{"id":360,"date":"2019-07-29T12:28:02","date_gmt":"2019-07-29T12:28:02","guid":{"rendered":""},"modified":"2019-08-07T12:30:08","modified_gmt":"2019-08-07T12:30:08","slug":"impact-legal-aid-cuts-2836","status":"publish","type":"post","link":"https:\/\/www.lawteacher.net\/free-law-essays\/criminal-law\/impact-legal-aid-cuts-2836.php","title":{"rendered":"Impact of Legal Aid Cuts on Domestic Abuse and Immigration Cases"},"content":{"rendered":"

Legal aid cuts and the Legal
\nAid, Sentencing and Punishment of Offenders Act 2012 – Is justice still
\navailable to all?<\/strong><\/p>\n

While campaigners against the cuts and reforms of legal aid
\nin the United Kingdom seem to receive very little media attention, secondary
\nsources of legislation ensure transparency of the most important and impactful
\nmeasures taken by the government in creating political policies. <\/p>\n

Legal aid was first introduced in 1949 as a principal
\npillar of the welfare state with a reach of approximately 80% of British people
\nentitled, which later dropped to a 29% in 2008.[1]<\/a> There are major changes of
\neligibility to civil cases including members of households with disposable
\nincome of over \u00a3733 a month who will not qualify for legal aid on grounds that
\nthey are able to fund their own cases[2]<\/a>. Throughout this research
\nI will be visiting areas that have been strongly affected by the reforms of
\nlegal aid such as domestic abuse and immigration. <\/p>\n

The Legal Aid Sentencing and Punishment of Offenders Act
\n2012 has been in force since 1 April 2013 and governs the provision of legal
\naid across England and Wales. Under LASPO, legal aid for most children and
\nfinance matters in private family law cases will only be available where a
\nclient has specified evidence in relation to domestic violence or child
\nprotection.[3]<\/a><\/p>\n

Legal
\nAid, LASPO, Domestic Abuse and the European Convention on Human Rights.<\/strong><\/p>\n

Some human rights bodies, including the UN Human Rights
\nCommittee, have held that the failure to provide legal aid can interfere with
\nthe right to pursue legal remedies and this constitutes to human rights
\nviolation under Article 6 ECHR.[4]<\/a> However, it is visible in Airey v Ireland [1979]<\/em> that Article 6(1)
\ndoes not imply that the states must provide legal aid for disputes relation to
\na civil right.[5]<\/a><\/p>\n

Article 6(3)(c) guarantees the right to free legal aid in
\ncriminal proceedings[6]<\/a>. In the case of Airey<\/em>, a wife who had been trying to
\nobtain a decree of separation from her husband was denied access to legal aid
\nand claimed that there had been a violation of her right to a fair trial under
\nArticle 6 (1) of the convention. The court accepted that in some cases the
\npossibility of a person to represent themselves in court would be sufficient to
\nmeet the requirements of Article 6[7]<\/a>, however, the court
\nconsidered the wife most improbable to do so. Therefore, the question of
\nwhether Article 6 requires the state to provide citizens with free legal aid
\nwill depend on the circumstances of the case.[8]<\/a> Article 6(1) makes no
\nreference to legal aid.[9]<\/a> <\/p>\n

The legal aid regulations and categories of cases are found
\nunder part 1 schedule 1 of the LASPO 2012 and in the Civil Legal Aid (Procedure)
\nRegulations 2012 (the 2012 Regulations). Section 12 of the LASPO allows the Regulation
\n2012 to determine whether an individual is entitled to legal aid and it is
\nunder that provision that the 2012 Regulations has risen from.[10]<\/a> Schedule 1 paragraph
\n12(1) defines the meaning of domestic violence and the 2012 regulation 33 lists
\nto what constitutes evidence of domestic violence[11]<\/a>. The list will include conviction
\nor caution or bail or bind over for a domestic violence offence and this list
\nis not exhausted.[12]<\/a> Some categories within
\nLASPO include \u2018services which are provided to actual or potential services of
\ndomestic violence\u2019.[13]<\/a> The legislation is clear
\nto cover \u2018civil legal services in relation to home rights, occupation order,
\nnon-molestation orders and injunctions following assault, battery or false
\nimprisonment arising out of a family relationship\u2019 but excludes domestic violence.[14]<\/a> Disputes of children will
\nnot fall within the scope of part 1 of the Act and this may contrast with some
\nrights under Article 8 of the convention (Right to respect for private and
\nfamily life, home and correspondence).[15]<\/a> <\/p>\n

