Residence Test Thrown Out by Supreme Court

Last week the Supreme Court, in a unanimous judgment, found against the Ministry of Justice (‘MoJ’) preventing them from introducing the ‘residence test’ scheme this summer.  This is an incredible win for legal aid and social justice and we at ILC could not be more proud of the Public Law Project (‘PLP’)!

What is the ‘residence test’?

In 2013 the MoJ issued a consultation paper, Transforming Legal Aid, proposing that applicants for civil legal aid be

  • lawfully resident in the UK, Crown Dependencies or British Overseas Territories at the time the application is made; and
  • lawfully residing in the UK, Crown Dependencies or British Overseas Territories for 12 months.

The MoJ provided exceptions to this test for armed forces personnel, asylum seekers.

The justification for this test was a concern over individuals with little or no connection to the UK who are able to benefit from the civil legal aid scheme without having contributed themselves (e.g. those who have not had to pay taxes in the UK).

Timeline

2013: Consultation paper by MoJ released.

2014: PLP challenges the proposal in the High Court who rule against the MoJ stating that the justice secretary did not have the powers to introduce the regulation through secondary legislation and that the test was excessively discriminatory.

2015: The Court of Appeal overturns the previous decision stating that the ruling placed an unjustifiable restraint on the government’s ability to control the legal aid budget and that the discrimination based on residence was not a characteristic ‘specially protected’ by law, such as sex or race.

2016: After the first day of a scheduled two-day hearing, the Supreme Court unanimously finds against the MoJ after just a few minutes of deliberation.

What does this mean?

At the outset, the MoJ will not be able to roll out the scheme this summer as intended.  Following the judgment, a MoJ spokesperson said: ‘We are of course very disappointed with this decision. We will now wait for the full written judgment to consider.’

This is a very important decision for the future of legal aid in the UK and could not have been possible without the hard work of PLP, Bindmans LLP, and barristers of Blackstone Chambers and Doughty Street Chambers.

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