Current and recent cases
PLP has a varied caseload. You can click the links below to take you to different cases and case areas. Our Exceptional Case Funding project has a seperate page, with more details here, and there is a Residence test Q & A page here.
Exceptional Case Funding (ECF) systemic challenge ('IS')
PLP has been instructed to bring judicial review challenges to the Legal Aid Agency’s Exceptional Case Funding decision-making. Of particular note is the case of IS, in which PLP is instructed by the Official Solicitor to challenge the refusal to grant Exceptional Case Funding to an incapacitated individual, and challenge the way in which the Exceptional Case Funding scheme was operating. IS was one of several claimants in Gudanaviciene and ors v Director of Legal Aid Casework and the Lord Chancellor  Civ 1622 (Admin) which established that the guidance followed by decision-makers was unlawfully restrictive and that Exceptional Case Funding can be available for immigration matters. The systemic challenge (I.S.(by his litigation friend the Official Solicitor) v Director of Legal Aid Casework and the Lord Chancellor  EWHC 1965 (Admin)) established that the Exceptional Case Funding scheme was operating unlawfully as it gave rise to an unacceptable risk that an individual would not obtain funding where a failure to do so would breach her rights under the European Convention on Human Rights or under EU law. Our press release is here.
Residence Test Case
There is a more comprehensive Q & A about the test and PLP's legal challenge to its implementation, here.
The government intends to introduce a test of ‘residence’ to determine whether a person is eligible for legal aid by passing regulations under the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO). If the test is implemented, only those who are lawfully resident, and who have been lawfully resident for a certain amount of time, or come within limited exceptions, will be able to get legal aid funding. Those who do not pass the residence test will only be able to get legal aid if they are granted exceptional case funding by the Legal Aid Agency. We have written a Q & A regarding the test here.
PLP has brought a judicial review challenge which, if successful, could prevent it from being introduced. PLP’s challenge succeeded in the Divisional Court in 2014. You can access the judgment here and our press release, here. The Court found that, in introducing the test, the Lord Chancellor had exceeded the power given to him by Parliament in LASPO. The Court also found that the test was unjustifiably discriminatory.
The Lord Chancellor appealed and, in December 2015, the Court of Appeal reversed the judgment of the Divisional Court. You can access the judgment here. The Court of Appeal found that the introduction of the residence test was within the power of the Lord Chancellor and that any discrimination was justified. PLP has applied to the Supreme Court for permission to appeal the decision of the Court of Appeal, and we hope that the Supreme Court will decide to hear the case.
Rights of Women
Under LASPOA, claimants who are survivors of domestic abuse satisfying the definition in the Act have a right to legal aid for the family proceedings listed in the Act.
This case raised questions whether the domestic violence evidence gateway in regulation 33 Civil Legal Aid (Procedure) Regulations is ultra vires the Act, in that it unlawfully cuts down the definition of “domestic violence” in LASPOA and/or frustrates its statutory purpose, preventing large numbers of women from accessing the legal aid they should be entitled to. In particular the domestic violence gateway imposes a 24 month time limit on most forms of evidence, although there is no time limit within which abuse must have occurred to satisfy the definition in the Act. It also fails to provide for the kinds of evidence that could demonstrate the non-physical kinds of abuse in the definition, such as financial abuse, psychological abuse or coercion and control, or a risk of abuse.
The Divisional court dismissed the claim and held that regulation 33 is lawful. In practice that means that legal aid applicants must satisfy the existing evidence requirements in regulation 33 to be entitled to legal aid for family proceedings. The judge in this case said that the MoJ should review the scheme to make sure it complies with the Human Rights Act.
In February 2016 The Court of Appeal ruled that evidence requirements which have been operating to prevent survivors of domestic abuse from getting legal aid for family cases are unlawful. The Lord Chancellor is not appealing the decision.
The judgement can be found here.
W & BB: the use of ‘diplomatic assurances’.
