Residence test declared unlawful

Today three judges in the Divisional Court ruled that the Government’s proposed residence test for non-criminal legal aid is “discriminatory” and “unlawful”.

The test is due to affect all new applications for non-criminal legal aid after 4 August 2014 and means that clients will have to produce evidence to show that they are lawfully in the UK and have been lawfully in the UK for a continuous period of 12 months. It will impact on full range of cases including private family (residence and contact orders), housing (including eviction and homeless cases), mental health work and judicial review. It will mean that the majority of non-British nationals or British nationals who have lived abroad and returned to the UK would be barred from accessing legal help and representation where they are facing homelessness, a legal case about access to their child, or the provision of essential community care services. Even for those who would pass the test, the amount of paperwork required to pass the test is likely to mean that at best their applications for legal aid are delayed and at worse they are rejected.

TV Edwards LLP represent many clients each year who need expert legal advice and assistance in the situations mentioned above and we are concerned that the residence test would not allow us to provide this crucial work to the most vulnerable in our community. Many of our fee-earners have supported the campaigning work against the residence test though organisations such as Young Legal Aid Lawyers, the Haldane society and the Legal Aid Practitioners Group. This is why TV Edwards LLP welcomes today’s judgement that fundamentally criticises the Government’s reasons for proposing the test and finds it unlawful.

The Government has said that it will appeal the judgement. However, the House of Lords is due to vote on the residence test on 21 July and we hope that the peers will not now allow to pass a measure upon the Divisional Court has found unlawful.

The claim was brought by the Public Law Project who instructed Bindmans LLP to argue the case.

Please click here to read the full judgement