind over for a domestic violence offence and this list
is not exhausted.[12] Some categories within
LASPO include ‘services which are provided to actual or potential services of
domestic violence’.[13] The legislation is clear
to cover ‘civil legal services in relation to home rights, occupation order,
non-molestation orders and injunctions following assault, battery or false
imprisonment arising out of a family relationship’ but excludes domestic violence.[14] Disputes of children will
not fall within the scope of part 1 of the Act and this may contrast with some
rights under Article 8 of the convention (Right to respect for private and
family life, home and correspondence).[15]

There is a long standing complication with the proof
requirement under Regulation 33 (as amended in 2014) as it sets restrictions to
a lot of the claims due to the lack of capacity to prove domestic abuse. Women’s
Aid’s (2015) determined that 39% affected by domestic abuse were unable to
comply with evidence requirement under Regulation 33.[16] Some of the requirements
include doctors correspondences which back in 2014 were at costs of
approximately £50 per reports.[17]

The Ministry of Justice and Legal Aid Agency (2016) writing
on the impact on civil litigation stated that ‘The implementation of the LASPO
Act in April 2013 resulted in large reductions in legal help workload’[18]. After LASPO, legal help
certificates have dropped significantly with 87,532 applications made in 2014
and 79,854 granted.[19] When finding a legal
representative who deals with family law cases, the House of Commons Justice
Committee (2015) found 14 authorities for which there were no lawyers taking
civil legal aid cases. The women’s Aid’s (2015) survey found that 71% of women
had difficulties finding solicitors. Travel distance also impacted applicants
on finding representatives. This has lead applicants with two choices: to
represent their selves or to fund their own cases.

A noticeable consequence of the restrictions of legal aid
under LASPO has been the increased amount of applicants representing their own
cases.[20] Some of the resulting problems
are seen in the capacity of the litigant to present relevant arguments to the
court and the lack of the courts in obtaining useful evidence of cases.[21] The impact of applicants
to cause delays in trials due to passing wrong information to the courts can
also be seen as a problematic factor of self-representation.[22] Presenting arguments
badly due to emotional distress also brings significant complication to the
court.[23]

As a result of requiring victims to litigate against their
abusers, a breach of Article 8 (righto private life) can be emerged.[24] Disputes over child
arrangement orders and the failure to have access to legal aid representation also
constitutes to a breach of Article 8. The state’s duty to protect victims of
domestic abuse from breaches of Article 8 has not been fulfilled. The provision
of proper representation is essential in order to fulfil this duty. The burden
lays on the state to fulfil this duty.[25]

The impact of LASPO 2012
on migrants and their families since 2013.

Part 1 of F. Meyler and S. Woodhouse’s journal on ‘changing
the rules of immigration and withdrawing the ‘currency’ of legal aid: The
impact of LASPO 2012 on migrants and their families’ describes some expected
changes that the Act has made since 1^st April 2013. Some of its
impact include the chances of separation between parent and child as a result
of the enforced removal or deportation of citizens from the United Kingdom.

The Common Wealth Immigrants Act 1962 emerged controversial
imposition of immigrant’s control on commonwealth citizens in 1962.[26] Practitioners, including
The Joint Council for the Welfare of Immigrants, were set up around the 1960’s
to offer assistance to immigrants in need.[27] The commonwealth citizens
gained rights of appeal against immigration controls under the Immigrants
Appeals Act 1969.[28] Rights of appeal were
later extended by the Immigration Act 1971.[29]

During 2004, a decrease of how much could be spent on cases
occurred with representation at most interviews no longer funded except for
special circumstances/child applicants.[30] It was estimated that the
LASPO 2012 would come into force in 2013, removing ‘a whole tranche of
immigration cases from the scope of legal aid all together with its fundamental
and far reaching amendments to immigration rules, especially on ‘family
migration’.[31]
Criminal sanctions are imposed to organisations or charities who serve as
alternative to legal aid if both bodies are not regulated by the Office for the
Immigration Services Commissioner or by a qualifying regulator.[32] Additionally, these
organisations including law centres faced cuts in funding from local
authorities as well as their legal aid funding and were unable to give legal
advice.[33]

It was estimated by the government in 2013 that after the
LASPO, 53,000 fewer cases would receive legal aid funding in the immigration
category, representing a 92% reduction in the number of individuals receiving
services in relation to an initial application, and a 20% less in relation to
preparation and representation for appeal hearings.[34] The restrictive list set
out in Part 1 Schedule 1 of LASPO anticipated reductions in the number of
immigration cases due to its requirement of ‘civil cases’ eligibility.[35] Some of the categories
under Part 1 Schedule 1 of the Act which fall out of the scope of legal aid
services, such as deportation, gained criticism due to its result of separating
parent from child.[36]

