Commentary on provisions of the Act Section 56: Legal aid
This section ensures that individuals who receive a removal notice have access to free legal advice in relation to the removal notice. Subsections (1) to (5) make provision for England and Wales and subsections (6) to (15) make provision for Northern Ireland.
	Subsections (2) to (4) amend the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("LASPO") to bring these matters into scope. Subsection (5) amends the Civil Legal Aid (Merits Criteria) Regulations 2013 to ensure that recipients of a removal notice do not have to undergo merits testing. Within the existing legal aid scheme, different merits tests are applied to different types of cases, but in summary, they are legal tests as to whether a particular case should receive legal aid. For example, for funding to be provided for full representation in a judicial review case, the legal aid applicant must be able to show that they have met a "proportionality" test (as defined in regulations) and that the prospects of success of the case are very good, good or moderate, or are borderline or marginal, and meet some other additional criteria. Other forms of merits testing may include a public interest test, a reasonable private paying individual test and cost benefit tests, depending on the type of case. Subsection (5) ensures no such merits tests will be applied in these cases.
	Subsection (2) amends paragraph 19 of Part 1 of Schedule 1 to LASPO, which provides for civil legal services in judicial review matters. Sub-paragraph (5) of paragraph 19 excludes services in relation to judicial reviews relating to immigration matters where the same, or substantially the same, issues have already been the subject of judicial review or an appeal to a tribunal or court within a period of one year. Subsection (2) disapplies these exclusions for the purposes of a judicial review of a refusal of a human rights claim that arises from Article 2 or 3 of the Human Rights Convention.
	Subsection (3) amends Part 1 of Schedule 1 to LASPO by adding in new paragraph 31C which sets out that civil legal services are made available to recipients of a removal notice. New paragraph 31C(1) stipulates that civil legal services (defined in section 8 of LASPO) can be provided to such individuals in relation to the removal notice, including in relation to: a suspensive claim relating to the removal notice; and an application under section 46(4) of the Act to the Upper Tribunal for a declaration that there were compelling reasons for the person not to make a claim within the claim period.
	New paragraph 31C(2) provides for certain exclusions in relation to the new paragraph. New paragraph 31C(3) sets out definitions.
	Subsection (4) amends Part 3 of Schedule 1 to LASPO by adding in a new paragraph 16A to put advocacy in proceedings in the Upper Tribunal under sections 44 to 49 of the Illegal Migration Act into scope. As such, where there is a right of appeal to the Upper Tribunal relating to a suspensive claim under the Act, legal aid for advocacy at the Upper Tribunal will be available.
	Subsection (5) amends the Civil Legal Aid (Merits Criteria) Regulations 2013 to provide that the civil legal services provided to recipients of a removal notice are available without the application of the merits criteria (to assess the merits of their case).
	Subsections (6) to (8) amend the Access to Justice (Northern Ireland) Order 2003. Subsection (7) inserts a new sub-paragraph (2AA) into Article 14 of the Order which disapplies a merits test for a grant of representation for the purposes of the proceedings specified. Subsection (8) brings into scope of civil legal services which may be provided, legal representation in the Upper Tribunal for proceedings as specified in new sub paragraphs (ic) and (id) to paragraph 2 of Schedule 2, relating to this Act.
	Subsections (9) to (14) amend the Civil Legal Services (General) Regulations (Northern Ireland) 2015. Subsections (11) and (13) insert new regulations 31(1A) and 41(2A) to allow for applications for advice and assistance, or representation to be made by telephone to a legal provider if a person is detained for the purposes of this Act where otherwise it would need to be made in person. Subsection (12) provides an exemption from the need to apply to the Director for an extension of advice and assistance in cases involving advice regarding removal notices under this Act. Subsection (14) provides that an application for a certificate for representation in the higher courts will be exempt from consideration on merits grounds by the Director. These two subsections effectively disapply a merits test for legal services provided in relation to removal notices.
	Subsection (15) amends the Civil Legal Services (Financial) Regulations (Northern Ireland) 2015 to provide that the civil legal services provided to recipients of a removal notice are available without an assessment of financial means.