There is a long standing complication with the proof
\nrequirement under Regulation 33 (as amended in 2014) as it sets restrictions to
\na lot of the claims due to the lack of capacity to prove domestic abuse. Women\u2019s
\nAid\u2019s (2015) determined that 39% affected by domestic abuse were unable to
\ncomply with evidence requirement under Regulation 33.[16]<\/a> Some of the requirements
\ninclude doctors correspondences which back in 2014 were at costs of
\napproximately \u00a350 per reports.[17]<\/a> <\/p>\n

The Ministry of Justice and Legal Aid Agency (2016) writing
\non the impact on civil litigation stated that \u2018The implementation of the LASPO
\nAct in April 2013 resulted in large reductions in legal help workload\u2019[18]<\/a>. After LASPO, legal help
\ncertificates have dropped significantly with 87,532 applications made in 2014
\nand 79,854 granted.[19]<\/a> When finding a legal
\nrepresentative who deals with family law cases, the House of Commons Justice
\nCommittee (2015) found 14 authorities for which there were no lawyers taking
\ncivil legal aid cases. The women\u2019s Aid\u2019s (2015) survey found that 71% of women
\nhad difficulties finding solicitors. Travel distance also impacted applicants
\non finding representatives. This has lead applicants with two choices: to
\nrepresent their selves or to fund their own cases. <\/p>\n

A noticeable consequence of the restrictions of legal aid
\nunder LASPO has been the increased amount of applicants representing their own
\ncases.[20]<\/a> Some of the resulting problems
\nare seen in the capacity of the litigant to present relevant arguments to the
\ncourt and the lack of the courts in obtaining useful evidence of cases.[21]<\/a> The impact of applicants
\nto cause delays in trials due to passing wrong information to the courts can
\nalso be seen as a problematic factor of self-representation.[22]<\/a> Presenting arguments
\nbadly due to emotional distress also brings significant complication to the
\ncourt.[23]<\/a> <\/p>\n

As a result of requiring victims to litigate against their
\nabusers, a breach of Article 8 (righto private life) can be emerged.[24]<\/a> Disputes over child
\narrangement orders and the failure to have access to legal aid representation also
\nconstitutes to a breach of Article 8. The state\u2019s duty to protect victims of
\ndomestic abuse from breaches of Article 8 has not been fulfilled. The provision
\nof proper representation is essential in order to fulfil this duty. The burden
\nlays on the state to fulfil this duty.[25]<\/a><\/p>\n

The impact of LASPO 2012
\non migrants and their families since 2013.<\/strong><\/strong><\/p>\n

Part 1 of F. Meyler and S. Woodhouse\u2019s journal on \u2018changing
\nthe rules of immigration and withdrawing the \u2018currency\u2019 of legal aid: The
\nimpact of LASPO 2012 on migrants and their families\u2019 describes some expected
\nchanges that the Act has made since 1st<\/sup> April 2013. Some of its
\nimpact include the chances of separation between parent and child as a result
\nof the enforced removal or deportation of citizens from the United Kingdom.<\/p>\n

The Common Wealth Immigrants Act 1962 emerged controversial
\nimposition of immigrant\u2019s control on commonwealth citizens in 1962.[26]<\/a> Practitioners, including
\nThe Joint Council for the Welfare of Immigrants, were set up around the 1960\u2019s
\nto offer assistance to immigrants in need.[27]<\/a> The commonwealth citizens
\ngained rights of appeal against immigration controls under the Immigrants
\nAppeals Act 1969.[28]<\/a> Rights of appeal were
\nlater extended by the Immigration Act 1971.[29]<\/a><\/p>\n

During 2004, a decrease of how much could be spent on cases
\noccurred with representation at most interviews no longer funded except for
\nspecial circumstances\/child applicants.[30]<\/a> It was estimated that the
\nLASPO 2012 would come into force in 2013, removing \u2018a whole tranche of
\nimmigration cases from the scope of legal aid all together with its fundamental
\nand far reaching amendments to immigration rules, especially on \u2018family
\nmigration\u2019.[31]<\/a>
\nCriminal sanctions are imposed to organisations or charities who serve as
\nalternative to legal aid if both bodies are not regulated by the Office for the
\nImmigration Services Commissioner or by a qualifying regulator.[32]<\/a> Additionally, these
\norganisations including law centres faced cuts in funding from local
\nauthorities as well as their legal aid funding and were unable to give legal
\nadvice.[33]<\/a> <\/p>\n

It was estimated by the government in 2013 that after the
\nLASPO, 53,000 fewer cases would receive legal aid funding in the immigration
\ncategory, representing a 92% reduction in the number of individuals receiving
\nservices in relation to an initial application, and a 20% less in relation to
\npreparation and representation for appeal hearings.[34]<\/a> The restrictive list set
\nout in Part 1 Schedule 1 of LASPO anticipated reductions in the number of
\nimmigration cases due to its requirement of \u2018civil cases\u2019 eligibility.[35]<\/a> Some of the categories
\nunder Part 1 Schedule 1 of the Act which fall out of the scope of legal aid
\nservices, such as deportation, gained criticism due to its result of separating
\nparent from child.[36]<\/a> <\/p>\n