A main area to analyse from immigration cases and the LASPO
is judicial review and its special provisions, giving that the initial step
would require applicants the need for legal aid. Restrictions were applied to
only immigration and asylum cases, whilst other applications for judicial
review remained in scope.[37] Those who are denied
legal aid for judicial review may well not be eligible for any legal aid at any
stage of domestic legal proceedings.[38] Due to reasons such as
repetitive results, ‘legal aid is not available for judicial review where the
same issue, or substantially the same issue, was the subject of a previous
judicial review or an appeal from a court or tribunal[39], including fresh
submissions relation to a dismissal under Article 8 (The right to respect for
private and family life).[40] Immigration services that
fall out of scope from the Act, the s.10 gives entitlement to legal aid where
there had been an ‘exceptional case determination’ (ECD).[41] A breach of a person’s
conventional rights or an enforceable EU right will occur as a result of
failing to make an ECD.[42] The question of whether
legal aid is necessary to give effect to conventional rights will be determined
on factors such as complexity of the case and the capacity of the person to
represent him or herself in court, not placing the applicant at a disadvantage.[43]

Article 6 (right to a fair trial) of the convention has set
out difficulties in distinguishing a civil law right, where Article 6(1)
standards apply, and a public law right, where Article 6(1) does not apply.[44] Some argue that the
protections of article 6 ‘are enjoyed by those claiming rights to property and
other pecuniary rights, but denies protection to immigration and asylum
services’.[45]

Article
13 European Courts on Human Rights- Immigration cases.

The scope of Article 6 does not, on the current
jurisprudence of domestic courts and European Courts of Human Rights, apply to
immigration proceedings but has some exceptions.[46] Article 13 ECHR provides
a right to an effective remedy under the convention, in this context, ‘the
inability to obtain remedy before a national court for an infringement of a
convention right, and can be challenged as such’.[47] This may allow the public
to rely on article 13 on the basis of an ECD. Article 13 therefore requires
another convention right in play. Moreover, article 6 may impose difficulties
to determine an effective ECD, therefore for the purposes of a breach of
article 13, a refusal of legal aid under article 8 will have to be established.
The government has suggested that only a small percentage of ‘negligible’
immigration cases will secure funding via ECD.[48]

Under article 51 of the European Charter of Fundamental
rights, EU states are bound by its provisions when implementing EU law.[49] Article 47 provides a
right to a fair hearing and article 47(3) sets a right to an effective remedy
‘legal aid shall be made available to those who lack sufficient resources in so
far as such aid is necessary to ensure effective access to justice’.[50] However, Article 52(3)
provides that cases may need to be found directly on EU Law ‘provisions should
be made for legal aid in accordance with the case law of the ECHR[51] but the case of Zambrano
has raised the possibility of a wider concept of EU citizenship and its
interplay with fundamental rights which may or may not later a broader concept
of Article 47.[52]

The green paper sets out governments asserts when taking
into account what should fall under the scope of legal aid: ‘The importance of
the issue, the litigants ability to present their own case, the likely
vulnerability of the litigant and the complexity of the law, the availability
of alternative sources of funding and the routes to solving the issue, as well
as domestic, European and international legal obligations’.[53] The government justifies
in the green paper why asylum cases have sufficient importance to remain in
scope of legal aid and why immigration cases does not. A distinction of life
and death circumstance arising from asylum and immigration cases being a matter
of choice of conduct under immigration is suggested by the government.[54]

