Legal Q&A: Legal aid for unaccompanied children's immigration cases

What is legal aid?

Legal aid is funding provided by the government to help meet the costs of some types of legal advice to people otherwise unable to afford legal representation. Not all areas of law are eligible for legal aid - most immigration and private family cases are not eligible. Legal aid is also subject to a means and merits test - a financial test and a judgment on the strength of their case.

What is Exceptional Case Funding?

Exceptional Case Funding (ECF) was designed to be a safety net to allow for legal aid to be granted in cases where failing to provide funding would risk a breach of someone's human rights or European Union law. Whether it is granted will depend on the importance of the issues at stake; the complexity of the procedural, legal and evidential issues and the ability of the individual to represent themselves (or to participate in the process) without legal assistance, bearing in mind their age and mental capacity.

What support is available for looked-after children's immigration cases?

Local authorities have a duty to ensure that children in their care with unresolved immigration issues access legal advice to address these. Immigration cases are often highly procedural and legally complex, and can be difficult if not impossible for children to understand. In July 2018, the government announced that legal aid would be brought back for unaccompanied and separated children (children under the age of 18 who have been separated from both parents) who have immigration cases. Until the necessary legislation is laid, children will be presumed to be eligible for legal aid via the Exceptional Case Funding Scheme. Applications by, or on behalf of, these children will not need to be supported by detailed evidence in relation to issues relating to vulnerability and ability to participate in proceedings without legal aid. This was recently re-stated by the Legal Aid Agency at www.gov.uk/government/news/civil-news-ecf-evidence-requirements-for-separated-migrant-children.

• For more information see the Migrant Children's Project fact sheets at www.childrenslegalcentre.com/resources/