Joyce Oji, R (on the application of) v The Director of Legal Aid Casework

LORD JUSTICE LEWIS: INTRODUCTION

1. This is an appeal from a decision of HHJ Bird, (“the judge”), sitting in the High Court, dismissing a claim for judicial review of a decision dated 31 October 2022 which, in turn, upheld a decision of the Director of Legal Aid Casework (“the Director”) of 13 September 2022 effectively refusing to provide legal aid for the making of an application for compensation under the Windrush Compensation Scheme (“the Scheme”). The Scheme was established to make awards of compensation for those who had suffered loss as a result of not being able to demonstrate their lawful immigration status in the United Kingdom.

2. In brief, the appellant, Ms Oji, had contended that the making of an application for compensation involved the determination of a civil right within the meaning of Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). She said that she needed to be granted legal aid to assist her in making that application or there would otherwise be a breach of Article 6(1) of the Convention. She asked the Director to make an exceptional case determination under section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“ the 2012 Act ”) to enable her to obtain legal aid funding.

3. The Director determined that it was not necessary to make an exceptional case determination in order to avoid a breach of a Convention right. She decided that an application for compensation did not fall within Article 6 as it did not involve a determination of any dispute, and, in any event, claims for compensation were not civil rights within the meaning of Article 6. Further, she expressed the view that the provision of legal representation was not required to ensure that there was no breach of Article 6. The appellant requested a review of that decision. The reviewer agreed that the matter did not involve civil rights and noted that there was no determination of any dispute and upheld the Director’s decision.

4. The appellant brought a claim for judicial review of the review decision. In order to succeed in that claim, the appellant would have had to establish each of three things namely, that the process of applying for compensation involved the determination of (1) a dispute (2) in relation to a civil right (3) in circumstances where the provision of legal aid was needed to avoid a breach of Article 6. The judge held that there was no dispute and, therefore, dismissed the claim for judicial review. He also expressed the view that a claim for compensation under the Scheme did not amount to a civil right of the type protected by Article 6. He expressed no view on whether the provision of legal aid would be necessary to avoid a breach of Article 6 of the Convention.

5. The appellant appealed initially on three grounds. The material grounds for present purposes are contained in ground 1, namely that: (1) the judge was wrong to conclude that a claim for compensation under the Scheme was not a civil right; and (2) the judge was wrong to conclude that a dispute was necessary for a matter to fall within Article 6.

6. In her replacement skeleton argument for this hearing, the appellant noted that the judge had concluded that there was no dispute in existence when legal aid was refused and this conclusion is not challenged. In oral argument, it became clear that this meant that the appeal had to be dismissed. If an application for compensation under the Scheme did not involve the determination of a dispute then the matter did not fall within Article 6 and the refusal of legal aid to assist in making the application could not involve any failure to comply with that article.

7. The appellant, however, wished to continue with the appeal on the basis that it was important to determine whether a claim for compensation under the Scheme was a civil right within the meaning of Article 6. It was submitted that that was necessary as the Director would continue to refuse legal aid in respect of claims for compensation even if the circumstances did involve a dispute. I deal below with the extent to which it is appropriate to address this issue.

8. The appellant withdrew ground 2 of her appeal, namely that the failure to provide legal aid was a breach of the right to respect for her private life under Article 8 of the Convention which the respondent could not justify. I say no more about that ground. Ground 3 of the appeal was that the judge erred in finding that the Director had no discretion under section 10(3) (b) of the 2012 Act to make an exceptional case determination enabling legal aid to be granted. There were no written or oral submissions on that issue and it did not appear to be pursued in the present appeal. In any event, I deal with that ground of appeal below. THE LEGAL FRAMEWORK Article 6 of the Convention

9. Article 6(1) of the Convention provides that: “1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

10. Article 6(1) is concerned with the procedural safeguards that an individual enjoys when a dispute about that individual’s civil rights is being determined. It is intended to ensure, for example, that the determination of that dispute will be undertaken by an independent and impartial tribunal. For Article 6(1) to be applicable, there has to be a dispute in existence (the French text of the Convention uses the word “contestation”) which is being resolved (see Le Compte Van Leuven, and De Meyere v Belgium (1981) 4 EHRR 1 at paragraph 46).

11. The approach of the European Court of Human Rights to the applicability of Article 6 is well established in its case law and has been summarised recently in Grzeda v Poland (2022) 54 BHRC 632. The Grand Chamber of the European Court held, as part of its assessment of general principles, that: “257. For art 6(1) in its ‘civil’ limb to be applicable, there must be a dispute over a right which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether that right is protected under the Convention. The dispute must be genuine and serious: it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and finally the result of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring art 6(1) into play…..”.

12. The right must also be a civil right. I deal with that below in the context of compensation schemes like the Scheme in this case. In addition, of course, the applicant must demonstrate that the particular circumstances involve a breach of Article 6, if applicable, i.e. that one of the procedural rights or protections expressly or impliedly guaranteed by Article 6 has not been met. The Relevant Domestic Law

13. The provision of legal aid is, in part, regulated by the 2012 Act . Section 1 imposes a duty on the Lord Chancellor to secure that legal aid is made available in accordance with Part 1 of the 2012 Act . Section 9 provides for the civil legal services (i.e. advice and representation) described in Part 1 of Schedule 1 to the Act to be made available to an individual. Those services do not include advice or representation in connection with the making of a claim for compensation under the Scheme. Section 10 , however, provides for civil legal services other than those described in Part 1 of Schedule 1 to be made available in the circumstances specified in that section. That section applies where the Director has made what is called “an exceptional case determination” in relation to the individual and the services and determines that the individual qualifies for the services (see section 10(2) and (3)).

14. Section 10(3) of the 2012 Act defines an exceptional case determination in the following terms: “(3) For the purposes of subsection (2), an exceptional case determination is a determination – (a) that it is necessary to make the services available to the individual under this Part because failure to do so would be a breach of – (i) the individual’s Convention rights (within the meaning of the Human Rights Act 1998 ) or (ii) any rights of the individual to the provision of legal services that are assimilated enforceable rights, or (b) that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.

15. The meaning of section 10 was considered in detail by this Court in R (Gudanaviciene) v Director of Legal Aid Casework and another (British Red Cross Society intervening) [2014] EWCA Civ 1622 ; [2015] 1 WLR 2247 . Section 10(3) (a) requires the Director to consider if a decision not to make an exceptional case determination, and thereby to refuse legal aid, would result in a breach of an individual’s Convention rights. If so, the Director must make an exceptional case determination. If the Director concludes that he cannot decide whether there would be a breach of a Convention rights, he must then consider whether it is appropriate to make an exceptional case determination under section 10(3) (b) and should have regard to any risk that a failure to make a determination would result in a breach of a Convention right (see paragraph 32 of the judgment). The Scheme

16. The rules of the Scheme provide for the payment of compensation to persons who are eligible and satisfy the criteria for making an award. The power to make payments derives from the common law powers of the Crown, that is the power of the Crown, acting through ministers, to do an act which does not involve an infringement of the rights of others and which is not prohibited by law. The basis for these common law powers is that the Crown is a corporation sole, possessing legal personality, and consequently has the same power, or ability, to do acts that any other legal person has. The payments come from public funds. Section 1 of the Windrush Compensation Scheme (Expenditure) Act 2020 (“ the 2020 Act ”) provides that “there may be paid out of money provided by Parliament expenditure incurred by the Secretary of State or a government department under, or in connection with, the Windrush Compensation Scheme”.

17. In August 2022, the Secretary of State for the Home Department made the Windrush Compensation Scheme Rules (“the Rules”). Part 1 sets out the background to the Scheme in the following terms: “1.1 This compensation scheme (“the Scheme”) is designed to compensate individuals who have suffered loss in connection with being unable to demonstrate their lawful status in the United Kingdom. Those most affected are often referred to as the “Windrush generation”. This name refers to the “Empire Windrush”, one of the first ships that brought workers from Caribbean islands to the United Kingdom in 1948, in response to labour shortages following the Second World War. The Scheme is not limited by reference to those connected to that ship or those with a family connection to the Caribbean. For those most affected, their lawful right to stay in the United Kingdom stems from arriving and settling in the United Kingdom, mainly but not exclusively from Commonwealth countries, before 1 January 1973. In these cases, the right to stay in the United Kingdom derives directly from the Immigration Act 1971 without the need for any documentation. However, the Scheme is open to any eligible person who arrived in the United Kingdom before 1988 from any country who is lawfully in the United Kingdom. In certain cases, individuals based overseas may also be able to claim. The Scheme is also open to close family members of those groups. 1.2 There is no single or consistent picture of the loss suffered by those affected. The Scheme has been designed to address potential losses under a range of categories and to take into account the impact of the losses in each case, as far as possible.”

