Judicial Review for UK Visit Visa Refusal

Whilst many UK standard visitor visa applicants are successful in their request for a visa, sometimes, and for various reasons, an application is denied by the home office. This means entry to the UK is refused. The most common reasons for refusal include:

• The applicant has a criminal record or is deemed to pose a threat to national security.
• The applicant owes a debt to the NHS.
• The applicant does not meet the specific eligibility criteria (for example, they cannot prove they have the financial means to support themselves).

If an application for a UK visitor visa is refused there are different legal processes available in order to challenge the decision and gain entry to the UK in accordance with UK immigration laws. One option is to consider applying for a judicial review.

Page Contents

• Common Reasons for UK Standard Visitor Visa Refusal
• What is a Judicial Review?
• Visit Visa Refusals: Appeal or Judicial Review?
• Who is Eligible to Make a Claim for a Judicial Review?
• Understanding the Grounds on Which a Judicial Review Claim Can Be Made
• Can I Apply for a Judicial Review If I Have a Criminal Record?
• The Process of Applying for Judicial Review
• Preparing for the Final Hearing
• After The Final Hearing
• What If My Request Is Urgent?
• Judicial Review: Legal Costs
• What Is the Success Rate for Judicial Review Cases?
• How Can IAS Help?

A judicial review is a legal process in which the decisions of public bodies such as local authorities and those acting on behalf of the government (including the home office) can be challenged.

In terms of immigration, the process differs from a traditional appeal in the fact that it is the decision-making process that is challenged rather than the actual decision. If the decision-making process can be deemed to be unlawful it is possible (in some cases) to overturn refusal decisions and gain entry to or extend a stay in the UK.

The application is put forward to a judge who will determine whether or not the law has been applied correctly to the case and that all legal procedures have been followed in accordance with UK law and immigration rules.

If the judge considers the decision-making process that determined the outcome of a visa application to be unlawful, they can grant permission to reconsider the application in its entirety.

To be eligible to make a claim for a judicial review, claimants must meet certain criteria. For example, the claimant must have a ‘significant interest’ in the case. This means that the case directly affects the claimant in some way, whether this be as an individual or as part of a group.

In addition, there are certain grounds on which a claim can be made. These include:

• Illegality
• Procedural unfairness
• Irrationality

All applications must be made within three months of the initial refusal decision date and after the grounds for the claim arose.

When challenging a visa refusal decision in the UK, there must be grounds to do so. This means that it is believed that all or part of the process used to reach the refusal decision was unlawful or unfair in some way.

In order to determine whether or not the decision-making process could be deemed unlawful, it could be useful to consider the following matters:

• Has the ECO correctly applied the relevant law as set out in the UK’s immigration rules?
• Is the decision in line with the home office’s policy on visitors?
• Has the ECO taken all evidence into account?
• Has the ECO made a factual error?
• Has the ECO provided the applicant with detailed reasons for their decision of refusal?
• Could the decision be deemed to be unreasonable?

If the applicant can provide sufficient evidence that they have grounds to challenge a refusal decision then they have the right to proceed with a judicial review claim.

Having a criminal record can bring extra complications to an already complex procedure such as a judicial review. For example, immigration law in the UK states that it is mandatory to refuse entry to some people that have a criminal record or are judged to pose a risk to national security.

Visa applications will be refused without question if:

• An applicant has been imprisoned for four years or more.
• An applicant is subject to a deportation order.
• An applicant has been sentenced to a period of imprisonment between twelve months and four years (unless a period of ten years has passed since the sentence).
• An applicant has been sentenced to a period of less than twelve months (unless a period of five years has passed since the sentence).

Where these rules apply, unless refusal can be proven to inhibit the applicants’ human rights, it will only be in exceptional circumstances that a claim would be successful. For this to happen factors in the case must be extremely compelling to outweigh public interest.

Usually, a judicial review would not be the right course of action for those refused on criminal grounds, however, each case is treated individually and therefore it is dependent upon the applicant’s criminal history, current status and personal circumstances.

