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Government plans to introduce legal aid residence test ‘unlawful’

Plans to introduce a residence test for legal aid claimants are “unlawful”, the High Court has declared.

The proposals, expected to come into force next month, would limit legal aid, in the limited instances in which it is still available, to those with a ‘strong connection’ to the UK. Applicants would need to have been lawfully resident in the country for 12 months in order to claim, regardless of the merits of their case.

National legal charity the Public Law Project applied for a judicial review of the Lord Chancellor’s plans, arguing that they were unlawful.

Sitting in the Queens Bench division of the High Court, Lord Justice Moses, Mr Justice Collins and Mr Justice Jay agreed. Regulations made under an act of parliament must be consistent with the overall aims of that act, they said. The Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) was intended to limit legal aid to those in need, and the planned residence test would be inconsistent with that aim.

Lord Justice Moses declared:

“Leaving aside questions of financial resources and merits, no example can be found within the primary legislation of a distinction drawn between those entitled to civil legal services and those who are not on grounds other than assessment of need.”

The Public Law Project had also argued that the residence test would amount to discrimination. The Court agreed here too, saying the plans would amount to a breach the fundamental legal principle of equality before the law. Lord Justice Moses said:

“Feelings of hostility to the alien or foreigner are common, particularly in relation to the distribution of welfare benefits. But they surely form no part of any justification for discrimination amongst those who, apart from the fact that they are ‘foreign’, would be entitled to legal assistance. Certainly it is not possible to justify such discrimination in an area where all are equally subject to the law, resident or not, and equally entitled to its protection, resident or not.”

Read the full judgement here.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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  1. Andrew says:

    Oh frabjous day, calloo, callay . . .

  2. Pete says:

    No surprise there then, why should Judges stop lawyers making lots of money trawling the rest of the world for customers while getting their own back at the government. After all its not just a British injustice system is it !

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