18. Paragraph 1.4 provides that “Compensation under the Scheme is paid voluntarily”. Paragraph 1.5 provides certain definitions of terms used in the Scheme.

19. Part 2 deals with eligibility. It defines six groups of individuals as persons “who may claim compensation under the Scheme”. They include, at 2.1(d) “a child of a Commonwealth citizen who either” was settled in the United Kingdom before 1 January 1973 or had a right of abode and was ordinarily resident on that date. The appellant falls within that category.

20. Part 3 deals with redress. It provides for an apology to accompany any award of compensation, acknowledging what has happened to the claimant and any role that the Home Office may have played in the impact or loss suffered.

21. The remainder of Part 3 recognises that compensation may include an award in respect of seven specified matters, the details of which are set out in Annexes B to H of the Rules. These are, in brief, awards in respect of (1) certain immigration fees and legal costs – Annex B; (2) detention, deportation, removal or return of an individual – Annex C; (3) loss of access to employment – Annex D; (4) loss of access to child benefit, child tax credit or working tax credit – Annex E; (5) denial of access to services (including housing, free NHS care, education and banking services) – Appendix F; (6) homelessness – Annex G; (7) impact on family life – Annex H; and (8) living costs incurred by a close family member – Annex J.

22. In each case, the relevant Annex sets out the conditions that must be met to qualify for an award of compensation under that Annex and describes the amounts that may be awarded. By way of example, Annex B deals with the award of compensation for fees paid for immigration applications to resolve uncertainty about immigration status and for legal costs incurred in connection with those applications. The amount of the award is the amount of the fees paid and, in relation to legal costs, a contribution which is the lesser of £500 or the actual amount paid. Annex C deals with circumstances where an individual was detained, deported or removed. It sets out the sums that may be awarded in respect of removals. It also contains a scale for calculating the amount of an award in respect of detention which is based upon the period of time for which the individual was detained.

23. Provision is also made for an award, described as discretionary award, in Annex I, where the claimant (or a close family member) can establish that they experienced significant impacts, loss or detriment of a financial nature as a direct consequence of being unable to establish their lawful status.

24. Part 4 of the Rules deals with grounds upon which an award may be reduced or refused. Part 5 is concerned with repayment. Part 6 deals with the process for making a claim and the supporting evidence required to enable the Home Office “to determine the claimant’s entitlement to compensation under the Scheme” (see rule 6.3 of the Rules). Part 7 deals with determinations of claims by the Home Office. Part 8 deals with awards and payments. It provides the date on which an entitlement to an award arises, and makes provision for interim or preliminary payments. Part 9 deals with the conditions on which the payment of an award is made. Part 10 provides that a claimant may “seek a review of a determination”. Rule 10.6 provides that the claimant may submit further information in support of the request. The rules provide for what is called a Tier 1 review by a Home Office official, referred to as a senior reviewer, who was not party to the original determination. A claimant who is dissatisfied with a review decision may request what is described as a Tier 2 review to be carried out by an independent person. THIS CASE The Appellant

25. The appellant was born in Nigeria on 20 January 1985. She arrived in the United Kingdom, aged 3, together with her brother, in October 1988 to join her parents. Her parents had come to the United Kingdom in about 1964 and acquired settled status before 1 January 1973 by virtue of provisions of the Immigration Act 1971 . The appellant was not able to prove her lawful status to be in the United Kingdom for a period of time. She wished to apply for an award of compensation under the Scheme. The Application for An Exceptional Case Determination

26. On about 20 June 2022, the appellant applied to the Director for an exceptional case determination with a view to obtaining funding for legal representation to help her make a claim for compensation under the Scheme.

27. By letter dated 13 September 2022, the application was refused. The letter noted that the appellant had asked the Director to “consider funding in the form of Legal Help to enable” the appellant “to apply for compensation” under the Scheme. The letter summarised the provisions of section 10(3) of the 2012 Act and the two situations in which an exceptional case determination will be made (i.e. failure to do so would amount to a breach of a Convention right or it was appropriate to make funding available having regard to any risk that failure to do so would be such a breach). The letter said this, so far as material to this appeal: “I am of the view that Article 6 is not engaged. This is because the claim for compensation, in my view, does not involve the determination of your client’s Article 6 rights. The funding application is for legal help to make an application to claim compensation from a voluntary scheme (which is not based on legislation, so far as I am aware) which will require an evaluative judgment by each determining officer to conclude whether the scheme rules are met. At this stage of making an application, there is no contestation. ….. It is my view that payments under the [Scheme] fall within the line of authorities arising from the Italian interns case and subsequent line of authority, where the payments are “ one-off payments in respect of particular historic events made outside of the state’s regular social security legislation ” – see in particular paragraph 66 of JT v FTT ….. Because of what I have said about Article 6 not being engaged, there is no necessity for me to go on to consider whether withholding of legal aid would mean the application will be unable to present his case effectively, or it would lead to an obvious unfairness in the proceedings. However, for completeness I make the following observations. I accept that obtaining compensation from the [Scheme] is of great importance to your client. I am of the view that your client does not need legal advice to be involved in the relevant processes. Your client has access to a free help service from “We are Digital” to help her complete the compensation form and gather the requisite evidence. She also speaks English. The application is based on facts and she will not be required to make reference to case law. Due to the nature of the compensation claim, the help team will be used to dealing with people who have suffered because of the Windrush scandal. Conclusion Your client’s application for Exceptional Case Funding is refused as the application does not satisfy the Exceptional Case Funding criteria. In reaching this conclusion, I rely on the above-mentioned matters, any one of which would be sufficient to justify this conclusion. The application is therefore refused.”

28. The appellant applied for a review of that decision. By letter dated 31 October 2022, the request for a review was dismissed. This is the decision under challenge in the claim for judicial review. The letter said that the “first question … is whether this application involves the determination of a civil right or obligation”. The decision analyses the decision of JT v First-tier Tribunal [2018] EWCA Civ 1735 , [2019] 1 WLR 1313 where the Court of Appeal analysed the nature of payments for compensation for criminal injuries, and noted (by comparison with the scheme at issue in JT) that: “The Windrush Compensation Scheme is not brought in by any legislation but as is clear in paragraph 1.4 of the scheme, compensation is paid voluntarily.” The court then considered Associazione Nazionale Reduci Dall Prigionia dall’ Internamento e dalla Guerra di Liberazione v Germany (2008) 46 EHRR SE11 (the Italian Interns case). At paragraph 62 it said that the compensation scheme which was the subject of that case “…could not be regarded as amounting to entitlements protected by [Article 1 of the First Protocol] in circumstances where payments made under the scheme were in the nature of extraordinary, one-off, ex gratia payments which Germany had chosen to make outside the framework of its social security legislation,” It went on to underscore this reasoning from the line of authorities that followed. The instant matter is markedly different to the Criminal Injuries Compensation scheme where, at paragraph 66 of JT the court continued “…UK criminal injuries compensation scheme is not a special scheme set up to provide one-off payments of reparation for a particular historic event” . The Windrush Compensation Scheme is such a special scheme and therefore aligns with the compensation scheme considered in the Italian Interns case. A proprietary interest falling within the ambit of A1P1 cannot therefore be established given the nature of the scheme regardless of the fact that payment has to be made if the applicant is eligible which is a subsequent and separation question. Accordingly, this case does not involve the determination of a civil right or obligation and so your client does not qualify for ECF. It is therefore unnecessary for me to go on to consider whether withholding of legal aid would mean that your client is unable to present her case effectively or would lead to an obvious unfairness. That said, it is right that I remind you that Article 6 can only be engaged at the point where there is a determination of a dispute or “contestation”. It cannot arise prior to that and as you are seeking help to make the application does not arise in this case.” The Application for Compensation under the Scheme

29. On 15 December 2022, the appellant applied for an award of compensation under the Scheme. She was assisted in completing her application by lawyers from the Southwark Law Centre who acted pro bono. She sought compensation comprising awards under Annex D: Loss of access to employment and Annex H: Impact on Life. The Claim for Judicial Review

30. On 31 January 2023, the appellant filed a claim for judicial review of the decision of 31 October 2022, that is, the decision of the reviewer. That decision was described in the statement of facts and grounds accompanying the claim form as a decision maintaining the underlying decision of 13 September 2022. At that stage, the grounds of claim as originally drafted alleged indirect discrimination contrary to section 19 of the Equality Act 2010 or Article 14, read with Article 1 of the First Protocol to the Convention, and Article 8. The appellant was not, at that stage, alleging that the refusal to make an exceptional case determination to enable funding to be provided for legal services to assist in the making of the application for compensation involved a breach of Article 6. Permission to apply for judicial review was granted on 25 August 2023. The Consideration of the Claim for Compensation

31. By letter dated 29 March 2023 the appellant was informed by the Home Office that she was eligible to apply for compensation under the Scheme and told that the Home Office was considering whether she was entitled to compensation. The letter further went on to say that an initial assessment indicated that, on the basis of the information provided so far, the Home Office had not been able to determine, on the balance of probabilities, that the appellant had suffered detrimental impacts because she had been unable to demonstrate her lawful status in the United Kingdom, but that the matter was being passed to a case worker to reach a final decision. The Amendment to the Judicial Review Claim Form

32. By an application issued on 5 October 2023, the appellant applied for permission to amend her claim for judicial review to include one additional ground of claim, namely that the respondent had misdirected itself in its decision as to the scope of Article 6. Permission was granted on 30 October 2023. The Determination of the Claim for Compensation under the Scheme

33. By letter dated 15 December 2023, the Home Office informed the appellant that, taking account of the evidence provided and the information available, the appellant would not be offered any compensation. Solicitors acting for the appellant applied for a review of the determination by letter dated 10 January 2024.

