Author : Mark Stokes (LondonMark)
The MM case has made a big step forward on its journey through the English Court system yesterday. (The official notice should be published on the Supreme Courts website at the end of this month when it publishes the monthly list of permissions to appeal)
Even though there seemed to be a lack of news during the last few months many things have been happening in the background and the legal teams have been kept busy. The first hurdle they have had to overcome has been applying for the case to be funded from Legal Aid.
Just this month the legal aid legislation has been criticised in a ruling at the court of appeal as being ‘disgracefully complex’ by Lord Justice McCombe. Our learned friend Justice Blake had already in his Bunning ruling back in November 2013 said that the draft of the new regulations 'are likely to give rise to very real difficulty within the profession in knowing how to apply for legal aid'
As several different parties are involved in this case each one had to apply individually and a costed case plan submitted under the new system. The last of the applications seeking permission to appeal were finally able to be made in January after this hurdle had been overcome.
When being considered for legal aid, generally any case that has less than a 50% chance of being successful at a substantive final hearing is refused legal aid at the stage of evaluating its prospects. So by gaining legal aid funding the case has already been evaluated as having a more than 50% chance of being successful.
During July-September 2014 out of 81 immigration case applications only 11 were granted legal aid (page 35 of Legal Aid Statistics in England and Wales July to September 2014)
Before everybody gets too optimistic we do not know what they used as the measure of success. In this case it could be that success is only gaining clarity that the new rules were legal or not.
As several different parties are involved in this case each one had to apply individually and a costed case plan submitted under the new system. The last of the applications seeking permission to appeal were finally able to be made in January after this hurdle had been overcome.
When being considered for legal aid, generally any case that has less than a 50% chance of being successful at a substantive final hearing is refused legal aid at the stage of evaluating its prospects. So by gaining legal aid funding the case has already been evaluated as having a more than 50% chance of being successful.
During July-September 2014 out of 81 immigration case applications only 11 were granted legal aid (page 35 of Legal Aid Statistics in England and Wales July to September 2014)
Before everybody gets too optimistic we do not know what they used as the measure of success. In this case it could be that success is only gaining clarity that the new rules were legal or not.
Why is gaining permission to appeal such a big step forward?
This is like having a provisional on paper hearing to decide if the case has a strong enough argument to be heard in the Supreme Court.
The majority of applications are refused permission to appeal.
So how hard is it to gain permission?
In April (a month with the Easter break) only one case applied to appeal to the Supreme Court and was refused permission to appeal.
In March of this year 23 cases applied to appeal to the Supreme Court; only 3 were given the permission to appeal and back in January/February out of 36 applications only 11 were granted permission to appeal.
The following is taken from the Supreme Courts guide to proceedings. It is written for people with out legal representatives to help the layperson understand what happens without so much legal jargon. The court procedure is the same even wether you have legal representation or not.
"The test which the Court applies is, however, a strict one. Permission to appeal is only granted for applications that, in the opinion of the Justices, raise an arguable point of law of general public importance which ought to be considered by the Supreme Court at that time, bearing in mind that the matter will already have been the subject of judicial decision and may have already been reviewed on appeal."
So the court by granting the permission to appeal has decided that there is a strong argument on a point of law that is important to the general public.
So what happens now?
The next step is the full official application must be submitted for a hearing date.
The quickest this could happen in an ideal world with everything being fast tracked would be 3 working months. Given that the Supreme Court does not sit in August and September the earliest possible date would be the end of October 2015 for the hearing.
But a related case Bibi (English language requirement) had to wait 10 months after the permission to appeal was granted (April 2014) until their hearing date (February 2015).
So we could possibly be looking at as late as April 2016 for this case to be heard at the Supreme Court. The hearings usually take place over 2 days with the the appellant having the opportunity to state their arguments first. The respondent to the appeal will then make their submissions and then appellant has a right of 'reply' before the Judges consider all the arguments.
Since May 2015 nearly all the Supreme Court hearings can be viewed online, live or on demand at a later time, which is good news for those who cannot travel to the court on the day.
In nearly all cases, the Court will not announce its decision at the end of the hearing. The Justices prepare a written judgment which is sent to the parties after the hearing. The judgment will be sent to the parties in draft first and then the Justices will formally 'hand down' their decision at a further hearing.
As in the case of Bibi the handing down of the judgment could take several months from the actual hearing.
This means we will most probably get a decision just before the 4th anniversary of the introduction of the 9th July 2012 rules.
We just hope we do not have to wait the 800 years the Barons and Bishops had to in order to get a hearing date ;)
In the meantime, again you can review what happened at the Court of Appeal by reading this overview.
