Immigration Judicial Review

• What is judicial review?
• Who can make a claim for judicial review?
• The judicial review process
• Pre-action protocol for judicial review
• Application for permission
• The hearing
• After the judicial review
• Urgent applications for judicial review
• How can IAS help?
• Frequently asked questions

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.

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.

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.

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.

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.

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.