In 2005 the Home Office started a programme to deport persons who were considered to be a risk to national security who could not otherwise be deported to their home countries because they were at a real risk of torture, inhuman or degrading treatment in breach of Article 3 ECHR. Algeria was one such country where it was accepted that our clients (and a number of other Algerian men facing deportation) would face a risk of torture, inhuman or degrading treatment if deported to Algeria. To get around this obstacle to deportation the UK government sought an ‘assurance’ from the Algerian government that the human rights of these men would not be violated if they were deported to Algeria. President Bouteflika of Algeria and the Algerian Ministry of Justice gave an assurance to Prime Minister Tony Blair and the UK Foreign Office that the ‘human dignity’ of these men would be respected if they were to return to Algeria. However there were two fundamental concerns about the use of diplomatic assurances
(1) verification – how can one reliably check that the assurances are being complied with? Those who use torture know how to conceal the signs of torture or inhuman and degrading treatment and how to silence and intimidate those who come forward to make allegations about torture. The Algerian government have repeatedly refused to accept any form of independent external monitoring that the assurances were being complied with
(2) the powerful military security/intelligence agency known as the DRS would be responsible for the detention and interrogation of our clients. Very little is known about this highly secretive branch of the security forces. They have never been prosecuted for the use of torture against any terrorist suspect. It is questionable whether the civilian government would have control over any mistreatment of our clients or know about the conditions they are kept in once they are in the hands of the DRS. The position of the UK government is that it is inconceivable that the Algerian government would breach the assurances given for these men given the harm it would do to the bilateral relationship with the UK. SIAC has considered the issue of diplomatic assurances with Algeria four times. Its decisions have been remitted to it for rehearing on 3 occasions for errors of law (twice by the Court of Appeal and once by the Supreme Court). The appeals are now in their 11th year. During that time the men have been subjected to either lengthy periods of detention or highly restrictive bail conditions that include curfews, tagging, tightly defined boundaries that they must remain in, restrictions or complete bans on them using computers or smart phones or tablets. In some cases the curfews have been so lengthy they have amounted to deprivations of liberty. SIAC heard the remitted appeals from 5 to 13 November and a decision is awaited.
ZZ: exclusion from the UK under EU law.
This case concerns the exclusion of a dual French/Algerian citizen from the UK on grounds of national security. He had lived in the UK on and off since the 80s and had been married to a British citizen since 1990 with a number of children who are also British. He had been granted permanent residence in the UK as a citizen of the EU exercising his treaty rights and indefinite leave to remain. He travelled to Algeria in August 2005. While he was abroad on a short trip the Home Office cancelled his indefinite leave to remain, without a right of appeal, so he was unable to return to the UK. He attempted to return to the UK in September 2005 by flying to the UK. He was refused entry and removed to Algeria the next day, however he was given a right of appeal. However, he knew very little of the reasons for his exclusion and why it was being said that he was a risk to national security. The Home Office refused to disclose the core of the case against him and was able to do this because it had his appeal transferred to SIAC where it is able to withhold evidence from an appellant on the grounds that it would not be in the interests of national security to disclose it. This ‘closed’ material was disclosed to Special Advocates who were appointed by the Attorney-General to represent ZZ. However once they saw the closed material they were unable to take any instructions from ZZ in response to the allegations. The central issue in this case was what EU law required in terms of the level of disclosure that should be given to an individual who is subject to a decision to interfere with his fundamental EU law right of freedom of movement. This question was eventually referred by the Court of Appeal to the Court of Justice of the European Union, which held that the essence of the grounds of the national security case had to be disclosed to the individual. The Court of Appeal decided that ZZ had not been given the essence of the grounds of the national security case and that it had to be remitted to SIAC. ZZ received some further limited disclosure and after he answered the case against him SIAC decided that ZZ was no longer a risk to national security and allowed his appeal. The Home Office accept that ZZ can no longer be excluded from the UK under EU law. However there remains a technical issue to be decided by the Court of Appeal as to the date that the risk should be assessed. Should it be September 2006, the date that ZZ was refused entry to the UK, as SIAC held that ZZ could be lawfully excluded at that date? Or should it be November 2014, the date of the hearing – at which time SIAC decided that the exclusion of ZZ could no longer be justified? There is one further issue which ZZ has cross-appealed, namely whether SIAC did provide him with adequate disclosure of the essence of the grounds. ZZ continues to argue that the level of disclosure given to him continues to be inadequate and he still does not know the essence of the grounds of the case against him and has not been able to answer the allegations. If he had had this it would make a difference because he could answer the case against him and clear his name. We await a hearing date.
