The Residence Test

Posted on: June 4th, 2013 by Jess Flanagan

This proposal introduces a Residence Test for all people applying for civil legal aid. This has 2 parts:

 1. an individual would be required to be lawfully resident in the UK at the time that an appliction for legal aid was made; and

2. they must have been resident for at least 12 months continually.

 This test requires lawyers giving family, community care and housing advice to become immigration specialists in order to ascertain whether or not someone has a right to reside and how it can be evidenced. This is prior to legal aid being granted and as such, becomes another unfunded task for legal aid lawyers. Another incentive not to carry out these types of work.

 Whilst I do not have a professional view in respect of immigration or asylum cases, or indeed housing cases where an individual requires legal advice in respect of homeslessness, there will be times where foreign nationals will require representation for community care matters, including Court of Protection applications.

 Putting aside the well argued Human Rights points (please see response to consultation by the Housing Law Practitioners Association and the excellent briefing by the British Institute of Human Rights) the question that struck me is as follows:

 ‘What happens if a vulnerable adult, who may lack the requisite mental capacity to make decisions concerning their place of residence and care, is brought to this country by a member of their family against their will and arguably contrary to their best interests?’

 Section 63 of the Mental Capacity Act 2005 gives effect to the Convention on the International Protection of Adults and Schedule 3 to the Mental Capacity Act 2005 provides for mutual recognition of protective measures imposed by a foreign court, even if that court isnt situated in a country that has signed up to the Convention. By refusing a foreign national access to our court by virtue of refusing them access to legal aid and legal representation could arguably constitute a breach of this Convention, which entered into force on 01.01.2009. Currently, individuals would be able to access legal aid should they be financially eligible for legal representation in proceedings to try and sort out what is in their best interests.

 Will this individual be caught by the proposal? If they have been brought here within the past 12 months – yes. Does this mean that the individual concerned, if they come to the attention of the Court of Protection and subject best interests proceedings, will fall foul of the 2nd part of the Residence Test and even if  they are financially eligible for legal aid will not benefit from legal representation? Yes.   

 This cannot be right and I would suggest further analysis of implementing a test that threatens to undermine the rule of law and the princples of equality before the law and is set to deny whole groups of people access to the courts.

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