The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2014

Excluded services: services provided to non-residents

2.—(1) Part 2 of Schedule 1 to the Act (excluded services) is amended as follows.

(2) In the opening words, after the third “Schedule” insert “or this Part of this Schedule”.

(3) After paragraph 18(1) insert—

“19(1) Civil legal services provided to an individual who does not satisfy the residence test in relation to the services.

Residence test

(2) An individual satisfies the residence test in relation to services if—

(a) on the day on which the individual makes an application for a determination under Part 1 of this Act in relation to the services in question (“the application day”), the individual is lawfully resident in the United Kingdom, the Channel Islands, the Isle of Man or a British overseas territory, and

(b) the individual is within sub-paragraph (3), (4) or (5).

(3) An individual is within this sub-paragraph if, on the application day, the individual is less than 12 months old.

(4) An individual is within this sub-paragraph if, on the application day—

(a) the individual has at any time been lawfully resident in the United Kingdom, the Channel Islands, the Isle of Man or a British overseas territory for a period of 12 consecutive months, and

(b) the total number of days on which the individual was absent from the United Kingdom, the Channel Islands, the Isle of Man and the British overseas territories during that period did not exceed 30.

(5) An individual is within this sub-paragraph if—

(a) on the application day—

(i) as a result of the determination of a claim for asylum in the individual’s favour, the individual has leave to enter, or to remain in, the United Kingdom based on rights described in paragraph 30(1) of Part 1 of this Schedule,

(ii) a period of 12 months or more has elapsed since the date on which that claim was made, and

(iii) there has been a period of 12 consecutive months beginning on or after that date during which the total number of days on which the individual was absent from the United Kingdom, the Channel Islands, the Isle of Man and the British overseas territories did not exceed 30, and

(b) when the services are provided, the individual continues to have leave to enter, or to remain in, the United Kingdom based on rights described in paragraph 30(1) of Part 1 of this Schedule as a result of the determination of the claim for asylum mentioned in paragraph (a)(i) in the individual’s favour.

Exceptions

(6) Sub-paragraph (1) does not exclude from Part 1 of this Schedule services provided to an individual if—

(a) on the application day—

(i) the individual has made a claim for asylum, and

(ii) the claim has been recorded by the Secretary of State but has not been determined or abandoned, and

(b) when the services are provided—

(i) that claim has not been determined or abandoned, or

(ii) as a result of the determination of that claim in the individual’s favour, the individual has leave to enter, or to remain in, the United Kingdom based on rights described in paragraph 30(1) of Part 1 of this Schedule.

(7) Sub-paragraph (1) does not exclude from Part 1 of this Schedule services provided to an individual if—

(a) on the application day—

(i) as a result of the determination of a claim for asylum in the individual’s favour, the individual has leave to enter, or to remain in, the United Kingdom based on rights described in paragraph 30(1) of Part 1 of this Schedule, and

(ii) a period of less than 12 months has elapsed since the date on which that claim was made, and

(b) when the services are provided, the individual continues to have leave to enter, or to remain in, the United Kingdom based on rights described in paragraph 30(1) of Part 1 of this Schedule as a result of the determination of the claim for asylum mentioned in paragraph (a)(i) in the individual’s favour.

(8) Sub-paragraph (1) does not exclude from Part 1 of this Schedule services provided to an individual if—

(a) on the application day—

(i) the individual is a resettled refugee, and

(ii) a period of less than 12 months has elapsed since the last date on which the individual entered the United Kingdom before becoming a resettled refugee, and

(b) when the services are provided, the individual continues to be a resettled refugee.

(9) Sub-paragraph (1) does not exclude from Part 1 of this Schedule services provided to an individual if, on the application day—

(a) the individual is a member of Her Majesty’s United Kingdom forces, or

(b) the individual is part of the immediate family of a member of Her Majesty’s United Kingdom forces.

Definitions

(10) For the purposes of this paragraph—

(a) an individual is not lawfully resident in the United Kingdom, the Channel Islands or the Isle of Man if the individual requires leave to enter or remain in the United Kingdom, the Channel Islands or (as the case may be) the Isle of Man but does not have it, and

(b) an individual is not lawfully resident in a British overseas territory if the individual requires an equivalent form of leave in that territory but does not have it.

(11) A reference in this paragraph to a day on which an individual was absent from the United Kingdom, the Channel Islands, the Isle of Man and the British overseas territories is a reference to a day for the whole of which the individual was so absent.

(12) In this paragraph—

“the application day”, in relation to services provided to an individual, has the meaning given in sub-paragraph (2);

“claim for asylum” means a claim by an individual for leave to enter, or to remain in, the United Kingdom based on rights described in paragraph 30(1) of Part 1 of this Schedule which is made at a time when the individual is in the United Kingdom;

“resettled refugee” means an individual who has leave to enter, or to remain in, the United Kingdom for more than 6 months, other than as a result of a claim for asylum, and who—

(a)

is a refugee, as defined in regulation 2 of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006(2), or

(b)

is accorded rights and benefits in the United Kingdom equivalent to those accorded to a refugee, as so defined.

(13) For the purposes of this paragraph a claim for asylum is determined—

(a) if the claimant does not appeal against the Secretary of State’s decision on the claim, when the period for appealing against the decision ends, or

(b) if the claimant appeals against the Secretary of State’s decision on the claim, when the appeal is finally determined or withdrawn.

(14) For the purposes of this paragraph, one individual (“A”) is part of the immediate family of another (“B”) if—

(a) they are married to each other,

(b) they are civil partners of each other,

(c) they are cohabitants (as defined in section 62(1) of the Family Law Act 1996(3)), or

(d) B is A’s parent or has parental responsibility for A.”

(1)

Paragraph 18 of Part 2 of Schedule 1 was inserted by S.I. 2013/748.

(2)

S.I. 2006/2525.

(3)

1996 c. 27. Section 62(1) was amended by section 58(1) of, and paragraph 40 of Schedule 10 to, the Domestic Violence, Crime and Victims Act 2004 (c. 28) and section 82 of, and paragraph 13(1) and (2) of Part 1 of Schedule 9 to, the Civil Partnership Act 2004 (c. 33). There are other amendments to this provision but none is relevant.