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Whether refusal of income support and right to reside to a pregnant 17 year old Polish national estranged from her parents, who had brought her to the UK as a child, was proportionate, whether the claimant had a right of residence directly under Article 20 TFEU. This case was heard by the Supreme Court in March and further submissions were made after the hearing. Judgment is now awaited.
reference to Court of Justice of the European Communities by the Supreme Court
The EU co-ordination rules for social security allow people who have worked and paid NI contributions to take benefits which cover certain risks such as old age, sickness and invalidity with them when they move within the EU. This case is about whether the rules allow someone disability living allowance to Spain in circumstances where the claimant is no longer working, but has paid national insurance contributions which entitle her to a state retirement pension when she reaches retirement age.
The Supreme Court has decided to refer a series of questions to the CJEU as follows:
(1) Is the care component of the United Kingdom's Disability Living Allowance properly classified as an invalidity rather than a cash sickness benefit for the purpose of Regulation No 1408/71?
(2) (i) Does a person who ceases to be entitled to UK Disability Living Allowance as a matter of UK domestic law, because she has moved to live in another member state, and who has ceased all occupational activity before such move, but remains insured against old age under the UK social security system, cease to be subject to the legislation of the UK for the purpose of article 13(2)(f) of Regulation No 1408/71?
(ii) Does such a person in any event remain subject to the legislation of the UK in the light of Point 19(c) of the United Kingdom's annex VI to the Regulation?
(iii) If she has ceased to be subject to the legislation of the UK within the meaning of article 13(2)(f) , is the UK obliged or merely permitted by virtue of Point 20 of annex VI to apply the provisions of Chapter 1 of Title III to the Regulation to her?
(3) (i) Does the broad definition of an employed person in Dodl apply for the purposes of articles 19 to 22 of the Regulation, where the person has ceased all occupational activity before moving to another member state, notwithstanding the distinction drawn in Chapter 1 of Title III between, on the one hand, employed and self-employed persons and, on the other hand, unemployed persons?
(ii) If it does apply, is such a person entitled to export the benefit by virtue of either article 19 or article 22? Does article 22(1)(b) operate to prevent a claimant's entitlement to the care component of DLA being defeated by a residence requirement imposed by national legislation on a transfer of residence to another member state?
We have brought a number of challenges in relation to local authority’s duties to destitute families under s 17 Children Act 1989, including cases relating to the adequacy of support provided and the suitability of accommodation.
The High Court has held that a client of PLP had his Article 8 ECHR rights to family life breached when the Home Office refused to grant him travel costs (as part of his asylum support package) for him to travel to see his child.
It is now clear that the Home Office's obligation in respect of asylum support (in particular under section 96(2) Immigration and Asylum Act 1999) does extend to covering travel costs to facilitate contact with close family members in certain circumstances.
In this case, the applicant’s child lived with his British Citizen mother. The Home Office accommodated the applicant in asylum support accommodation over a hundred miles away from the two of them. The applicant was not able to afford to travel to see his child on a regular basis with the use of his standard asylum support package of £36.95 per week. Whilst the mother supported contact, she was of modest means and unable to facilitate such contact herself. The High Court declared that the Home Office’s refusal to provide the applicant with any travel costs in these circumstances breached the applicant’s Article 8 rights; it quashed the decision of the Secretary of State for the Home Department; and ordered a fresh decision be made. The Home Office subsequently granted regular travel costs to PLP’s client.