I was hoping somebody could help with the following:
Will it be possible to advise/represent a client who is living outside the UK (in Asia until July 2012) where the case requires important and urgent action? A CW1 has not been completed as the person is not in the UK and is it ok to ask them to complete one whilst abroad? Is there a rule that says that only people in the UK are entitled to publicly funded advice?
I put the question to the LSC (Civil Legal Help query line). The advisor I spoke to said that Legal Help/Aid is available to people outside the UK as long as the matter involves English Law. There was no mention of being resident in particular territories (which is mentioned in the revised proposals).
The revised proposals state that a person is resident if they are able to provide an address within the following territories:UK, EU, British Overseas Territories, the Crown Dependencies, Macao or Hong Kong.
Does anyone know where I can find the guidance to overseas applications or residence rules in the manual?
PART C - CARRYING OUT IMMIGRATION CONTROLLED WORK Applications on behalf of the Client 8.22 A sponsor or family member may sign the Legal Help or CLR form on behalf of an individual not resident in or yet arrived in the European Union. 8.23 A sponsor or family member may sign a Legal Help or CLR form where they have sufficient interest in the application to act as the Client. Where the sponsor or family member signs the Legal Help form as the Client it is that person‟s means that are assessed. 8.24 The Legal Help or CLR form cannot be signed by both a sponsor or family member and the Client to take forward the same Immigration application. However, it is permitted for a sponsor or family member to sign the Legal Help form for initial advice and the Client (appellant) to sign the CLR form for the appeal in relation to the same Matter. 8.25 Where the means of a Client are assessed any resources provided to the Client by a sponsor or family member must be included in the assessment of the Client‟s means in accordance with Regulation 11 of the CLS Financial Regulation 2000 (as amended).
SCC also talks about european community as opposed to uk. ALSO on behalf of client...... 3.12 The assessment of means section and the Client‟s details must be fully completed and the form signed by the Client in your presence, or that of a member of a Consortium to which you belong, before the Controlled Work is commenced, subject to the exceptions set out in Rule B3 of the Funding Code Procedures and Paragraphs 3.25 to 3.32 of this Specification. However: (i) where the form is signed in the course of an interview you may record all reasonable time from the beginning of that interview; and (ii) where you act for a Client under the Housing Possession Court Duty Scheme and subsequently open a Matter Start for that client in relation to the same proceedings, you may include your time spent under the Housing Possession Court Duty Scheme within your claim for the Legal Help Matter Start. 3.13 The completed form must be kept on the file. We may prescribe different forms for different Categories of Law or types of case or Client and for different Levels of Service. We may amend the form or forms from time to time upon giving at least 28 days notice to you. 3.14 Help at Court may be given to a Client who is in receipt of Legal Help without a further application being made. Attendance on a Client’s Behalf Relevant provisions from the Funding Code: B3 Attendance on a Client’s Behalf 3.1 Where a client cannot for good reason attend on a Provider in order to apply for Controlled Work, that client may authorise another person (“the authorised person”) to attend on their behalf. 3.2 An application for Controlled Work may not be accepted from an authorised person on behalf of a client unless that client is, at the time when the authorisation is given, either present in or resides in the European Union. 3.15 “Good reason” for the purposes of the Funding Code provision above will be where the Client requests that the application is made in this way and it is not necessary for the interests of the client or his or her case to attend in person. 3.16 The authorised person must provide you with the information and satisfactory evidence in support, necessary to assess the Client‟s financial eligibility. 3.17 Where Legal Help is to be provided in relation to a will, then the authorised person must supply you with the information necessary to comply with this Section B3 of the Funding Code Procedures. 3.18 No partner, member, associate, shareholder or employee of your organisation (or family member of such partner, member, associate, shareholder or employee) may act as an authorised person for the purposes of Section B3 of the Funding Code Procedures. and following if patient/child etc
also following but needs to be read in conjunction with rest of 'procedures' C8. Clients resident outside the European Union 8.1. This Rule applies where the client resides outside the European Union and cannot be present in England and Wales while his or her application is considered. 8.2. Such applications shall be written in English or in French. 8.3. Except where the client is a member of Her Majesty’s Armed Forces, the application shall be sworn before a justice of the peace, magistrate, British consular official or any other person for the time being authorised by law in the place where the client resides to administer an oath for any judicial or other legal purpose. 8.4. The application shall be accompanied by a statement in writing, signed by a responsible person who has knowledge of the facts, certifying that Section of the application which relates to the client’s financial resources. 8.5. The requirements of this Rule may be waived by the Director where, if in his or her view, compliance with them would cause serious difficulty, inconvenience or delay and the application otherwise satisfies the Procedures.
I was hoping someone could help with the following.
B3 (attendance on a client's behalf) of the Funding Code:
B3 Attendance on a Client’s Behalf Where a client cannot for good reason attend on a Provider in order to apply for Controlled Work, that client may authorise another person (“the authorised person”) to attend on their behalf.
An application for Controlled Work may not be accepted from an authorised person on behalf of a client unless that client is, at the time when the authorisation is given, either present in or resides in the European Union.
If a client is currently living outside the EU (for the next few months) but their domicile is in the UK, does that mean that they reside within the EU and can therefore authorise a person to attend on their behalf(in accordance with the above para from the funding code). Or will they have to be present and living in the EU for them to give such authorisation?
POSTAL APPLICATIONS
In relation to people outside the EU, my understanding is that:
You may not grant LH to a client resident outside the EU if:
1. the client can delay their application until he returns to the EU (without serious disadvantage to case);
2. Someone resident in the EU could apply on their behalf.
3. It would otherwise be unreasonable to accept their application.
If none of the above three apply then Legal Help can be granted TO A PERSON OUTSIDE THE EU and it would have to be by way of postal application. Please can someone clarify.
I don't understand how the above rule (ATTENDING ON BEHALF OF CLIENT)and only being allowed to authorise a person if living in the EU matches with 3.26(b) below which states that a postal application cannot be made by a person who is outside the EU where a person who is resident in the EU can do this on the client's behalf.
How can the client authorise this if they are outside the EU? or does this rule allow flexibility in that if you are outside the EU but your main residence is in the EU, then you are regarded as being within EU territory.
Postal Applications 3.25
Subject to Paragraphs 3.26 to 3.28, an application for Controlled Work may be accepted by post where there is good reason, as defined in Paragraph 3.15 above, to do so.
3.26 Applications by post may not be accepted where the client is resident outside the European Union and:
(a) such residence is purely temporary and the client can without serious disadvantage delay the application until they have returned to the European Union, or
(b) the services could be applied for on the same matter by a person resident in the European Union, or
(c) it is otherwise unreasonable to accept the application.
domicile has legal meaning in uk cf resident (arguable and to be established Levine v IRC)
Usually crops up in Taxation/Inheritence see www.hmrc.gov.uk/manuals/ihtmanual/IHTM13024.htm If domiciled seems to be B3 applies. ____________________________ Re postal app's - If domiciled yes authorisation need only be a phone call to instruct someone(but not you or your organisation etc); however use 8.5 (c8) write to Director and ask him to waive if needed 3.25(c) is of course arguable if you believe merit of postal app' keep your cm briefed if you go down that route.
