Residence test – unlawful
The Administrative Court has declared that the proposed residence test for civil legal aid is discriminatory and unlawful, following a successful judicial review challenge against the Secretary of State for Justice. The case was brought by the Public Law Project, a national legal charity that promotes access to justice, on the basis that the residence test would, if implemented, violate fundamental constitutional rights guaranteed by the common law and the European Convention on Human Rights, as incorporated into United Kingdom law by the Human Rights Act 1998.
Lord Justice Moses, delivering the unanimous leading judgment of the three-judge court, found first that the secondary legislation intended by the government to introduce the residence test is ultra vires (beyond legal authority) as the measure is not within the scope and purpose of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, and second that the test amounts to unlawful and unjustifiable discrimination in breach of the common law and the Human Rights Act.
YLAL has consistently campaigned against the residence test, including by providing a detailed response to the government’s Transforming Legal Aid consultation in which the measure was proposed. The government had stated that “individuals should in principle have a strong connection to the UK in order to benefit from the civil legal aid scheme” and that the residence test would demonstrate whether an individual had such a strong connection.
The court, however, held that it was “beyond question that the introduction of such a test is discriminatory”; indeed, that was the “declared purpose” of the proposal. Furthermore, the proposal could not be justified on the basis that it might save public money, as “the possibility of saving expense is not an aim which can be legitimately relied upon to justify discrimination”. The court also noted that the Public Law Project had provided “substantial evidence that the extent of the savings is unknown, cannot be assessed and may be illusory”.
The government had intended to bring the residence test into force using secondary legislation on 4 August 2014. The statutory instrument containing the residence test was approved by the House of Commons last week, before the outcome of this judicial review, and was due to be debated by the House of Lords on 21 July 2014. However, following the judgment, it has now been withdrawn.
The Ministry of Justice has announced that it will seek permission to appeal against the judgment. If the judgment is not overturned on appeal, the government could in theory attempt to implement the residence test through primary legislation. Any such legislation would, however, be vulnerable to challenge following the court’s clear judgment that “residence is not a lawful ground for discriminating between those who would otherwise be eligible for legal assistance”.
If introduced, the residence test would apply to all civil (i.e. non-criminal) legal aid cases and, subject to very limited exceptions, would require applicants to demonstrate both that they are currently lawfully resident in the UK and that they have been lawfully resident for a continuous period of 12 months at any point in the past. The test would not apply to certain categories of person, including babies under the age of 12 months, members of the armed forces and asylum seekers, or certain categories of case, including some (but not all) cases involving victims of human trafficking, domestic violence and forced marriage.
It would exclude from the civil legal aid scheme recent migrants and their children, people resident outside the UK as well as those in the UK who are unable to prove lawful residence for practical reasons, including homeless people. YLAL will continue to oppose any efforts to introduce a residence test for civil legal aid, which would inevitably deny access to justice to some of the most vulnerable people in society, in addition to imposing a significant administrative burden on solicitors who would have to obtain evidence from every prospective client to pass the residence test.