Step 3

The respondents have 21 days from the date of submission of the sealed copies of the application to acknowledge with the tribunal that they have received the documents.

Then, a judge will look into the case and determine whether or not the case should proceed to a judicial review hearing. Further action is dependent on the outcome of the judge’s decision. For example, if permission for a hearing is granted, applicants must:

• Pay the fee using a UTIAC12 form – This must be completed within nine calendar days of the judge’s decision or the case will be considered invalid (struck off).
• Await a final hearing date.

If permission for a hearing is refused the judge will determine whether the application is:

• Totally without merit.
• Not totally without merit.

If the application is determined to be totally without merit, the applicant will not be able to proceed any further unless an appeal is lodged and granted. (To launch an appeal applicants must complete and submit the UTIAC14 form).

If the application is determined to be not totally without merit then the applicant can request a reconsideration on the same grounds as the initial application by completing and submitting the UTIAC11 form.

Step 4

Should the applicant’s request be granted and permission for a final hearing given, a judge will decide whether or not the decision-making process that determined the initial refusal decision was lawful.

If deemed incorrect, the judge will also be responsible for the outcome of the case. For example, they will specify what action needs to be taken by the respondent body.

If the applicant is unsuccessful in their judicial review claim they may be able to ask for permission to appeal but this is at their own expense.

If permission is given for a final hearing to go ahead, it is wise to prepare for it so that all evidence can be submitted in a timely and organised fashion. There are certain things applicants may need to ask the tribunal to consider before the hearing takes place. For example:

• Applying for a summons for a witness to attend the hearing – Often applicants wish for someone to attend the hearing as a witness. This could be a family member, friend, support worker or other professionals that can support their application. Occasionally, applicants may wish for a witness to attend the hearing that does not agree to do so, (for example, a doctor). In this situation, the applicant can apply for a ‘summons’ or an order from the tribunal for them to attend.
• Applying to adjourn a hearing – So long as all parties in the case agree, applicants can apply for their hearing to be adjourned for free so long as it is at least 14 days away. To do so, applicants must complete and submit the UTIAC9 form available on the UK government’s website.
• Inform the UTIAC of a change in circumstances – It is the applicant’s responsibility to inform the tribunal of any updates or changes to their legal representation.
• Request copies of the tribunal documents – Applicants have the right to request copies of all documents lodged in their application file for a small fee.

Any action taken after the final hearing will be based on the outcome of the judicial review claim. For example, if the judge determines that the decision-making process used in the initial application is unlawful, they will prepare orders to the recipient body (such as the home office) on the actions they must take to make it so. This could mean that a refusal decision is overturned and the applicant is then allowed entry to the UK.

If the judge determines that the decision-making process on the initial application was lawful in its conduct, the claimant will be unsuccessful in regard to their claim. It is possible to appeal an unsuccessful outcome however the cost must be met by the applicant.

Where exceptional circumstances apply, applicants can put through their judicial review claim to be considered urgent. These applications are usually reviewed the day they are received by the tribunal. Exceptional circumstances include:

• Being removed from the UK in the immediate future.
• The need to be in the UK asap.

To register an application as urgent applicants must download the application for urgent consideration or interim relief with the UTIAC1 form (UTIAC4) from the UK government’s website.

There are several stages to applying for judicial review and various legal costs involved. Firstly, applicants must submit their initial application with a fee that currently stands at £154.

If the initial application for a judicial review is successful and permission is granted for a final hearing, a further cost of £770 must be paid to ensure court proceedings go ahead.

Some applicants may be able to apply for financial aid to help them pay the fees if they meet certain criteria. (For example, if they are on a low income or claim certain benefits).

Applicants wishing to challenge a decision made by the home office via judicial review may often wonder what the likelihood of being successful in their claim may be. However, it is important to remember that all cases are judged individually and upon their own merit and therefore it is not possible to speculate outcomes. A judge will review all evidence and check that the law has been applied appropriately to the case in order to reach their decision.