34. By letter dated 27 September 2024, the Home Office confirmed that they had reviewed the decision. First, it dealt with the claim for an award under Annex D. It decided that it was satisfied that the appellant: “… met the criteria for a General Award under paragraph D(9)(iv) of the [Scheme] rules. This is because you were not in employment in two years prior to when you were refused employment by Jardine Motors and Artisan People however you have provided documentation which indicates that you were actively trying to seek employment and you were unable to progress due to an inability to demonstrate lawful status. Your period of loss starts on the date you were first unable to access employment. This has been accepted as 25 August 2017 when you were required to provide your Right to Work documentation. Your refusal by Artisan People has been included in this calculation and have determined you could not obtain employment with them on 01 December 2017. Your period of loss ends three months from the date when you received a decision confirming your lawful status when you were granted No Time Limit (NTL) on 06 April 2019. Therefore, your period of loss starts from 25 August 2017 and ends on 06 July 2019. This is a period of 23 months. The General Award Tariff is set at £1,147.00 per month. It is noted that you were able to work with Harrods during the period of loss and you earned a total of £976.60. Therefore, we have deducted this earning from the overall award. ….. Therefore Tier 1 overturns the original decision and would like to offer you an award of £25,404.00”.

35. Secondly, the Home Office reconsidered the refusal of an award under Annex H. The letter noted that the review “must be satisfied on the balance of probabilities you experienced detrimental impacts as a direct consequence of being unable to demonstrate your lawful status in the UK”. In light of the finding that the appellant had been denied employment with Jardine Motors and Artisan People because of her inability to demonstrate her lawful status, it accepted that this would have impacted on her life and caused feelings of frustration, inconvenience and anxiety. It noted that awards were based on a tariff ranging from level 1 to level 5 and, based on the information available, the Home Office was able to offer a level 3 award, that is an amount of £40,000 under Annex H. The total compensation offered to the appellant was therefore £65,404.40. The appellant accepted that offer. The Supplementary Issue

36. Meanwhile, after the original refusal of compensation in December 2023 but before the review decision offering compensation in September 2024, the appellant applied by a notice dated 18 January 2024 for, amongst other things, what was described as permission to “raise a supplementary issue in light of the WCS [Windrush Compensation Scheme] decision of 15 December 2023”. The attached note indicated that the appellant’s solicitors had written to the Director asking if she would now accept, in the light of the request for a review of the refusal of compensation, that there was a dispute. The note indicates that the respondent had declined to answer that question and had implied that it would have to be addressed through a new application for legal aid.

37. The appellant did not make an application for an exceptional case determination to enable legal representation to be provided to assist with her application for a review of the refusal of compensation. Instead, she sought to raise the question of whether the Tier 1 review process involved a dispute as a supplementary issue within the existing judicial review proceedings.

38. In my judgement, that method of proceeding was misconceived. As CPR 54.1(a) makes clear, a claim for judicial review is a claim to review the lawfulness of a decision, action or failure to act. The Director had not made a decision on whether to make an exceptional case determination under 10(3) of the 2012 Act in respect of the review process to be carried out by the Home Office. Indeed, the appellant had not made an application for an exceptional case determination in relation to that review process. The Director could not be found to have acted unlawfully, or to have reached an unlawful decision, when she was never asked to make, and never made, such a decision. If the appellant had wanted to bring a claim for judicial review in relation to the review process, the appropriate procedure was to apply for an exceptional case determination in relation to the review process and, if that was refused, to seek permission to amend the existing claim for judicial review (or to bring a fresh claim) seeking to challenge the lawfulness of such a decision. As it happens, it appears that the judge did not deal with the application that had been made. There is no order before us granting (or for that matter refusing) permission to raise a supplementary issue. The Judgment

39. The judge reviewed the circumstances in which Article 6 was applicable at paragraph 43 of his judgment, noting at paragraph 43(a) that there had to be a dispute over a right. At paragraph 44, under the heading “The Need for a Dispute” he concluded (referring to the Scheme in this and subsequent paragraphs as WCS) that: “44. At the time, the decision to refuse [exceptional case funding] was made there was no dispute between the Claimant and the WCS”.

40. The judge considered, and dismissed, an argument that Article 6 did not require that there be a dispute. There is no appeal against that conclusion.

41. At paragraph 48, under the heading “ Is a civil right at stake?” , the judge said this: “48. The next issue to consider (assuming, contrary to the conclusion I have reached, there is a dispute) is whether a claim for compensation under the WCS gives rise to a civil right of the type protected by Art.6. It is accepted that a "right" that is dependent on evaluative judgments by the provider (as to qualification or amount) does not engage Art.6.”

42. He considered the decision of the European Court in Woś v Poland (2007) EHRR 28, dealing with rights to compensation under a scheme to provide financial assistance to the victims of Nazi persecution. He said that: “60. In my judgment, Woś is distinguishable from the present case. The decision rests on the Court's willingness to treat payments from the Foundation as welfare or benefit payments. An important part of that conclusion was the fact that the Foundation was a creature of statute, and that the compensation was about "subsistence". In my judgment the same cannot be said of WCS payments. WCS is (importantly) not a statutory scheme. Its payments are not related to "subsistence", and it is difficult to pinpoint any similarity between WCS and welfare benefits. Further, it is not clear that the Claimant has a right to compensation. As things stand, she does not.

61. Further, I accept Mr Birdling's submission that, in light of the present state of the law, Woś is an outlier. It represents an expansion of the types of claim covered by Art.6. There is nothing in Strasbourg or United Kingdom domestic jurisprudence which suggests that the extension is anything other than limited and fact-based. I do not accept that the decision is necessarily wrong. One of the reasons the case might be seen as an outlier is that it may permit the engagement of Art.6 even if the rights involved are not “private” rights. In his concurring opinion on admissibility in Salesi (see above at paragraph 49), Mr Sperduti notes that the “gradual shift” to the engagement of Art.6 in benefits cases arises “ even when the dispute concerns a right governed for the most part by the rules of public law .”

43. The judge then considered the decision of the European Court in Associazione Nazionale Reduci Dalja Prigionia Doll’Internamento e Dalla Guerra Di Liberazione v Germany (2008) EHRR SE18 (“the Italian Interns Case”) which also dealt with a compensation scheme related to events arising out of the Second World War. He said that: “69. In my judgment the WCS is very close to the scheme in the Italian Interns' case. It is a special scheme set up to provide one-off payments as reparation for a particular historic wrong, namely the treatment of those who came to the United Kingdom to assist it in its time of need but who subsequently suffered (as the Home Secretary put it in 2020) “terrible injustices spurred by institutional failings”. If anything, the WCS is a more obvious example of a scheme which does not give rise to a civil right in the sense understood in Art.6; it has no statutory basis at all and the only means of enforcing any award would be through public law proceedings as was accepted during the course of argument. In my view these points taken together provide a firm basis for the conclusion that the rights created by the WCS are not protected by Art.6.”

44. The judge set out his conclusions on Article 6 at paragraphs 70 and 71 in the following terms: “70. Even if there was a relevant dispute, I am satisfied that Art.6 does not apply. The WCS is non statutory, it is not concerned with the relief of ill health or poverty (a qualifying claimant may receive compensation even if well-off and in good health) and is designed to offer one-off compensation for specific and proved losses suffered as a result of historic wrongs perpetrated by the state. It therefore has little in common with Woś (where there was a right to compensation once qualifying criteria were met and the scheme was rooted in statute), Salesi (where the payments were designed to assist the poor and unwell and the scheme was statutory) and JT (where the scheme was not designed to compensate for historical wrongs and was statutory). These factors point clearly away from the application of Art.6.

71. If the Ali comparison must be made, then in my view the same outcome is arrived at. To award compensation under the WCS there needs to be an assessment of evidence. That process is not hard-edged.”

