If the case for which funding is needed does engage an ECHR or EU law right, then the next question is whether the ECHR and/or Charter require legal aid to be made available. The Court of Appeal judgment in Gudanaviciene and Others v Director of Legal Aid Casework and Anor  EWCA Civ 1622 is now a fairly definitive guide to when it would be necessary.
The question under Article 6(1) ECHR is whether an unrepresented litigant is able to present their case effectively and without obvious unfairness (Gudanaviciene paragraph 56).
The test is essentially the same for Article 8 ECHR and Article 47 of the Charter as it is for Article 6 of the ECHR, although that for Article 8 is broader than Article 6 in that it does not require a hearing before a court or tribunal, but only involvement in the decision-making process.
An effective right is one which is “practical and effective, not theoretical and illusory in relation to the right of access to the courts” and “the question is whether the applicant’s appearance before the court or tribunal in question without the assistance of a lawyer was effective, in the sense of whether he or she was able to present the case satisfactorily” (Gudanaviciene paragraph 46).
In relation to fairness, the court said “it is relevant whether the proceedings taken as a whole were fair”, “the importance of the appearance of fairness is also relevant: simply because an applicant can struggle through ‘in the teeth of all the difficulties’ does not necessarily mean that the procedure was fair” (Gudanaviciene paragraph 46).
Where one party has the benefit of representation, the other will often face an obvious unfairness. The court will not be able to address the disadvantage faced by the unrepresented party. The court cannot advise a litigant or advance one party’s interests, but must remain impartial, even if it is used to dealing with litigants in person.
Assessing whether Convention or EU law rights require funding to be provided involves balancing three factors:
- the legal, factual and procedural complexity of the matter
- the importance of what’s at stake
- the applicant’s ability to represent themselves without legal assistance
Whether a case is a suitable one for ECF will depend as much on the applicant’s ability to cope with the demands of the proceedings as on the complexity of their case. A matter of very great importance to a client (for example, ceasing contact with a child, or the right to stay in the UK) might in some cases require funding even though the matter is relatively straightforward and/or the client is quite capable. Likewise, a really incapable client might need assistance with a relatively trivial or straightforward matter.
Legal, factual and procedural complexity are all relevant to whether a grant of ECF is appropriate. They should be clearly spelt out in an application to the Legal Aid Agency (LAA). It’s important to demonstrate that there are complex procedural steps that must be taken, arguments to be made, or evidence to analyse, in order to show that the complexity of the case requires a grant of ECF.
For example, in relation to immigration cases, the Court of Appeal in Gudanaviciene found that “the following features of immigration proceedings are relevant: (i) there are statutory restrictions on the supply of advice and assistance…(ii) individuals may well have language difficulties; and (iii) the law is complex and rapidly evolving” (paragraph 72).
Complexity will vary from case to case. If, for example, ECF is needed for proceedings where the facts are contested, things to consider include whether an individual without legal training would be able to:
- understand what their evidence must address
- obtain expert evidence
- effectively conduct cross-examination
- make legal submissions during a final hearing
Where someone needs ECF for advice in relation to an immigration application, consider how they will know which form they need to complete and what evidence they will need to provide for the application to be successful. If they need to apply for a fee waiver, consider whether they will know that it is possible to apply, how to do so, and what evidence to provide.
The importance of the issues at stake
As with the other factors to consider, the importance of the issues at stake will vary from case to case. For example, it should be possible to show that any proceedings affecting a family relationship are of importance to an applicant, and any proceedings which will determine the nature of the relationship an applicant will have with their child will be of vital importance.
Ancillary relief proceedings which are purely about money may be less obviously significant, but if your client will be unable to meet their basic needs, or those of any children, or to keep a roof over their heads without a satisfactory outcome then you should emphasise this to show the importance of the issue.
In immigration cases it will generally be possible to show that any proceedings are vitally important if they affect whether the applicant can remain in a country where they have built a life and where members of their family live, or enter a country where close family members live.
In Gudanaviciene the Court of Appeal considered the role played by the importance of the issues at stake in determining whether ECF should be granted. The court observed (in the context of deportation appeals) that: “This should not be regarded as a trump card which usually leads to the need for legal aid. It is no more than one of the relevant factors to be taken into account. The fact this factor will almost invariably be present in deportation cases is not, however, a justification for giving it reduced weight.” (paragraph 77).
The applicant’s ability to present their case effectively
In cases of great importance to the applicant for ECF, emotive issues may make it difficult for them to present their case with the objectivity needed.
Other factors relevant to an applicant’s ability to present their case effectively will include their physical and mental health, their level of education, and their ability to communicate in English.
However, ECF may be awarded even where there is no language barrier and the applicant has capacity to litigate. It may simply be that they cannot understand or carry out the steps they need to take in their case. See, for example, the Court of Appeal’s discussion of the case of ‘B’, one of the respondents in Gudanviciene and ors v The Director of Legal Aid Casework and The Lord Chancellor at paragraph 172 of the judgment.