A main area to analyse from immigration cases and the LASPO
\nis judicial review and its special provisions, giving that the initial step
\nwould require applicants the need for legal aid. Restrictions were applied to
\nonly immigration and asylum cases, whilst other applications for judicial
\nreview remained in scope.[37]<\/a> Those who are denied
\nlegal aid for judicial review may well not be eligible for any legal aid at any
\nstage of domestic legal proceedings.[38]<\/a> Due to reasons such as
\nrepetitive results, \u2018legal aid is not available for judicial review where the
\nsame issue, or substantially the same issue, was the subject of a previous
\njudicial review or an appeal from a court or tribunal[39]<\/a>, including fresh
\nsubmissions relation to a dismissal under Article 8 (The right to respect for
\nprivate and family life).[40]<\/a> Immigration services that
\nfall out of scope from the Act, the s.10 gives entitlement to legal aid where
\nthere had been an \u2018exceptional case determination\u2019 (ECD).[41]<\/a> A breach of a person\u2019s
\nconventional rights or an enforceable EU right will occur as a result of
\nfailing to make an ECD.[42]<\/a> The question of whether
\nlegal aid is necessary to give effect to conventional rights will be determined
\non factors such as complexity of the case and the capacity of the person to
\nrepresent him or herself in court, not placing the applicant at a disadvantage.[43]<\/a><\/p>\n

Article 6 (right to a fair trial) of the convention has set
\nout difficulties in distinguishing a civil law right, where Article 6(1)
\nstandards apply, and a public law right, where Article 6(1) does not apply.[44]<\/a> Some argue that the
\nprotections of article 6 \u2018are enjoyed by those claiming rights to property and
\nother pecuniary rights, but denies protection to immigration and asylum
\nservices\u2019.[45]<\/a><\/p>\n

Article
\n13 European Courts on Human Rights- Immigration cases.<\/strong><\/p>\n

The scope of Article 6 does not, on the current
\njurisprudence of domestic courts and European Courts of Human Rights, apply to
\nimmigration proceedings but has some exceptions.[46]<\/a> Article 13 ECHR provides
\na right to an effective remedy under the convention, in this context, \u2018the
\ninability to obtain remedy before a national court for an infringement of a
\nconvention right, and can be challenged as such\u2019.[47]<\/a> This may allow the public
\nto rely on article 13 on the basis of an ECD. Article 13 therefore requires
\nanother convention right in play. Moreover, article 6 may impose difficulties
\nto determine an effective ECD, therefore for the purposes of a breach of
\narticle 13, a refusal of legal aid under article 8 will have to be established.
\nThe government has suggested that only a small percentage of \u2018negligible\u2019
\nimmigration cases will secure funding via ECD.[48]<\/a><\/p>\n

Under article 51 of the European Charter of Fundamental
\nrights, EU states are bound by its provisions when implementing EU law.[49]<\/a> Article 47 provides a
\nright to a fair hearing and article 47(3) sets a right to an effective remedy
\n\u2018legal aid shall be made available to those who lack sufficient resources in so
\nfar as such aid is necessary to ensure effective access to justice\u2019.[50]<\/a> However, Article 52(3)
\nprovides that cases may need to be found directly on EU Law \u2018provisions should
\nbe made for legal aid in accordance with the case law of the ECHR[51]<\/a> but the case of Zambrano
\nhas raised the possibility of a wider concept of EU citizenship and its
\ninterplay with fundamental rights which may or may not later a broader concept
\nof Article 47.[52]<\/a>\n<\/p>\n

The green paper sets out governments asserts when taking
\ninto account what should fall under the scope of legal aid: \u2018The importance of
\nthe issue, the litigants ability to present their own case, the likely
\nvulnerability of the litigant and the complexity of the law, the availability
\nof alternative sources of funding and the routes to solving the issue, as well
\nas domestic, European and international legal obligations\u2019.[53]<\/a> The government justifies
\nin the green paper why asylum cases have sufficient importance to remain in
\nscope of legal aid and why immigration cases does not. A distinction of life
\nand death circumstance arising from asylum and immigration cases being a matter
\nof choice of conduct under immigration is suggested by the government.[54]<\/a> <\/p>\n