45. The judge dismissed the claim for judicial review. THE APPEAL

46. The appeal against the decision of the judge must be dismissed. Article 6 applies to, and provides certain procedural safeguards in, the determination of a dispute over the existence or scope of a civil right, or something that it arguably recognised as a right. The process of applying to the Home Office for an award of compensation did not, at that stage, involve the determination of any dispute in the sense that that term is used in the case law of the European Court. That was accepted by the appellant in her skeleton argument and oral submissions. The Director was correct, therefore, to conclude that Article 6 did not apply to that process and to refuse to make an exceptional case determination. The reviewer was correct to uphold that earlier decision and to dismiss the request for review. More significantly, for present purposes, the judge was correct to dismiss the claim for judicial review as there was, at the material time, no dispute to be resolved and Article 6 was not applicable.

47. The difficulty lies, however, in that the judge, understandably, undertook a detailed review of the case law on the question of what constitutes a civil right for the purposes of Article 6 and expressed views, albeit obiter, on that issue. The question is whether this Court should consider the judge’s analysis or leave the matter to be resolved in a case in which the issue arises.

48. I reject the submission of Mr Buttler KC, who appeared with Ms Brown and Mr Schymyck, for the appellant that there was a decision that rights under the Scheme were not civil rights, and that decision should be quashed and the matter remitted to the Director. First, the decision was not to make an exceptional case determination as it was not necessary to do so to avoid a breach of a Convention right. That decision was upheld by the reviewer. Those two decisions were correct in law. It may be that part of the reasoning underlying the decisions was not correct but the decisions themselves were correct and lawful. More significantly, the judge was correct to dismiss the claim for judicial review. Any appeal would be against the order dismissing the claim, not against parts of the judge’s reasoning. Secondly, there is, in truth, nothing to remit to the Director. The appellant has accepted the offer of an award of compensation under the Scheme and that matter has now been concluded so far as she is concerned. The appellant is not seeking to obtain legal representation to assist her in making an application. The matter is academic.

49. The real issue is whether it is appropriate now for this Court to express views on the meaning of a civil right, in the context of the Scheme. Ultimately, I do consider it appropriate to review the reasoning of the judge on this issue. It is an important point that is capable of arising in relation to this Scheme, and quite possibly, in the context of other compensation schemes. The reasoning of the judge is the only considered analysis in domestic law of whether a claim for compensation under schemes such as the present Scheme is capable of being a civil right for the purposes of Article 6. It is likely to be followed by decision-makers and, indeed, by other first instance judges. If that reasoning is, in fact, incorrect, it is appropriate for this Court to express its views, albeit I recognise that those views will be obiter and not binding in relation to this Scheme, or to other compensation schemes (where the nature of such a scheme may also be different).

50. Before turning to that issue, I would make one other preliminary observation. Mr Buttler submitted that it was appropriate to consider the rights derived from each individual Annex to the Scheme separately. Thus, if the right to an award under Annex D (loss of access to employment) was a civil right, he submitted that that was sufficient for that element of Article 6 to be satisfied, irrespective of whether or not awards under other annexes, such as Annex H (impact on life) were not capable of giving rise to civil rights for the purpose of Article 6.

51. I would reject that submission. The Scheme provides for the payment of compensation to individuals who have suffered loss in connection with their being unable to demonstrate their lawful status in the United Kingdom (see part 1 of the Scheme). There are six groups of individuals who are eligible to apply for compensation (see part 2 of the Scheme). The different annexes are intended to represent potential losses under a range of categories (see paragraph 1.2 of the Scheme). In my judgment, therefore, the nature of the rights conferred by the Scheme, assessed in its entirety, would need be considered to determine whether or not rights to compensation derived from the Scheme are civil rights for the purposes of Article 6. It would not be correct, and indeed would be artificial, to consider the individual annexes in isolation. THE QUESTION OF CIVIL RIGHT

52. Mr Buttler submitted that an arguable right to a one-off pecuniary payment under a compensation scheme relating to historic injustice was capable of being a civil right. The right to payment was based on justiciable factual or legal issues. The sum payable flowed from the application of the scheme rules, not the exercise of discretion by the decision-maker. The Scheme required the decision-maker to ask specific factual questions to which there was a right or wrong answer. In the present case, for example, the decision-maker had to ask under Annex D if, on the balance of probability, the appellant was unable to progress employment applications because of the want of proof of her immigration status. If the answer was in the affirmative, then the amount of compensation payable was calculated arithmetically according to the formula set out in the Scheme. There was no evaluative judgment, and no element of discretion, involved. The entitlement to an award flowed from the specific rules of the Scheme. The same was true of awards under Annex H. He submitted that the entitlement was enforceable as a matter public law. Although the Scheme was adopted voluntarily by the respondent, once it had been adopted, applicants were entitled to have their claims dealt with in accordance with the rules of the Scheme and could enforce those rules. He submitted that that was consistent with the approach of the European Court in social security cases, where Article 6 would be applicable to disputes about entitlement to an individual economic right flowing from specific rules, relying on the decision in Schuler-Zgraggen v Switzerland (1993) 16 EHRR 405 , and Menitto v Italy (2002) 34 EHRR 48 .

53. Mr Buttler submitted that that position was in accordance with the decision of the European Court in Woś . That case involved a dispute about the application of the rules governing calculation and, in particular, the claim that the amount of the compensation payable had been undercalculated. That decision established that there was no obligation under the Convention to establish any scheme to provide compensation for past wrongs. Furthermore, if a scheme were established, there could be no challenge to the eligibility criteria that the state adopted. However, where a scheme had been established, and where the issue concerned a dispute about the application of the rules of the scheme, then the procedural guarantees conferred by Article 6 may be applicable as that may involve a dispute about a civil right. Rights derived from the Scheme were, submitted Mr Buttler, similar to the rights in issue in Woś . Mr Buttler referred to a number of cases which, he submitted, applied the approach in Woś .

54. Mr Buttler sought to distinguish the decision of the European Court in the Italian Interns case. There, the particular claimants did not have a right to compensation under the Scheme and, consequently, Article 6 did not apply. Quite separately, the European Court held that a one-off payment of compensation for events arising out of the second World War, albeit akin to a non-contributory social security benefit funded by general taxation, did not fall within the scope of Article 14 of the Convention, read with Article 1 of the First Protocol. Mr Buttler submitted that the same analysis applied to the decision of the Court of Appeal in JT v First-tier Tribunal [2016] EWCA Civ 1735 ; [2019] 1 WLR 1313 .

55. Sir James Eadie KC, with Mr Birdling and Ms Sahore, for the respondent, submitted that it was important to consider the nature of the scheme in question, and how that scheme would be characterised as a matter of domestic law. In the present case, the Scheme did not have the characteristics of a civil right. It was an ex gratia scheme, where money was paid out of the bounty of the Crown, and was not a statutory scheme. Further, the Scheme provided for a one-off payment for an historic wrong, and was not part of a scheme of social entitlement, a matter regarded as significant by the Court of Appeal in JT , as appeared from paragraphs 54 to 58 and 62 of the judgment of Leggatt LJ, with whose judgment the other members of the Court agreed. Discussion

56. The case law of the European Court has evolved over time. Often, the case law proceeds by contrasting particular circumstances, or factual situations, which do give rise to a civil right as compared with those that do not. Furthermore, the issue that arises in one particular area (such as whether claims under a compensation scheme amount to a civil right for the purposes of Article 6) are often considered in the context of other, earlier developments, such as the decision that Article 6 applied to social security schemes. It is, therefore, not always easy to identify more generally the characteristics of a civil right within the meaning of Article 6 of the Convention. Against that background, it is helpful to consider first the case law dealing with whether claims under a compensation scheme do give rise, or arguably give rise, to civil rights, within the meaning of Article 6. By a compensation scheme, I mean a scheme adopted to provide some measure of financial redress for events suffered by an individual.

57. One relevant feature in this context is the extent to which an individual is entitled to a specific payment of money if he meets conditions set out in prescriptive, and precisely defined, rules. Disputes over such claims are more likely to be analysed as involving the determination of a dispute about a civil right within the meaning of Article 6. In that regard, the decision in Woś is instructive.

58. Woś concerned a compensation scheme for persons who had suffered persecution under the Nazi regime during the Second World War. The claimant, Mr Woś, was subjected to forced labour on the territory of occupied Poland between February 1941 and 26 January 1945. In February 1944, he reached the age of 16. Under the compensation scheme that had been established, he was awarded a first payment in 1994 for the forced labour that he had undertaken from February 1941 until January 1945. In 1999, the relevant management board adopted a resolution providing that claimants were only eligible for payments if they had been deported or were under 16 years of age at the time when they carried out forced labour. In the light of that, the claimant received a further supplementary payment in 2000 for the forced labour undertaken between February 1941 and 1944 (when the claimant was under the age of 16) but did not make a payment in respect of the period from February 1944 to January 1945 (as the claimant was at that stage 16, and had not been deported from his native Poland). The dispute, therefore, centred on the eligibility of the clamant for a supplementary payment for the period March 1944 to January 1945.

