(Oji) v Director of Legal Aid Casework (2024): entrenching exceptionality

Guest post by Ananya Kumar-Banerjee. Ananya studied Ethnicity, Race & Migration at Yale and is a Lincoln’s Inn GDL student, having previously worked at Detention Action.  

This post analyses a recent judicial review of the Director of Legal Aid’s decision to reject an application for legal aid. The applicant, Joyce Oji, sought legal aid for her application to a compensation scheme intended for people who suffered due to the Windrush Scandal. This judgment reveals an inability to address problems consistent across the Windrush Scandal and British immigration processes. Instead, it reinforces the idea that full rights, benefits, and access are only offered to exceptional candidates.  

Legal aid provisions in the UK are intended to ensure that all applicants have the right to a fair trial. This right is guaranteed by Article 6 of the European Convention of Human Rights (‘Convention’) and the 1998 Human Rights Act. Unfortunately, legal aid has been cut in recent years for immigration, threatening access to this right. To protect it, the UK established a special legal aid provision known as Exceptional Case Funding (‘ECF’). ECF may be granted where there is failure to do otherwise would breach a Convention right, or in a discretionary situation, as per legislation. A recent case in the High Court provided further insight into when this discretionary power might be invoked.  

Joyce Oji sought legal aid for an application to a scheme compensating those hurt by the Windrush Scandal, which disproportionately impacted Black people from Caribbean countries. In court, the judge held that legal assistance to apply to this compensation scheme was not necessary, despite reports that the application process was inordinately complicated. As a result, the Director of Legal Aid’s decision to refuse funding for legal assistance for the application was deemed lawful. In so doing, the High Court left open questions about what makes application to such compensation schemes distinct from other complex immigration applications. 

Joyce Oji arrived in the UK in 1988 at the age of 3 to join her parents. She was granted legal status allowing her to stay in the UK in 2007. However, she was only given documents formalising her status through the Windrush Scheme established in April 2019. Before then, she could not demonstrate that she had legal residence. Without these critical documents, she struggled to secure stable employment, was unable to access homelessness assistance otherwise provided to domestic violence victims like herself, and was unable to leave the country for fear she would not be allowed to return. The UK established the Windrush Compensation Scheme (‘WCS’) to cover losses suffered by those like Oji.  

The WCS shares similarities with comparable schemes (among them, the Lambeth Children’s Home Redress Scheme, the Horizon Shortfall Scheme, the Infected Blood Compensation Scheme) in that they all have clear inadequacies facing the award system. However, the WCS is distinct in the structural issues that obstruct the scheme’s ability to provide compensation as outlined by King’s College London, JUSTICE and the Home Affairs select committee. The WCS also has a lower statistical success rate than the comparable schemes mentioned above, its application is significantly longer (44 pages instead of 10-15), the eligibility criteria is itself very complex (based on immigration status and thus immigration law, known to be labyrinthine), and there was an elevated standard of proof for applicants to the scheme.  

This last fact in particular sticks out. In its early iterations, applicants to the WCS had to prove that they satisfied the criteria for an award beyond a reasonable doubt, which is the criminal standard of proof. Applications to compensation schemes move through the civil legal system, which is attached to the civil standard: the balance of probabilities. Although the WCS’ criminal standard was eventually replaced with the typified civil standard, it is significant that a criminal standard was initially used. It appears the executive branch created the scheme to be unusually suspicious of its applicants. The applicants to WCS are predominantly Black. The scheme’s unusual suspicion of its applicants seems to reflect ran inappropriate cultural instinct to conflate Blackness with criminality. In such cases, only the exceptional Black person is entitled to compensation.  

The government accepted the application process to WCS was complicated, hence establishing a group to assist those making applications. Notably, this group was associated with the very government agency responsible for the Windrush Scandal. unfortunately, their advice was insufficiently helpful for Oji’s application. Oji sought advice from the Southwark Law Centre, an advisory law service in Greater London. In proceedings, she noted she refused the advisory group’s help, in part, because she felt she was “being set up to fail,” per [13] of the judgment.  

In making Oji’s application, the Law Centre sought ECF, arguing that the case engaged her right to a fair trial, accordingly making her eligible for ECF; without, legal support, it was argued Oji would be unable to make a successful application. Oji’s counsel also argued that the refusal breached her right to family and private life (guaranteed by Art. 8 of the Convention), but this is less significant because the threshold for violating this right is very high.  

On 3 June 2024, the High Court determined that Oji was not eligible to be supported by ECF in her application to the WCS. The judgment is significant because: 1) it confirmed that one-off compensation funds like the WCS are privileges granted on a discretionary basis as opposed to rights claimants are entitled to; and 2) it limited the use of the discretionary power to grant ECF to cases where it is arguable whether a Convention right is engaged; Once it had been proved that Oji’s case did not stand to breach a Convention right, her case had no chance. It is thus clear that efforts to expand the reach of immigration legal aid funding, embodied by the key case Gudanaviciene and ors v Director of Legal Aid Casework and the Lord Chancellor (2014), have met their limit in compensation schemes.  

Rhetoric around such schemes suggests compensation after suffering harm at government hands is a right, therefore making an application to such a scheme analogous to the right to fair trial. However, in this judgement, Judge Bird noted that access to such schemes is not a civil right. There is apparently no analogy between damages provided to account for tortious liability and compensation provided to acknowledge a government wrong. Accordingly, preventing an individual from applying to the best of their ability to such a scheme is not analogous to breaching their right to a fair trial, making them insufficiently appropriate for ECF. 

If Article 6 is not engaged by any such compensation schemes, then it is for the executive alone to produce robust processes ensuring access. Minimising judicial oversight ensuring access to these schemes indicates that they are privileges offered to rare applicants at the executive’s pleasure. What fundamentally makes access to such compensation schemes a privilege, while applications for other provisions (ex. asylum accommodation) remain a right, is unclear.  

It remains to be seen whether sufficient evidence or explanation can be adduced to this effect. It is critical for the protection of the Art. 6 right that clear logic is presented for why applying to such schemes does not form the basis of a civil right (or else a social welfare or social security). For now, it appears compensation will only be afforded to applicants who present themselves as exceptional candidates worthy of a gift instead of wronged individuals seeking the fulfilment of a right. In this, the WCS is not dissimilar from rhetoric around asylum and citizenship, requiring exceptionality to fulfil certain rights. afford certain benefits.  

Any comments about this post? Get in touch with us! Send us an email, or post a comment here or on Facebook. You can also tweet us.