Citizens entering the UK as students or to visit family
\nwill either way not qualify for legal aid, as the financial requirements of the
\nimmigration rules mean that they would be unlikely to satisfy the means test.[55]<\/a> The Immigration Law Practitioner\u2019s
\nAssociation\u2019s set out a list of none \u2018personal choice\u2019 cases in response to the
\ngreen paper. These include the joining of a spouse or child and whether people
\nwho have lived in the UK for many years should be deported after serving their
\ncriminal sentence.[56]<\/a> Family migration cases
\nengage the fundamental rights under Article 8 of the convention and Article 7 of
\nthe EU charter of fundamental rights. The House of Lords acknowledged that \u2018family
\nheavily depend, socially, emotionally and financially in each other\u2019.[57]<\/a> The concept of
\nproportionality under Article 8(2) in immigration cases has now been settled by
\nthe Supreme Court \u2018it will rarely be proportionate to uphold an order for
\nremoval of a spouse if there is a close genuine bond with their spouse\u2019.[58]<\/a> The LASPO has introduced
\nan element of disparity between areas of the Law, especially between public law
\nrights to legal aid and family law rights. Section 1 (1) of the Children\u2019s Act
\n1989 states that \u2018a child\u2019s welfare is required by the court to be at paramount
\nconsideration\u2019.[59]<\/a>
\nThe Borders, Citizenship and Immigration Act 2009 s. 55(1) and (2) s.55
\nrequires authorities and the secretary of state to operate \u2018having regard to
\nthe need to safeguard and promote the welfare of children in the UK\u2019.[60]<\/a> There is a similar duty
\nunder these Acts when dealing with minors. Family migration cases are no longer
\nunder the scope of LASPO, although \u2018some children in this position might be
\nable to establish legal aid eligibility via ECD if they were making an
\napplication relying on Article 8 ECHR.[61]<\/a> <\/p>\n

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

Conclusion
\nof Dissertaion.<\/strong><\/p>\n

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

As concluded in Marshall\u2019s seminal theory, \u2018the right to
\njustice is a fundamental component of the welfare state, as without it, other
\nrights are illusory\u2019.[68]<\/a> LASPO have caused significant
\ndismantling of legal aid services for those without the means to pay or
\nfinancial sustainability. Migrants who are separated from their family and
\napplying for entry clearance will not have a chance to reunite with their loved
\nones or the process may be exhaustive and long. For those facing a battle with
\ndeporation provisions under Part 1 Schedule 1 of the Act, it may mean that they
\nwill be separated from their family without hearing about the legal issues in
\ntheir cases. The ammendenments to the immigration rules set in 2012 means that
\napplicants will have very little advice or none at all of how it affcets their
\ncurrent status as they will not be able to fund this. Migrants entitlements to
\nlegal representation to challenge how the rules have been intreperted in their
\ncases are no longer avaibale. LASPO has overall interfered with family
\nmigrant\u2019s right to justice and effective remedy. <\/p>\n

It seems that the same result will occur when enfocing
\nArticle 47, Article 47(3) of the EU charter of fundamental rights and Article
\n13 of the ECHR. Article 13 ECHR provides a right to an effective rememdy right
\nfor a violation of other rights under the convention. This requires applicants
\nin the immigration context to plea a breach under Article 8 on the basis that their
\nrefusal to legal aid representation has interfered with their right to an
\neffective remedy. In addition, this means that Article 13 will not help
\nimmigration cases alone, another convention right needs to be in play. Familiar
\nresults appear when trying to enforce Article 47 of the EU charter of
\nfundamental rights as it is based on EU Law (importing largely from Article 13
\nECHR concepts) and might provide legal aid access to immigration cases founded
\ndirectly on EU Law.[69]<\/a> This means that the right
\nto legal aid is not absolute.<\/p>\n

In relation to domestic abuse, there are two ways that
\nLASPO can be seen to breach Human Rights. First, the denial of legal aid means
\nthat the applicant has to represent their own case leading to a breach of
\nArticle 6.[70]<\/a>
\nThis is the same issue in immigration cases. However, cases of domestic abuse
\ndiffers from immigration cases as breaches seem to apply to Article 3 and 8 of
\nthe convention from failure of the state to protect victims of domestic abuse
\nfrom breaches of Article 3 and  Article
\n8. Applications for child contact arrangements and financial orders enables the
\nabuse to continue.[71]<\/a> It is the courts and the
\nstates duty to ensure that orders and arrangements do not lead to futher
\nArticle 3 treatment. The burden of proof should not lay on victims to prove
\nthat they are at risk of domestic abuse but there is a dutyt to ensure
\nprotection from the state. Therefore, the failure to provide legal aid for
\ndisputes over children to victims of domestic abuse causes a breach of Article
\n6, Article 3 and Article 8 of the ECHR.<\/p>\n

Bibliography.<\/p>\n