59. The arrangements for the compensation scheme came about as follows. In 1991, the German and Polish governments agreed that Germany would contribute a sum of 500 million Deutschmarks for the benefit of a Foundation which would be established to provide financial assistance to victims of Nazi persecution who had been particularly wronged. The Foundation was to identify the necessary criteria for the grant of compensation payments. A Polish statute, the Foundations Act 1984 enabled individuals and legal persons to establish foundations to carry out socially and economically useful goals. The relevant minister in the Polish Government established the Foundation. A statute governing the regulation of the Foundation was drafted and that was registered by the Warsaw District Court. The Foundation was able to amend the statute. Article 6 of the statute provided that the Foundation’s primary aim was to provide financial assistance to those victims of Nazi persecution whose health had been damaged and who were in a difficult financial situation as a result of that persecution. The Foundation had a supervisory board comprised of 21 members, and a management board comprised of nine members, appointed by the founder (that is, the relevant government minister). The Foundation (acting through a Verification Committee) assessed requests for financial assistance on the basis of the statue and the regulations drawn up by the management board and adopted by the supervisory board.

60. Mr Woś sought to challenge the refusal of the supplementary payment for the period from March 1944 to January 1945 in the Polish courts. The Polish Supreme Court held that the decisions of the Verification Committee did not amount to an administrative decision and could be not challenged before the administrative courts. The reason for that conclusion was that the functions of the Foundation had not been delegated to it by statute and so decisions reached in the exercise of such functions could not be regarded as administrative decisions under Polish law. The Supreme Court also observed that an entitlement to receive a benefit from the Foundation could not be raised before the civil courts in Poland. Mr Woś claimed that there had been a breach of Article 6 of the Convention as he was entitled to have his claim for compensation determined by an independent and impartial tribunal.

61. The European Court first held that a decision as to whether to establish a compensation scheme, and the criteria for the award of such compensation would not be matters for assessment under the Convention. Conversely, if a compensation scheme were adopted, issues of compliance with the Convention might arise. That appears from paragraphs 72 to 73 of the decision (references omitted) where the European Court said: “72. As regards general principles, the Court recalls that it has already found in the admissibility decision that there is no general obligation under the Convention for states to compensate wrongs inflicted in the past under the general cover of state authority. However, if such a compensation scheme were to be established, the Court observed that substantive regulations which determined the eligibility criteria for any compensation would in principle fall outside the Court's jurisdiction, unless the relevant criteria were manifestly arbitrary or blatantly inconsistent with the fundamental principles of the Convention. On the other hand, the Court noted that it could not be excluded that some procedural issues—related to the application of those eligibility criteria to the facts of individual cases—could arise. In other words, once a compensation scheme is put in place by a Government or with a Government's consent, and regardless of the nature of the respective benefits, issues of compliance with Art.6(1) or Art.1 of Protocol No.1 may arise. On the other hand, it must be underlined that, in principle, no challenge to eligibility criteria as such is allowed.

73. The Court affirms the above considerations. It also observes that in respect of the first compensation scheme general eligibility criteria were predetermined by the 1991 Agreement. However, the said Agreement stipulated that the Foundation enjoyed a margin of discretion in respect of drawing up more specific conditions and the criteria to be satisfied for awarding compensation payments. The Foundation exercised the same margin of discretion each and every time it applied the eligibility criteria to the facts of individual cases. In this context, the Court emphasises that in the area falling within the Foundation's margin of discretion, its decisions in individual cases bear upon the claimants' rights. As a matter of principle, the Court considers that in cases such as the present one, where an issue related to assessment of the facts arises, the applicability of Art.6(1) would extend to all similar cases in which there appear to be reasonable grounds to believe that the Foundation's assessment of facts was questionable and thus had a direct bearing on the applicant's eligibility for compensation payment.”

62. Secondly, the European Court considered whether a dispute over a right existed. In that regard, the European Court noted that the applicant’s first claim for compensation was granted for the entirety of the period of forced labour (February 1941 to January 1945) and without any requirement that the applicant establish that he had been deported in respect of periods of forced labour occurring after he reached the age of 16. It noted that the applicant only received a supplementary compensation payment for the period February 1941 to February 1944. The European Court concluded at paragraph 74 that a dispute did exist, saying that: “Having regard to the foregoing, the Court considered that a dispute over the applicant's entitlement to compensation had arisen in respect of the right to receive compensation for the overall period of his forced labour, given that the applicant considered that the deportation requirement was not a relevant factor in the assessment of his compensation claim. In the Court's view, that dispute was genuine and of a serious nature. The outcome of the relevant proceedings before the Foundation was decisive since it concerned the scope of the applicant's right to obtain compensation in respect of the overall period of his forced labour.”

63. Thirdly, the European Court considered whether there was at least arguably a right under domestic law to compensation. It said at paragraph 75 (references omitted) that: “75. With regard to the issue of whether the right to compensation from the Foundation on account of Nazi persecution was recognised under domestic law, at least on arguable grounds, the Court considered in the admissibility decision that the relevant Foundation's regulations defined the conditions and procedures with which a claimant had to comply before compensation payment could be awarded by the Foundation. The Court held that those regulations, regardless of their characterisation under domestic law, could be considered to create a right for a victim of Nazi persecution to claim compensation payment from the Foundation. Accordingly, the Court found that if a claimant complied with the eligibility conditions stipulated in those regulations he or she had a right to be awarded compensation payment by the Foundation. Thus, in the Court's view, it could not be said that the relevant Foundation's regulations gave rise to an ex gratia claim. Finally, the Court considered that the applicant could claim, at least on arguable grounds, the right to receive compensation payment from the Foundation in respect of the overall period of his forced labour. This was so especially since he had already received one instalment of such payment by virtue of the decision of February 2, 1994, so that he could have been led to believe that he did indeed have such a right.”

64. Next, the European Court considered whether that disputed right was civil in character, noting the arguments of the Polish government that the right was not based on civil law concepts but was an humanitarian payment. It concluded at paragraph 76 (references omitted) that: “76. With regard to the civil character of the disputed right, the Court observed in its admissibility decision that it was not persuaded by the Government's arguments that the compensation claims at issue were not based on classic concepts of civil law liability but that they were of a humanitarian nature. Having regard to the autonomous nature of the concept “civil rights and obligations”, the Court did not find conclusive the findings of the domestic courts to the effect that compensation claims asserted against the Foundation did not come within the scope of civil law. Furthermore, the Court considered that there were similarities between the entitlement to welfare allowance which falls under the scope of “civil rights and obligations” and the entitlement to receive compensation payment from the Foundation, regard being had in particular to the eligibility criteria of a claimant's difficult financial standing and severe damage to his or her health as a result of Nazi persecution. Finally, the Court observed that, in the present case, the applicant was not affected in his relations with the Foundation, acting in the exercise of its discretionary powers. Rather, the applicant suffered an interference with his means of subsistence and was claiming an individual, economic right flowing from specific rules laid down in the Foundation's Statute and its byelaws. 30 Thus, the Court was of the view that the right to claim compensation on account of Nazi persecution from the Polish-German Reconciliation Foundation could be considered “civil” for the purposes of Art.6(1) of the Convention. In conclusion, the Court found that the right to compensation payment asserted by the applicant under the first compensation scheme was a “civil right” within the meaning of Art.6(1), which was thus held to be applicable.”

65. The European Court therefore concluded that Article 6(1) of the Convention did apply to the proceedings. It concluded that there had been a failure to comply with the requirements of Article 6 as both the ordinary civil courts and the administrative courts in Poland had held that they had no jurisdiction to hear his claim. It concluded at paragraph 106 (references omitted) that: “106….. Consequently, the applicant had no possibility to have the Foundation's decisions reviewed by a “tribunal” within the meaning of Art.6(1) of the Convention. In this context, the Court emphasises that it would not be consistent with the rule of law in a democratic society, or with the basic principle underlying Art.6(1) —namely that civil claims must be capable of being submitted to a judge for adjudication—if a state could, without restraint or control by the Convention enforcement bodies, remove from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on large groups or categories of persons. The Court also notes that the domestic courts' interpretation appeared not to give enough effect to the right to a fair hearing of one's case, enshrined in Art.45 of the Constitution.”