Citizens entering the UK as students or to visit family
will either way not qualify for legal aid, as the financial requirements of the
immigration rules mean that they would be unlikely to satisfy the means test.[55] The Immigration Law Practitioner’s
Association’s set out a list of none ‘personal choice’ cases in response to the
green paper. These include the joining of a spouse or child and whether people
who have lived in the UK for many years should be deported after serving their
criminal sentence.[56] Family migration cases
engage the fundamental rights under Article 8 of the convention and Article 7 of
the EU charter of fundamental rights. The House of Lords acknowledged that ‘family
heavily depend, socially, emotionally and financially in each other’.[57] The concept of
proportionality under Article 8(2) in immigration cases has now been settled by
the Supreme Court ‘it will rarely be proportionate to uphold an order for
removal of a spouse if there is a close genuine bond with their spouse’.[58] The LASPO has introduced
an element of disparity between areas of the Law, especially between public law
rights to legal aid and family law rights. Section 1 (1) of the Children’s Act
1989 states that ‘a child’s welfare is required by the court to be at paramount
consideration’.[59]
The Borders, Citizenship and Immigration Act 2009 s. 55(1) and (2) s.55
requires authorities and the secretary of state to operate ‘having regard to
the need to safeguard and promote the welfare of children in the UK’.[60] There is a similar duty
under these Acts when dealing with minors. Family migration cases are no longer
under the scope of LASPO, although ‘some children in this position might be
able to establish legal aid eligibility via ECD if they were making an
application relying on Article 8 ECHR.[61]

In conclusion with this immigration topic, it is clear to
see that some of the cuts of legal aid for representation in civil cases had
lead applicants to present their own cases in here as well as in domestic abuse
cases. It is vital to consider the background of migrants litigants in
representing theirselves and their capacity to communicate with the court and
form effective arguments having language barriers. This puts litigants at
vulnerable position and at disparity between their resources and legal
expertise. There are various other reasons why self-representing does not lead
to affair trial, including applicants health stabilities.[62]

Conclusion
of Dissertaion.

In conclusion to my entire research, legal aid funding for
civil purposes have dropped significantly to approximately one third of its
pre-laspo level over a period of three year.[63] The House of Lords have
justified the significant decrease as being the result of the lack of public
knowledge on the eligibility rules.[64] The provisions under the
Act have lead to many law centres and organisations closing down.[65] The Citizens Advice
Bureau has experienced a total of 18% fall since the Act due to its cuts in
legal aid funding.[66] Legal aid funding for
civil representation now stands at around two thirds of its pre-laspo level and
this has risen the amount of self-represented litigants.[67] Campaigners such as the
Justice Alliance, formed groups to challenge the reforms of LASPO.
Additionally, the Legal Action Group funded in 1972 and the Law society are too
campaigners formed to promote access to justice and give awareness to the cuts.
However, the work of these campaigners have received very little media
attention.

As concluded in Marshall’s seminal theory, ‘the right to
justice is a fundamental component of the welfare state, as without it, other
rights are illusory’.[68] LASPO have caused significant
dismantling of legal aid services for those without the means to pay or
financial sustainability. Migrants who are separated from their family and
applying for entry clearance will not have a chance to reunite with their loved
ones or the process may be exhaustive and long. For those facing a battle with
deporation provisions under Part 1 Schedule 1 of the Act, it may mean that they
will be separated from their family without hearing about the legal issues in
their cases. The ammendenments to the immigration rules set in 2012 means that
applicants will have very little advice or none at all of how it affcets their
current status as they will not be able to fund this. Migrants entitlements to
legal representation to challenge how the rules have been intreperted in their
cases are no longer avaibale. LASPO has overall interfered with family
migrant’s right to justice and effective remedy.

It seems that the same result will occur when enfocing
Article 47, Article 47(3) of the EU charter of fundamental rights and Article
13 of the ECHR. Article 13 ECHR provides a right to an effective rememdy right
for a violation of other rights under the convention. This requires applicants
in the immigration context to plea a breach under Article 8 on the basis that their
refusal to legal aid representation has interfered with their right to an
effective remedy. In addition, this means that Article 13 will not help
immigration cases alone, another convention right needs to be in play. Familiar
results appear when trying to enforce Article 47 of the EU charter of
fundamental rights as it is based on EU Law (importing largely from Article 13
ECHR concepts) and might provide legal aid access to immigration cases founded
directly on EU Law.[69] This means that the right
to legal aid is not absolute.

In relation to domestic abuse, there are two ways that
LASPO can be seen to breach Human Rights. First, the denial of legal aid means
that the applicant has to represent their own case leading to a breach of
Article 6.[70]
This is the same issue in immigration cases. However, cases of domestic abuse
differs from immigration cases as breaches seem to apply to Article 3 and 8 of
the convention from failure of the state to protect victims of domestic abuse
from breaches of Article 3 and  Article
8. Applications for child contact arrangements and financial orders enables the
abuse to continue.[71] It is the courts and the
states duty to ensure that orders and arrangements do not lead to futher
Article 3 treatment. The burden of proof should not lay on victims to prove
that they are at risk of domestic abuse but there is a dutyt to ensure
protection from the state. Therefore, the failure to provide legal aid for
disputes over children to victims of domestic abuse causes a breach of Article
6, Article 3 and Article 8 of the ECHR.

