A High Court judge has dismissed a claim for judicial review in a case where legal aid for a Home Office asylum interview was refused because the interviewee had turned 18 by the time of his interview.
Mr Justice Fordham found the director of legal aid casework and the lord chancellor had not acted unlawfully.
The judgment in Samer Alabboud Alhasa v The Director of Legal Aid Casework & Anor centres on Samer Alabboud Alhasan, who arrived in the UK in 2022 when he was 17 and made a claim for legal aid. He was 18 by the time of his asylum interview.
His lawyer attended the interview after applying for exceptional case funding (ECF) which, if granted, would be backdated. The interview went ahead and asylum was granted. However ECF was refused and refused again on review. Permission for judicial review challenging the legal aid and ECF refusal was granted.
The judge said: ‘This case is about the assistance of a lawyer in an important decision-making context, but it is not about access to a court or effective judicial protection…It is a careful look; but a light touch. That is how I have seen the nature and intensity of review, and the width of the latitude.’
He said it was ‘clear (and manifest) that there is a reasonable foundation’ for the differential treatment.
Finding the director’s refusal of exceptional case funding was ‘legally correct’, the judge said: ‘The reasoning … stands as a cogent explanation of the basis for a legally correct decision. The question is not whether the claimant’s position would have been “improved by representation”, which “will very often be the case”. The question is whether the circumstances fell below a line of inability to participate effectively in the administrative asylum proceedings without obvious unfairness, having regard to the process as a whole and all the circumstances.' The director of legal aid casework, the judge said, 'answered that question correctly'.
Dismissing the application in its entirety, the judge also ordered the claimant pay the lord chancellor’s costs ‘on the standard basis, save that as the claimant is publicly funded, this costs order shall not be enforced without a determination by a costs judge of the amount which it is reasonable…to pay’.
Shu Shin Luh, instructed by Greater Manchester Immigration Aid Unit, represented Alhasan. Malcolm Birdling, instructed by the Legal Aid Agency, for the director of legal aid casework and Tom Tabori, instructed by the Government Legal Department, represented the lord chancellor.
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