66. There are a number of features of this decision which should be borne in mind. First, in terms of whether there was an arguable right, the European Court considered that “if a claimant complied with the eligibility conditions stipulated in the regulations, he or she had a right to be awarded compensation payment by the Foundation” (paragraph 75). That could not be seen as an ex gratia payment. Secondly, in terms of whether the disputed right was civil, a key factor was that the applicant “was claiming an individual, economic right flowing from specific rules laid down in the Foundation’s statute and its byelaws” (paragraph 76).

67. The suggestion is that the decision in Woś is inconsistent with the decision in the Italian Interns case and that the latter case, not the decision in Woś , represents the current state of the case law. On analysis, however, the Italian Interns case is not inconsistent with Woś.

68. In the Italian Interns case, the applicants had been members of the Italian armed forces during the Second World War. In September 1943, the German armed forces captured Italian soldiers and offered them a choice of either joining the German armed forces or becoming prisoners of war. The latter were detained in labour camps and used as labourers by German industries. In 1961, Germany and Italy concluded an agreement pursuant to which Germany paid a lump sum to the Italian authorities which then awarded compensation to certain victims of Nazi persecution, i.e. those who had been held in a concentration camp and whose health had suffered. The existing Italian legislation did not provide for the payment of compensation to those who were used as forced labour. A further treaty was entered into by Germany and other states. Pursuant to that treaty, Germany enacted legislation establishing a Foundation which was endowed with money provided by the German government. The law governing the Foundation provided for compensation for those who were detained in a concentration camp and who were subject to forced labour. Those who were not detained in a concentration camp, ghetto or other place of confinement (even if subjected to forced labour) were not eligible for compensation. Further, having been a prisoner of war did not of itself entitle a person to the payment of compensation.

69. The applicants, Mr Ferrini, and a person known as M, were civilians who had been subjected to forced labour. They did not qualify for the payment of compensation as benefits were only payable if they were subjected to forced labour in a concentration camp, a ghetto or a place of confinement. They had not been detained in one of those places.

70. The applicants brought a number of claims under the Convention. They claimed that the failure to recognise that they had been subjected to forced labour amounted to a violation of Articles 4 and 5 of the Convention. They also complained of a violation of Article 1 of the First Protocol to the Convention. They also contended that the absence of a right of judicial review of the decision that they were not eligible for compensation meant that they did not have a right to a determination of their civil rights by an independent and impartial tribunal as required by Article 6 of the Convention. They also argued that they were subject to unlawful discrimination contrary to Article 14, read with Article 1 of the First Protocol, of the Convention as compared with foreigners and former Italian military internees.

71. The reasoning of the European Court has to be considered in the context of each of the alleged violations. In relation to Article 6, the European Court held that Article 6(1) was not applicable as the applicants did not have any rights, nor any arguable rights, to compensation under the relevant law because they were specifically excluded from the scope of those entitled to claim compensation. As the European Court said at paragraphs 83 to 86, in relation to Article 6: “83. As outlined above, neither international public law nor domestic law recognised claims for compensation for forced labour at the time the Foundation Law entered into force. The only existing legal provisions regarding claims for forced labour were established by the Foundation Law. Yet under those provisions the applicants were excluded from benefits, because they were either expressly excluded as a group or did not meet the requirements for benefits.

84. The present case is therefore clearly distinguishable from the case of Woś in which the Court held that a compensation scheme under the Polish-German Reconciliation Foundation for former forced labourers, which is distinct from the system as set up by the Foundation Law, fell within the ambit of Art.6 of the Convention. In that case the Court found that the applicant met the requirements and therefore enjoyed, at least on arguable grounds, a right of compensation (see Woś v Poland (2007) 45 E.H.R.R. 28 , subsequently confirmed in the Court's judgment of June 8, 2006).

85. As the applicants were clearly excluded from benefits under the Foundation Law and compensation for forced labour was only provided recently, namely solely by the Foundation Law for the first time in the history of the Federal Republic of Germany, the Court considers that the applicants could not claim to have had a right of compensation, even on arguable grounds.

86. It follows that Art.6 s.1 of the Convention does not apply to the facts of the present case. This part of the application is hence incompatible ratione materiae with the provisions of the Convention and the Protocols thereto within the meaning of Art.35 s.3 of the Convention.”

72. In other words, comparing the case of Woś with the Italian Interns case, Mr Woś did have an arguable right to payment – he had received a first payment of compensation for the entire period February 1941 to January 1945 but the supplementary payment covered only the period February 1941 to February 1944. In those circumstances, there was a genuine dispute about whether he had a claim for a supplementary payment for the period from February 1944 to January 1945. The determination of that dispute involved the determination of a claim to an arguable civil right. In the Italian Interns case, however, the applicants were expressly excluded from eligibility for compensation payments and it could not be said that they had even an arguable right under the compensation scheme to payment. Consequently, Article 6 was not applicable.

73. In relation to the claim for violation of Article 1 of the First Protocol, that article applies only to decisions concerning “possessions” within the meaning of the provision. “Possessions” could either be existing possessions or assets. That later category included “claims in respect of which the applicant can argue that he or she has at least a “legitimate expectation” of obtaining” (see paragraph 62 of the judgment). In that regard, the European Court noted that the Convention did not impose any specific obligation to provide redress for wrongs or damage cause by the former German Reich and, furthermore, where the Federal Republic of Germany chose to redress such wrongs and damage, it had a wide margin of appreciating when choosing how and whom to compensate (see paragraph 63). The applicants in the present case, however, had no right to, and no legitimate expectation of, compensation. As the European Court said at paragraphs 65 to 67 in relation to applicants who were subject to forced labour as Italian military internees: “65. These applicants challenge both the exclusion of former prisoners of war from the definition of those eligible for compensation under the Foundation Act, and the decision that the Italian Military internees were to be regarded as prisoners of war, with their resultant exclusion from eligibility for compensation. Secondly, they complain about s.16 of the Foundation Law which excludes any further claims going beyond the benefits provided by the Foundation Law.

66. Whatever sufferings the applicants’ forced labour brought about, none of the Conventions referred to by the applicants establishes any individual claims for compensation. When the Foundation Law entered into force there was no legal provision, whether of an international or of a domestic character, supporting the applicants' claims against the Federal Republic of Germany. Furthermore, the applicants have been unable to point to any case law in their favour.

67. The Court therefore concludes that the applicants cannot claim to have had a legitimate expectation of compensation for their detention and forced labour during the Second World War.”

74. In relation to the particular cases of Mr Ferrini and M, the European Court held that they, too, did not have any right or legitimate expectation to the payment of compensation and so there was no breach of Article 1 of the First Protocol. It said at paragraphs 69 to 71: “69. These applicants complained that they were denied benefits under the Foundation Law and furthermore lost all further claims against the Federal Republic of Germany under s.16 of the Foundation Law.

70. The Court observes that the applicants were not subjected to forced labour as Italian Military internees, but as civilians.

71. These applicants, too, cannot claim to have had a legitimate expectation of obtaining compensation when the Foundation Law entered into force.

71. It follows that neither the denial of benefits under the Foundation Law nor the removal of further claims gave rise to issues under Art.1 of Protocol No.1 to the Convention.”

75. The European Court then considered the claim that there had been unlawful discrimination contrary to Article 14 of the Convention, read with Article 1 of the First Protocol. As it noted, Article 14 applied to the “enjoyment of rights and freedoms” guaranteed by the Convention. That did not require there to have been a breach of Article 1 of the First Protocol for a claim under Article 14 to arise but the facts at issue (here the claim for compensation for wrong or damage caused by the actions of the former German Reich) had to fall within the ambit of Article 1 of the First Protocol. In the present case, the facts did not fall within the scope of that provision. The applicants had no right or legitimate expectation of compensation. The European Court also considered, and rejected, the argument, that questions of compensation should be seen as similar to non-contributory social benefits, which had been recognised as falling within the scope of Article 1 of the First Protocol in Stec v United Kingdom (2000) 43 EHRR 47 . In that regard, the European Court said this at paragraphs 75 to 78: “75. The Court has already found that the Italian Military internees cannot claim to have a legitimate expectation of compensation for the detention and forced labour and that the facts at issue therefore do not fall within the ambit of Protocol No.1.

76. This finding is not contradicted by the Court's judgment in the case of Stec v United Kingdom . In that case the Court held that non-contributory social benefits funded by general taxation fall within the scope of Art.1 of Protocol No.1 . The Court decided that although that provision does not grant the right to receive a social security payment of any kind, if a state does decide to establish a benefits scheme, it must do so in a manner compatible with Art.14 (see Stec v United Kingdom (2006) 43 E.H.R.R. 47 ; subsequently confirmed by the Grand Chamber's judgment of April 12, 2006).

