ANNEX C: Detailed explanatory note for Part 1 of Schedule 1 Paragraph 19: Judicial review
880.Sub-paragraph (1) brings within the scope of civil legal aid services provided in relation to judicial review. Sub-paragraph (2)(a) applies the exclusions in Part 2 with the exception of personal injury or death, a claim in tort in respect of negligence, a claim in tort in respect of assault, battery or false imprisonment, a claim in tort in respect of trespass to goods, a claim in tort in respect of trespass to land, damage to property, a claim in tort in respect of breach of statutory duty, a claim for damages in respect of a breach of Convention rights where the claim is made in reliance on section 7 of the Human Rights Act 1998, civil legal services in relation to a benefit, allowance, payment, credit or pension under certain enactments, and compensation under the Criminal Injuries Compensation Scheme. Sub-paragraph (2)(b) also applies the exclusion in Part 3. Judicial review for the purposes of this paragraph includes any procedure in which a court, tribunal or other person mentioned in Part 3 of Schedule 1 is required by an enactment to make a decision applying the principles that are applied by the court on an application for judicial review (see the definition of “judicial review” in sub-paragraph (10)). Applications for bail in connection with an application for judicial review are in scope by virtue of paragraph 5(1)(a) of Part 4 of Schedule 1.
881.Sub-paragraph (3) excludes services that may be provided in relation to judicial review that do not have the potential to produce real benefits for the applicant, for the applicant’s family or for the environment. This means that civil legal aid may not be made available for representative actions by way of judicial review. However, sub-paragraph (4) ensures that if services have been provided in relation to a judicial review then those services do not cease to be available if subsequently the judicial review ceases to have the potential to produce the benefit referred to in sub-paragraph (3).
882.Subject to sub-paragraphs (7) and (8), sub-paragraph (5) excludes services provided in relation to judicial review relating to immigration (including issues relating to rights described in paragraph 30 of Part 1 of this Schedule (immigration: rights to enter and remain)) 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 1 year, starting on the day the previous judicial review or appeal was determined and the prior judicial review or appeal was not determined in the applicant’s or appellant’s favour or by a decision by the UKBA to withdraw its decision.
883.Subject to sub-paragraphs (7) and (8), sub-paragraph (6) excludes services provided in relation to judicial review of removal directions, where the directions were given not more than a year after the later of the decision to remove the individual from the United Kingdom by way of removal directions, the refusal of leave to appeal against such a decision or the determination or withdrawal of an appeal against such a decision.
884.Sub-paragraph (7) provides that sub-paragraphs (5) and (6) do not exclude services provided to an individual in relation to judicial review of a negative decision in relation to an asylum application (within the meaning of the Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status) where there is no right of appeal to the First-tier Tribunal against the decision or in relation to judicial review of a certificate issued under section 94 or 96 of the Nationality, Immigration and Asylum Act 2002. Section 94 allows the Secretary of State to issue a certificate on a number of different grounds, such as that an asylum claim is clearly unfounded, and the certificate prevents an appeal to the First-tier Tribunal being brought while an individual is in the United Kingdom. Section 96 allows the Secretary of State to issue a certificate preventing an appeal to the First-tier Tribunal on an issue where a person has already had an opportunity to raise the issue in an earlier appeal.
885.Sub-paragraph (8) provides that the exclusions at sub-paragraphs (5) and (6) do not prevent civil legal services from being provided in relation to judicial review of removal directions in prescribed circumstances. These circumstances would be prescribed in regulations and must relate to the period of notice given of removal and/or the reasons for proposing that period.