Bibliography.

• Cruz de Carvalho v Portugal [2007] ECHR 18223/04
• Children’s Act 1989
• Emmerson and Platt [2014]
• European Convention on Human rights
• EU Charter of Fundamental Rights
• F.Meyler* and S. Woodhouse, ‘changing in the immigration rules and withdrawing the ‘currency’ of legal aid: the impact of LASPO 2012 on migrants and their families’ [2013] vol 35
• Green Paper Para.
• Huang v SSHD [2007] UKHL 11, para. 18
• Immigrants Appeals Act 1969 Part 1(2)
• Immigration Act 197
• Impact Assessment, Annex A: Scope para.10, table 3
• ILPA Consultation response at p. 8
• ILPA Response to Ministry of Justice Consultation: Proposals for the Reform of Legal Aid in England and Wales, p. 7
• EB (Kosovo) (FC) v Secretary of State for the home department [2008] UKHL 41
• Law centres Network, 2016
• Lindner v Rawlins [2015] EWCA Civ61, Para.34
• Low Commission, 2014:7
• Maaoula v France [2000] ECtHR 39652/98
• Marshall 1950, pp. 10-11
• Ministry of Justice Legal Aid Agency 2016a
• Ministry of Justice, November 2010
• MG v JG [2015] EWHC 564
• Mc Vicar v United Kingdom (Application 46311/99) (2002) 12 BHRC 567, [2002] ECHR 46311/99
• Proposals for the Reform of Legal Aid in England and Wales, Consultation Paper CP12/10
• Ruiz Zambrano (EU citizenship) [2011] EUECJ C-34/09 (08 March 2011) Article 20 TFEU
• Re H [2014] EWFC B12
• Rew (a child) [2014] EWCA Civ 772
• Trinder and Hunter [2015]
• The Ministry of Justice and Legal Aid Agency [2016] Writing on the impact on civil litigation (2018)
• The Common Wealth Immigrants Act 1962
• The Joint Council for the Welfare of Immigrants
• The Legal Services Act 2007 Schedule 4
• The Borders, Citizenship and Immigration Act 2009 s. 55(1) and (2) s.55
• The House of Lords Justice Committee 2015
• Thomas v Jamaica, views of 3 November 1997 II rep of the human rights committee, GAOR, 53rd sess, sup no 40, UN Doc a/53/40, 1 (1998) [2018].
• Uk, R v immigration officer ex parte quahquah 200 INRL 196
• Women’s Aid’s [2016]

Table
of cases

• Cruz de Carvalho v Portugal [2007] ECHR 18223/04
• Huang v SSHD [2007] UKHL 11, para. 18
• EB (Kosovo) (FC) v Secretary of State for the home department [2008] UKHL 41
• Lindner v Rawlins [2015] EWCA Civ61, Para.34
• Mc Vicar v United Kingdom (Application 46311/99) (2002) 12 BHRC 567, [2002] ECHR 46311/99
• MG v JG [2015] EWHC 564
• Maaoula v France [2000] ECtHR 39652/98
• Re H [2014] EWFC B12
• Rew (a child) [2014] EWCA Civ 772
• Ruiz Zambrano (EU citizenship) [2011] EUECJ C-34/09 (08 March 2011) Article 20 TFEU
• Thomas v Jamaica, views of 3 November 1997 II rep of the human rights committee, GAOR, 53rd sess, sup no 40, UN Doc a/53/40, 1 (1998) [2018].
• Uk, R v immigration officer ex parte quahquah 200 INRL 196

Table of Authorities.

[1] Neasa MacErlean, ‘Legal
Aid: Who qualifies and how much help can you get?’ (The guardian 2018) < https://www.theguardian.com/money/2010/sep/25/legal-aid-reforms-public-sector-job-cuts> accessed 17/11/19

[2]Legal Aid Agency, ‘KEYCARD 54’ (2018) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/756742/Eligibility-keycard_54.pdf >accessed 19/11/2018

[3] Legal Aid Agency, ‘Evidence required
for family law matter’ (8^th January 2018) https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/672143/evidence-requirements-private-family-law-matters-guidance-version-8.pdf – accessed 05/11/18

[4]Thomas v
Jamaica, views of 3 November 1997 II rep of the human rights committee, GAOR,
53rd sess, sup no 40, UN Doc a/53/40, 1 (1998), [2018])

