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Court order provides clarity on availability of legal aid for victims of trafficking and modern slavery

Date of Publication: 
1 May 2018
Summary: 

Lord Chancellor concedes a claim for judicial review against the refusal of legal aid

Court order provides clarity on availability of legal aid for victims of trafficking and modern slavery

01 May 2018
EIN

Doughty Street Chambers said yesterday that a recent decision by the Lord Chancellor to concede a claim for judicial review against the refusal of legal aid is an important advance for victims of trafficking and modern slavery.

The case involved a client of the Anti Trafficking and Labour Exploitation Unit (ATLEU), known as LL, who was trafficked to the UK and sexually exploited as a child.

Last year, the Legal Aid Agency concluded that LL did not have a right to free immigration advice, thus changing the Legal Aid Agency's interpretation of trafficking victims' entitlement to legal aid.

ATLEU says this change of interpretation came as a real shock to those working with victims of trafficking as the Government had been saying publicly for the previous four years that there was a right to legal aid for victims in such cases.

LL took the Lord Chancellor to court through an application for judicial review, arguing she was entitled to legal aid for immigration advice whilst the Government considered whether she was a victim of trafficking.

According to Doughty Street Chambers, the Lord Chancellor conceded LL's application for judicial review a day before the High Court hearing was due to take place. The order was approved by Mr Justice Walker on 18 April 2018 and can be downloaded here, together with a statement of reasons.

Doughty Street Chambers reported that the Legal Aid Agency confirmed last week that the declaration contained in the order was circulated to its relevant casework teams. The Legal Aid Agency's new position will be published on its website very soon.

ATLEU says LL's determination provides greater clarity for all victims of modern slavery about their entitlement to free legal advice. The Government has revised its position and confirmed that victims of trafficking:

  • Have the right to legal aid for immigration advice where they need advice on leave to enter or remain and have a government decision they are a potential victim of trafficking (called a "reasonable grounds" decision) or definitely a victim of trafficking (called a "conclusive grounds" decision);
  • Have the right to legal aid where they argue they should be granted discretionary leave to remain as a victim of trafficking;
  • Have the right to legal aid whether the immigration application is made formally or informally (i.e., whether or not an application form is used when requesting leave); and
  • Have the right to legal aid for advice about whether they are a victim of trafficking or not, but only when they are getting advice on leave to enter or remain too (for any reason not just because they are victim).

For further information, see ATELU's briefing here on legal aid and immigration advice for victims of modern slavery in the wake of LL's determination. The briefing includes information on practical steps that immigration lawyers should take.

The Anti-Trafficking Team at Doughty Street Chambers will be holding a trafficking seminar on 15 June 2018 to discuss LL and other recent developments, including the case of PK (Ghana), R (On the Application Of) v The Secretary of State for the Home Department [2018] EWCA Civ 98.