LS, R (on the application of) v Warrington Borough Council
[2024] EWHC 2872 (Admin)
Samer Alabboud Alhasan, R (on the application of) v The Director of Legal Aid Casework & Anor
21 August 2024
[2024] EWHC 2031 (Admin)
High Court
A person applied for asylum as a child but turned 18 before their interview. Legal aid wasn't available for adults at interviews. The court said the rule was fair, even though it meant some vulnerable young adults didn't get legal help at their interview. A request for extra funding was also refused because the court believed the person could still make their case effectively.
Key Facts
- •Claimant made a Child-Claim for asylum (under 18 at the time of application) but turned 18 before the interview.
- •Legal aid is excluded for asylum interviews with those over 18 (Civil Legal Aid (Immigration Interviews) (Exceptions) Regulations 2012).
- •Claimant's lawyer attended the interview 'at risk' after Exceptional Case Funding (ECF) was refused.
- •Claimant's asylum was granted.
- •Judicial review challenged the legal aid exclusion and ECF refusal.
Legal Principles
Article 14 ECHR prohibits discrimination in the enjoyment of Convention rights.
Human Rights Act 1998, s.6; Article 14 ECHR
For an Article 14 claim, there must be a difference in treatment of persons in analogous situations without objective and reasonable justification.
R (SC) v Work and Pensions Secretary [2021] UKSC 26
The best interests of the child are a priority in decisions affecting children (UNCRC Article 3). Children have the right to express their views and have them considered (UNCRC Article 12).
United Nations Convention on the Rights of the Child
Legal aid is available for asylum claims under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, except for attendance at Home Office interviews, unless regulations provide otherwise.
Legal Aid, Sentencing and Punishment of Offenders Act 2012, Schedule 1, Part 1, s.30
Exceptional Case Funding (ECF) is available if necessary to avoid a breach of Convention rights or if appropriate in the circumstances (Legal Aid, Sentencing and Punishment of Offenders Act 2012, s.10).
Legal Aid, Sentencing and Punishment of Offenders Act 2012, s.10
Outcomes
Claim against the Lord Chancellor dismissed.
The court found that the legal aid exclusion for over-18s at the time of the asylum interview was objectively justified. The bright line rule of age 18 at the time of the interview, while potentially resulting in some cases falling on the wrong side of the line, is a rational way to allocate limited legal aid resources and is consistent with other legislation.
Claim against the Director dismissed.
The Director's refusal of ECF was lawful and reasonable. The court found that the claimant's participation in the asylum interview was not so impaired by the lack of legal representation as to constitute a breach of Convention rights (Articles 3 or 8).
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