[5]
Airey v Ireland [1979] 2 EHRR 305,
[2018]

[6]
European convention on Human Rights section 6(1)(c)

[7]
McVicar v
United Kingdom (Application 46311/99) (2002) 12 BHRC 567, [2002] ECHR 46311/99

[8]
Steel
and Morris v United Kingdom ECHR [2015] EMRL (314)

[9]
Essaadi v France, Application No. 49384/99, 26 February 2000

[10] Legal Aid Sentencing and Punishment of
Offenders Act 2012 s12(1)

[11] The Civil Legal Aid (Procedure)
Regulations 2012 (33)

[12]Shazia Choudrhy & Jonathan herring
[2017] A human right to legal aid?- ‘The implications of changes to the legal
aid scheme for victims of domestic abuse’, Jornal of Social Welfare and Family
Law, 39:2, 152-167, DOI: 1080/09649069.2017.1306344 – page 160

[13] (n10) Part 1 Schedule 1 s.9

[14] (n10) Part 1 Schedule 1 paragraph 11

[15] (n 10)Paragraph 12(8)(a)

[16] Women’s Aid’s [2016]

[17] Emmerson and Platt [2014]

[18] The Ministry of Justice and Legal Aid Agency [2016] Writing on the
impact on civil litigation (2018).

[19] (n 12) page 161

[20] MG v JG [2015] EWHC 564.

[21] Trinder and Hunter [2015]

[22] Lindner
v Rawlins [2015] EWCA Civ61, Para.34

[23] Rew
(a child) [2014] EWCA Civ 772

[25] (n12) page 166 paragraph 4

[26] The Common Wealth Immigrants Act 1962.  F.Meyler* and S. Woodhouse, ‘changing in the
immigration rules and withdrawing the ‘currency’ of legal aid: the impact of
LASPO 2012 on migrants and their families’ [2013] vol 35  page 56

[27] The Joint Council for the Welfare of
Immigrants

[28] Immigrants Appeals Act 1969 Part 1(2)

[29] Immigration Act 197

[30] (n27)
Para 6 page 56

[31] (n27) paragraph 7
page 56

[32] The Legal Services Act 2007 Schedule 4

[33] (n27) page 57

[34] ibid

[35] (n10) s.9

[36] (n10) Part 1 schedule 1

[37] (n10) Part 1 Schedule 1, para.19(7)

[38] (n27) Page 50

[39] (n10) Part 1 Schedule 1, Para. 19(7)(b).

[40] (n27) Page 59

[41] (n10) s10

[42] Ibid

[43] Cruz de Carvalho v
Portugal [2007] ECHR 18223/04

[44] Maaoula v France [2000] ECtHR 39652/98

[45] (n27) page 60

[46] Uk, R v immigration officer ex
parte quahquah 200 INRL 196

[47] (n27) page 61 Article
13 ECHR

[48] Impact Assessment, Annex A: Scope para.10,
table 3

[49] Article 51 EU Charter of Fundamental Rights

[50] Article 47 ibid.

[51] C-
279/09 DEB 9 [2010] ECR I-13849 [33]

[52] Ruiz
Zambrano (EU citizenship) [2011] EUECJ C-34/09 (08 March 2011) Article 20 TFEU

[53] Proposals for the Reform of Legal Aid
in England and Wales, Consultation Paper CP12/10 Ministry of Justice, November
2010

[54] Para. 4.201, Green Paper

[55] ILPA Response to Ministry of Justice
Consultation: Proposals for the Reform of Legal Aid in England and Wales, p. 7

[56] ILPA Consultation response at p. 8

[57] Huang
v SSHD [2007] UKHL 11, para. 18

[58] EB
(Kosovo) (FC) v Secretary of State for the home department [2008] UKHL 41

[59] Section 1 (1) of the Children’s Act
1989

[60] The Borders, Citizenship and
Immigration Act 2009 s. 55(1) and (2) s.55

[61] (n27) page 67

[62] Re H [2014] EWFC B12

[63] Ministry of Justice and Legal Aid
Agency, 2016a

[64] The House of Lords Justice Committee
2015

[65] Law centres Network, 2016

[66] Low Commission, 2014:7

[67] Ministry of Justice Legal Aid Agency
2016a

[68] Marshall 1950, pp. 10-11

[69]
Article 51 EU Charter of Fundamental Rights.

[70]
MG and JG [2015] EWHC 564 (fam) para. 10

[71]
(n12)page 166