What is judicial review?
Judicial review is a type of court proceeding that can be used to challenge the lawfulness of a decision or act made by public bodies, including ministers, local authorities, and others who exercise public functions.
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 make a claim for judicial review?
To be eligible to make a claim for judicial review you, the claimant, must have a “sufficient interest” in the case. A sufficient interest means that the case affects you in some way, this could be because the case is in relation to a decision that you are the subject of or that you are part of a group or community who have been affected by the decision.
As well this, there is also a time limit on judicial review claims, you must make your application within 3 months of the decision and after the grounds for claim arose.
There are 3 main grounds that an application for judicial review can be made on, they include illegality, procedural unfairness and irrationality.
Immigration Judicial Review Application process
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
Before applying for a judicial review it’s important that you follow the pre-action protocol. The pre-action protocol 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, such as making an appeal to a higher 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
Failure to carry out the steps outlined in the pre-action protocol could result in sanctions being imposed later on in the proceedings.
Application for permission
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.
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.
After the Immigration judicial review
Following the oral hearing, the judge will adjourn the case. They will then create a written judgment about the decision in question and will supply the reasons as to whether the defendant acted lawfully or not as well as details about what should be done.
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 applications for UK visa judicial reviews
In most cases the process and timelines involved in judicial review claims must be strictly followed, however, there are special allowances made for urgent consideration. You can make an urgent application for judicial review by submitting 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.
How can IAS help with your Immigration Judicial Review application?
Judicial review cases are complex and the process is very difficult to navigate alone, for this reason, it is highly recommended that you seek the assistance of a legal professional to help you with your immigration judicial review claim.
Our immigration lawyers are familiar with the appeal system and the UK visa and immigration judicial review proceedings, we can support you throughout your claim for judicial review.
Our Appeal Package provides a comprehensive service in which we would undertake and manage the entire process for you.
In our Appeal Package, one of our specialist immigration lawyers will:
- take detailed instructions from you about your situation;
- discuss the appeal requirements of the UK Immigration Rules and how they are relevant to your case;
- provide you with detailed advice on the merits of appealing against the refusal;
- complete and lodge all the required appeal forms to a professional standard;
- develop a detailed and comprehensive document bundle for the court outlining the details and merits of your appeal in chronological order, and why it should be accepted;
- expertly represent you at the full hearing before the tribunal, and liaise with the appellate authorities for the duration of your appeal.
Last modified on July 16th, 2023 at 8:21 pm
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A Judicial Review is the name given to a court proceeding, in which a judge agrees to review the validity of your entry clearance decision.
Judicial Reviews are therefore a type of appeal, but they differ from other appeals in that they question and challenge how the final decision has been reached rather than if the decision itself is right or wrong. For immigration, it means how the Home Office’s decision for your immigration application was reached.
If you are refused permission for a judicial review is refused you might be able to request a hearing in which you can put forward an argument for why your claim should be granted. If you are successful in this hearing then a judicial review will be granted.
Judicial review is usually an expensive process, however, the costs will vary from case to case. If your judicial review claim is successful then the defendant may be ordered to pay your costs. However, if you are not successful you may also be required to pay the legal costs of the defendant.
In some cases, Legal Aid may be available to cover some of the costs.
Judicial review applications are usually processed and handled by the upper tribunal, the administrative court, the high court, or the Court of Appeal.
Certain immigration decisions can be challenged by filing a judicial review case in the Upper Tribunal. You can do this if you have not been given the right of appeal against a visa or immigration refusal.
You may also want to do a Cart Judicial Review in the high court. This is only necessary if you’re going to challenge a decision made by the Upper Tribunal, Immigration and Asylum Chamber. Such a challenge must be brought within 16 days of the previous decision for an oral permission hearing.
There is also judicial review at the court of appeal. This is to challenge a High Court or Upper Tribunal rule or decision regarding your immigration Judicial Review.
Regardless of which you need, you can obtain a legal representative or more and support at IAS. We will work to ensure your chances are maximized for a successful judicial review.
A judicial review should only be considered if there are grounds for illegality, procedural unfairness, and irrationality in the Home Office’s decision. That may include any of these scenarios:
- Your asylum or claim according to the human rights act was certified by the Home Office because they think it is “clearly unfounded”.
- In this case, you have no right of appeal in the UK
- Further submissions were rejected as not a fresh claim, and you don’t have the right of appeal
- Your application for asylum is being transferred to another European country due to inadmissibility
- You have been unlawfully detained
- You don’t have permission to appeal at the Upper Tribunal, but you believe an error of law occurred during your immigration application decision process.
- You want to challenge an impending removal.