77. However, the present case is distinguishable from the case of Stec for the following reasons. It is true that both the present case and the case of Stec concerned non-contributory benefits which are partly funded by general taxation. However, while the case of Stec dealt with a supplementary regular payment and a regular retirement pension in the framework of social security, the subject of the instant case is a one-off payment granted as compensation for events which had occurred even before the Convention entered into force and represented, in a wider sense, a settlement of damages caused by the Second World War. The payments were made outside the framework of social security legislation, and cannot be likened to the payments in Stec.

78. The Court therefore concludes that the facts of the present case do not attract the protection of Art.14 in conjunction with Art.1 of Protocol No.1. It follows that the applicants' complaints are incompatible ratione materiae with the provisions of the Convention and the Protocols thereto within the meaning of Art.35 s.3 of the Convention, and must be rejected pursuant to Art.35 s.4.”

76. The European Court was considering, therefore, whether the claim in the Italian Interns case fell within the scope of Article 1 of the First Protocol. In that regard, it considered whether the case law bringing non-contributory social benefits within the scope or ambit of Article 1 of the First Protocol applied to compensation payments (essentially by analogy) and concluded that it did not for the reasons given in paragraph 77. It was not, in that paragraph, seeking to define the scope of a determination of a civil right for the purposes of Article 6 of the Convention. The Italian Interns case, read properly and as a whole, is not therefore inconsistent with the decision in Woś . Indeed, it is noteworthy that, at various stages in its judgment, the European Court expressly refers to and applies the decision in Woś , see e.g. paragraphs 63 and 84.

77. For completeness, I note that a similar analysis applies to the decision of this Court in JT . There the Court was considering the payment of compensation pursuant to the Criminal Injuries Compensation Scheme. Under that scheme, a claimant could not claim compensation for sexual assault where the claimant had lived with the assailant as members of the same family. The applicant, JT, could not therefore claim compensation for sexual assaults perpetrated by her step-father. The issue was whether that provision amounted to unlawful discrimination contrary to Article 14, read with Article 1 of the First Protocol, of the Convention. Leggatt LJ began by considering whether a claim for compensation for criminal injuries fell within the ambit of Article 1 of the First Protocol. It was in that context that Leggatt LJ considered how the European Court had distinguished compensation schemes from the kind of non-contributory benefits that had been held to fall within the scope of Article 1 of the First Protocol in Stec . He concluded that the basis for that distinction was that “claims to compensation under the scheme could not be regarded as amounting to entitlements protected by A1P1 in circumstances where payments made under the scheme were in the nature of extraordinary, one-off ex gratia payments” made outside the framework of social security legislation (see paragraph 62). Those observations are again directed towards the scope of Article 1 of the First Protocol not the definition of a civil right within the meaning of Article 6. In any case, Leggatt LJ, with whom the other members of the Court agreed, ultimately concluded that payments made under the Criminal Injuries Compensation Scheme did fall within the scope of Article 1 of the First Protocol holding at paragraph 67 that: “67. The question is then whether, applying the test established by the Stec case, the legislation provides for payments to be made as of right. Although payments made under the criminal injuries scheme were originally discretionary and ex gratia in nature (being described in R v Criminal Injuries Compensation Board, Ex p P , para 84, as “not a right but a privilege” and as a “manifestation of the bounty of the Crown”), that is no longer the case. Since the scheme was placed on a statutory footing in 1995, a victim of crime who fulfils the eligibility conditions has a right to an award under English domestic law. That was accepted by the Home Secretary and by CICA in [1994] 1 All ER 80 C v Secretary of State for the Home Department at [41], in the context of article 6.1. It was also accepted by the court on an application to the European Court of Human Rights in that case: see [2004] EWCA Civ 234 CB v United Kingdom CE:ECHR:2005:0825DEC003551204 , para 2.”

78. The decision in JT , therefore, concerns the scope of Article 1 of the First Protocol to, not Article 6 of, the Convention. Further, the actual finding was that payments under the Criminal Injuries Compensation Scheme did fall within the scope of Article 1 of the First Protocol. The decision is not authority for the contrary conclusion, namely that compensation payments cannot amount to a civil right within Article 6. The judgment below

79. Against that background, I turn to the treatment of this issue in the judgment below. I respectfully disagree with the judge’s analysis of the case law and I also consider that the judge failed to attach importance to factors regarded as important indicators of whether a right is a civil right within the meaning of Article 6 of the Convention.

80. First, I respectfully disagree with the reasons given for distinguishing the judgment in Woś from the present case. The judge’s reasoning in this regard is contained in paragraph 60 of his judgment which is set out above. First I consider that the judge erred in concluding that the judgment rested on the European Court’s decision that payments made by the Foundation were welfare or benefit payments and that an important part of the reasoning of the European Court in this regard was that the payments concerned subsistence and the Foundation in Woś was a creature of statute. On a correct reading of Woś, it is clear that the Foundation was established under a statute in that the relevant law allowed an individual or legal person to establish a foundation. The relevant government minister did so and registered the Foundation with the court. The rules governing eligibility were not set down in legislation (and could not be described as statutory) but were regulations adopted by the supervisory board of the Foundation. It is not correct to read the judgment of the European Court as if it treated the origins of the Foundation as forming a part of, still less an important part of, the European Court’s reasoning.

81. Secondly, the judgment below fails to reflect the analysis of the European Court at paragraph 76 of its judgment in Woś where it specifically considers whether the disputed right amounted to a civil right. The judgment does refer to the decision interfering with the applicant’s means of subsistence but also says that he “was claiming an individual, economic right flowing from specific rules”. For those reasons, the European Court concluded that the right to claim compensation under that scheme “could be considered to be “civil” for the purposes of Article 6(1)”.

82. Thirdly, I disagree with the judge’s analysis of Italian Interns case. In particular, I consider that it is incorrect to regard the fact that a scheme which is a special scheme set up to provide one-off payments as reparation for a particular historic wrong as indicating that rights, or disputed rights, derived from such a scheme are not civil rights within Article 6 (see the reasoning in paragraph 69 of the judgment below which is set out above). As appears from the discussion above, those factors were considered relevant in the Italian Interns case (and in JT upon which the judge also relied at paragraph 66 and 68) to the question of whether the claim to compensation fell within the ambit of Article 1 of the First Protocol when considering a claim for discrimination under Article 14 of the Convention. They were not addressed to the different question of whether such rights, or alleged rights, amount to civil rights for the purpose of Article 6.

83. Similarly, I do not consider that the fact that the Scheme is not statutory is, of itself, conclusive. Indeed, in Woś the scheme was not statutory. It depended on regulations made by the Foundation rather than legislation. Nor do I consider it relevant that the Scheme was not concerned with the relief of ill-health or poverty (a matter referred to in paragraph 70 of the judgment) as indicative, still less determinative, of whether claims under the Scheme can give rise to civil rights. It is clear from Woś that a scheme which is intended to provide redress for wrongs suffered, and which affects the financial well-being of the individual can amount to a civil right for the purposes of Article 6. The Scheme in the present case

84. I turn then to the Scheme. It is intended to provide compensation for individuals who suffered loss as a result of the actions of the State. The Scheme sets out specific rules which are prescriptive, and closely defined, identifying who is eligible to claim, what types of loss may be the subject of compensation and how the amount of compensation is to be calculated. If a person satisfies the relevant conditions set out in the rules, he will qualify for an award of compensation in an amount specified by, or determined in accordance with, the rules of the Scheme.

85. That appears from a consideration of the provisions of the Scheme. Part 2 sets out the six groups or categories of persons who are eligible to claim. If a person falls within one of those groups, he is eligible to claim compensation. The awards that may be made are divided into categories intended to reflect the potential financial loss suffered. The rules provide that a person will qualify for an award in that category if he demonstrates that the loss has been suffered. The amount of compensation is, in the majority of the cases, specified or is calculated arithmetically or by reference to a formula set out in the rules.

86. By way of example, Annex B provides that an “award representing the amount of fees paid for an immigration application” may be claimed and sets out the conditions that must be satisfied. If the applicant can demonstrate that he satisfies the conditions, the amount of the compensation under this head is the amount of the immigration application fees that the applicant actually paid and a contribution to any legal costs of making such applications limited to the lesser of the actual amount paid or £500. Similarly, under annex C, an award may be made if the applicant was detained or deported and sets out the conditions under which an award may be made. The Home Office must determine, on a balance of probability, whether the conditions are satisfied. If so, the amount of award is calculated by reference to amounts set out in a table. An award of £10,000 is made if a person is deported. The amount of an award if the person is detained is calculated by an hourly rate for the period of detention.

