Immigration Judicial Review UK: Challenging Home Office Decisions

What is a Judicial Review in UK?

Judicial review is a type of court proceeding, defined under the Civil Procedure Rules, that lets you challenge the lawfulness — not the merits — of a decision made by a public body such as the Home Office. As gov.uk states, judicial review can ‘challenge the lawfulness of a decision or other conduct by a public body in your asylum or immigration claim,’ and must be filed no later than 3 months after the decision..

When it comes to immigration law, the judicial review procedure can be used to challenge administrative decisions made by the Home Office in relation to your immigration, human rights, or asylum application.

As well as being used to challenge decisions made by the Home Office, judicial review can also be used to challenge decisions made by the First-Tier Tribunal.

Before making a claim for judicial review you should also consider your other options. Judicial review is different to an administrative review or appeal, a judicial review cannot be used to determine whether your case is right or wrong it can only be used to determine whether the process used to reach the decision in question was lawful.

Appeals and reviews of decisions made by the Home Office can be complex and seeking the advice and assistance of an immigration specialist and advocate is highly recommended.

Who Can Apply for a Judicial Review in the UK?

To apply for judicial review in the UK, you must have ‘sufficient interest’ in the decision being challenged — meaning it directly affects you or a group you belong to. Only decisions you believe were unlawful qualify; if you simply disagree with the outcome, an appeal is the correct route instead.

You must make your application within 3 months of the decision (Civil Procedure Rules 54.5), and — per gov.uk — ‘if you apply late, you will need to explain why in the form.’

There are 3 main grounds that an application for judicial review can be made on, they include illegality, procedural unfairness and irrationality.

The Immigration Judicial Review Process UK: Step by Step

The judicial review process is often lengthy and time-consuming. There are several different stages of the process that you will have to go through, each with its own complexities.

The 3 main stages of the process include:

Stage 1: Pre-action conduct – these are the steps that you must carry out prior to making your claim for judicial review.

Stage 2: Application for permission – if the result of the pre-action conduct is not satisfactory then you can apply for permission for a judicial review.

Stage 3: The substantive Judicial Review hearing – if you are granted permission, a substantive judicial review hearing of your case will be held for your judicial review claim.

Information about the actions required at each stage of the process is detailed below.

Pre-Action Protocol for Judicial Review: What to Do First

This section outlines the steps that you must take before making your claim, they include:

• Attempting to find an Alternative Dispute Resolution – you must prove that before making the claim you have attempted to find alternative remedies to resolve your matter out of court
• Requesting any necessary information and documents
• Sending a letter before the claim – as part of the required pre-action correspondence you must notify the public body whose decision you are challenging that you intend to make a claim for judicial review, In this letter you should give a response deadline which is usually 14 days
• Waiting for a letter of response – it is common to not receive a letter of response from the public body but you must still wait until the response deadline before you make your claim

As part of the Pre-Action Protocol, the judge expects both parties, the applicant and the Home Office, to have exchanged enough information before court proceedings, so that both parties may understand each other’s position clearly and try to resolve the issue without court involvement.

This is where a PAP letter becomes crucial. A well-drafted, specific and proportionate ‘letter before claim’ that bases its arguments on solid legal grounds will decidedly be more effective in eliciting an appropriate response from the Home Office. It may also be your chance to salvage your immigration case.

In the R (Shajna Begum) v Entry Clearance Officer case (JR-2024-LON-003343) where the Home Office refused the applicant a visitor visa multiple times, the Upper Tribunal judge noted that the second PAP letter sent by the visa applicant in February 2024 was not considered by the Home Office caseworker(s) when reviewing the case as part of the pre-action protocol.

The judge maintained that this failure amounted to a public law error. The concerned officers in this case ignored those rules by issuing repetitive, formulaic refusals that completely overlooked the applicant’s detailed explanations shared during the PAP stage, although they are instructed to assess every application individually on its own merits.

Failure to carry out the steps outlined in the pre-action protocol could, in fact, result in sanctions being imposed on the concerned party during the proceedings.

Our competent and experienced immigration lawyers can save the day at this very stage even before your case goes to court. They can provide you with legal advice and assistance and guide you through the PAP procedure to ensure that (a) you remain compliant with the requirements and (b) you make the best of the alternative options you have to settle your matter out of court, saving both time, money and further legal hassles.

Applying for Judicial Review: Permission, UTIAC1 Form & Evidence

If after following the pre-action conduct an agreement still cannot be reached then you may submit an application for permission for a judicial review.

You must submit an application for permission to the correct courts, this could be either the Upper Tribunal or the Administrative Court, the correct court will depend on the individual case and an immigration lawyer can advise you who to file the application for permission with.

To file an application for permission you must complete and submit an application form. As part of the application form, you will be asked to provide details about the type of remedy that you are seeking. You will also need to demonstrate that you have an “arguable case”. As well as the application form you will also need to submit a detailed grounds of review and your supporting evidence.

You must also send a copy of your application for permission to the public body you are making the claim against. Once you have done this they will have 21 days to file what is known as an “acknowledgement of service”, this must set out their ground for contesting the claim. Sometimes the defendant may agree to settle the case at this stage.

If the case is not settled at this point then the court will consider the evidence submitted by both parties when deciding whether to grant permission for a judicial review. If you are successful, the next stage is the substantive hearing.

The Judicial Review Hearing: What to Expect

It usually takes between 3-6 months for the court to make a decision on your permission application. If a judge grants permission, then your case will go to trial. Before your judicial review hearing you will need to submit a skeleton argument that should include the following details:

• The points you intend to raise at the hearing
• A timeline of your case
• The documents that should be read by the Tribunal or High Court in advance of the hearing.

You must submit your skeleton argument at least 21 days before the hearing.

When it comes to your hearing either you or your lawyer will state the legal argument to a judge who will listen and consider it in detail.

Judicial Review Outcomes: Quashing Orders, Injunctions & More

When you submit your judicial review claim form you must state the remedy that you a pursuing, this can be one of the following:

• Mandatory order – this is to force a public body to do something the law says it has to do
• Prohibiting order – this is to prevent a public body from making an unlawful decision that has not yet been made
• Quashing order – this overturns or undoes a decision that has been made
• Injunction – this is a temporary order that requires a public body to do something or prevents them from doing something whilst you are waiting for a decision in your case to be made

If an immigration judicial review application in relation to an immigration case is successful this will usually result in either a quashing order or an injunction.

A quashing order means that the Home Office will have to remake a decision.

Urgent Judicial Review Applications: Forms & Deadlines

If your case is at the Upper Tribunal, you can request urgent consideration using Form UTIAC4 (filed with your application) or UTIAC5 (if filed afterwards) — there’s no extra fee for UTIAC4, and a £298 fee applies to UTIAC5. Cases at the Administrative Court instead use Form N463.

When it comes to immigration and asylum cases there may be several situations in which your case could be considered urgent, this includes if:

• You are facing removal from the UK
• There is an urgent need for an interim order to force a public body to act where it has refused to do so in an unlawful way
• A local housing authority has failed to secure interim accommodation for you and you are homeless

If your case is deemed urgent then you are not expected to follow the pre-action protocol, however, you should still inform the defendant that you intend to make a claim. Urgent cases will be processed quicker, and you may be able to get an urgent decision from a judge without going through some of the stages outlined above.