87. In the present case, the appellant claimed under annexes D and H. Annex D deals with loss of access to employment. The conditions are set out: the applicant must be able to demonstrate that he lost employment, or was unable to obtain employment, and the reason for that was the inability of the applicant to demonstrate his lawful immigration status. If the applicant has lost employment, he will recover the amount of earnings lost for a period established in accordance with the relevant provisions of the Scheme. If the applicant was unable to obtain employment, he will receive an award calculated by reference to a monthly rate (of £1,147) for a period established in accordance with the provisions of the Scheme. In relation to annex H, an award may be made for specific detrimental impacts identified in the rules, and the question of whether the applicant has suffered one or more of the specified detrimental impacts on the basis of the available evidence provided and on a balance of probabilities. Thereafter, the amount of the award is determined by reference to a table, which fixes prescribed amounts depending on the level of detrimental impact suffered.

88. The entitlement to compensation, therefore, does flow from the specific rules of the Scheme. The application of those rules do not, in truth, involve any exercise of discretionary powers. Rather, they involve the decision-maker considering the available evidence and determining, on the balance of probability, whether or not the specific conditions for payment have been satisfied. The amount of an award is fixed, or calculated by reference to a formula, or is intended to be related to the level of loss or harm suffered. All those factors indicate that claims for compensation under the Scheme are capable of being a civil right within the meaning of Article 6 such that, if a genuine dispute had to be resolved about such rights, then the procedural safeguards in that article would apply to the determination of that dispute.

89. It is correct that the ability to claim compensation does not give rise to rights that would be classified as private law rights under domestic law and they would not be enforceable in private law proceedings. However, the concept of “civil rights” under Article 6 is an autonomous concept, that is one whose content is determined ultimately by the application of the Convention not principles of domestic law (see Woś at paragraph 76). The ability to claim compensation does, as a matter of domestic law, give rise to public law rights enforceable by way of a claim for judicial review. Where a public body adopts a policy, or sets out rules, containing criteria governing how particular decisions will be taken, individuals are, generally, entitled to have their cases determined in accordance with those criteria (see, for example, R (A) v Secretary of State for the Home Department [2021] UKSC 37 ; [2021] 1 WLR 3931 at paragraph 3, and R (WL (Congo) v Secretary of State for the Home Department (Justice Intervening) [2011] UKSC 12 ; [2012] 1 AC 245 at paragraph 35). Thus an individual may bring a claim for judicial review to ensure that the criteria are properly interpreted and lawfully applied in his case. The fact that the provisions of the Scheme are enforceable in public law by way of a claim for judicial review, rather than by giving rise to private law rights, does not prevent the rights derived from the Scheme falling within the scope of a civil right for the purpose of Article 6.

90. The Director relies upon the fact that the Scheme is voluntary, and payments are made ex gratia , as a matter of the bounty of the executive and is not statutory. Those, Sir James Eadie submits, are powerful indicators that rights derived from the Scheme are not civil rights.

91. The Scheme is voluntary, or ex gratia, in the sense that there was no obligation to establish a scheme to compensate those who had suffered loss as a result of actions of public officials. However, once the government has decided to adopt such a scheme, and has provided that, if an individual satisfies the conditions prescribed in the rules, he will be compensated. It is clear from Woś at paragraph 75, that such payments cannot be regarded as simply an ex gratia payments when assessing the applicability of Article 6 and whether there is a genuine dispute involving the determination of a civil right to which the procedural guarantees in Article 6 apply.

92. Nor does the reference to the compensation being paid as a matter of the bounty of the executive have any real substance in modern times. The reality is that the compensation is paid from public funds. Indeed, section 1 of the 2020 Act authorises the payment of compensation from money provided by Parliament.

93. Similarly, the fact that the rules are not statutory in that they are not contained in primary or secondary legislation, does not prevent the rules from giving rise to a civil right. In the United Kingdom, rights may be conferred by legislation, or there may be prerogative powers to do certain acts which may give rise to rights in certain instances. Further, the case law (although not all academic commentators) recognises that the Crown, acting through government ministers, may have common law powers in that they may do acts that any other legal individual may do. In the present case, the Scheme was established, and the rules prescribed, by the Secretary of State as a recognition that those who had suffered wrongs as a result of actions of public officials should be compensated for the loss suffered as a result. The fact that the rules were not statutory in origin does not prevent any rights under the Scheme from falling within the scope of a civil right for the purpose of Article 6. That is consistent with the decision in Woś where the rules were made by a Foundation established by a government minister.

94. For completeness, I do not consider that the decisions of the Supreme Court in Ali v Birmingham City Council [2010] UKSC 8 ; [2010] 2 AC 39 and Poshteh v Kensington and Chelsea Royal London Borough Council [2017] UKSC 36 ; [2017] AC 624 indicate any different conclusion. Those cases deal with a different set of statutory provisions, namely the provisions of the Housing Act 1996 governing homelessness, and do not ultimately assist in determining whether any rights derived from the Scheme are civil rights within the meaning of Article 6 of the Convention.

95. For all those reasons, if there were a genuine dispute about a decision governing eligibility under the Scheme, I would regard that as involving a determination of a civil right within the meaning of Article 6 of the Convention. The Scheme is established by government. It sets out precise, defined conditions which, if they are met, entitles the applicant to an award of monetary compensation in an amount specified by, or determined in accordance with, the rules. Money from public funds is provided to pay such awards. Claims for compensation under such a scheme are in my view capable of constituting civil rights within the meaning of Article 6 of the Convention. THE QUESTION OF COMPLIANCE WITH ARTICLE 6

96. Breaches of Article 6 will only occur if both Article 6 applies to the proceedings in question and there has been a failure to comply with its express or implied requirements. In the present case, the allegation was that a failure to provide publicly funded legal representation to assist the appellant in applying for compensation would involve a breach of Article 6. In the event, as it is accepted that Article 6 did not apply to the process of applying for an award of compensation, this issue does not arise and does not need to be decided (and we did not receive submissions on this issue).

97. I would, however, make the following observations. First, there is no specific right to legal representation recognised in Article 6. There is case law of the European Court dealing with the circumstances in which, nonetheless, a failure to provide legal assistance might result in a violation of Article 6. Any consideration of this issue would require careful consideration of that case law. Secondly, there are many instances, involving often legally or factually complex issues (such as employment law disputes, family disputes, civil law disputes) where legal aid is not available as a matter of domestic law and where the domestic courts have not considered that legal representation is necessary to ensure fairness to the individual or to ensure that the individual has an effective means of bringing a claim. Thirdly, the Secretary of State did provide assistance in various forms to those applying for compensation. If the appeal had required further consideration of this matter, it would have been relevant, and certainly helpful, if the Secretary of State had been invited to provide factual evidence of what forms of assistance were available to the appellant. That would have formed part of an assessment of whether the failure to provide legal representation would amount to a breach of Article 6, if that article had been applicable. Fourthly, the appellant had sought in the High Court to admit evidence from Justice, and the solicitor for the appellant, as to their opinions on the question of whether applications for compensation under the Scheme can effectively be pursued without legal assistance. It is not necessary for us to consider the admissibility, or relevance, of such opinions. Ultimately, it would have been a matter for the court to assess whether or not a failure to provide legal representation would, in this particular case, have led to a breach of Article 6 if that article had been applicable. GROUND 3 – SECTION 103(B) OF THE 2012 ACT

98. The third ground of appeal was that, even if funding of legal representation was not necessary to avoid a breach of Article 6, the Director had a discretion under section 10(3) (b) of the 2012 Act to make an exceptional case determination to avoid any risk of a breach of Article 6. This argument was not pursued in the appellant’s written replacement skeleton argument or oral submissions. In any event, it would appear on the facts of this case to run contrary to the decision in Guadanaviciene . There, the Court considered that the discretion in section 10(3) (b) arose where the Director could not decide that there would be a breach of Article 6 if an exceptional funding were not provided and could then consider the discretion under section 10(3) (b) (see paragraph 32 of the judgment). In the present case, it is now clear (and appears to be accepted) that Article 6 does not apply to the process of making an initial application for compensation under the Scheme. In those circumstances, the Director (and the reviewer when upholding that decision) were correct to refuse to make an exceptional case determination as there would be no breach of Article 6 if legal representation was not provided for that purpose. Nor, logically, could any risk of a breach of Article 6 arise as the article was not applicable. In any event, the matter is now academic as the appellant made an application for compensation, that application has been assessed, reviewed and an offer of compensation made which the appellant has accepted. The question of the exercise of any discretion under section 10(3) (b) does not therefore arise. CONCLUSION

99. I would dismiss this appeal. The process of applying for an award of compensation does not involve the determination of a dispute between parties and Article 6 is not applicable to that process. Consequently, the judge was correct to dismiss the claim for judicial review of the decision of the reviewer, upholding the earlier decision of the Director, refusing to make an exceptional case determination. LORD JUSTICE STUART-SMITH

100. I agree. LORD JUSTICE PETER JACKSON

101. I also agree.