Pre-Action Protocol for Judicial Review – Legal Support With Visa Refusal

What is Pre-action Protocol?

Before making a claim for judicial review, it is important that you follow the rules for pre-action conduct. This refers to the actions that you should take before you make your claim. 

The Pre-Action Protocol, which is contained in the Civil Procedure Rules, lays out a code of best practice and the steps that you should follow prior to seeking judicial review.

The pre-action protocol has 5 aims, including:

• To understand and identify the issues you are disputing in your claim and to share information and relevant documents
• To make informed decisions about whether to proceed and how to do this
• To attempt to settle the dispute without legal proceedings or to reduce the issues you are disputing
• To keep down the cost of resolving your dispute by avoiding unnecessary expenses
• To support the efficient management of proceedings where legal action cannot be avoided

If you fail to follow the steps outlined in the pre-action protocol then this will be taken into account during the Upper Tribunal hearing that may follow.

If you lose your case you may be ordered to pay additional costs for not following the pre-action protocol. If you win your case and you are awarded costs then this amount may be reduced because you have not followed pre-action protocol. There are also other sanctions that could come as a result of your failure to comply with the protocol.

What is a Judicial Review?

Judicial review is a procedure that can be used to challenge the lawfulness of an act, decision or failure to act of a public body that is exercising a public function.

In the field of immigration law, judicial review refers to the process of legally challenging the way that a decision has been made in your immigration, asylum or human rights-based application. Usually, judicial review is used in immigration cases to challenge a decision that has been made by the Home Office, although it can also be used to challenge a decision made by the First-Tier Tribunal. Most asylum and immigration judicial reviews in England and Wales are heard in the Upper Tribunal; however, in Scotland, they are heard in the Outer House of the Court of Session and in Northern Ireland, they are heard at the High Court in Belfast.

Judicial review is different from an appeal or administrative review as it does not determine whether the decision on your case is right or wrong, but rather how the decision was reached and whether that process was lawful.

The judicial review procedure is complex and it is important that you follow pre-action conduct correctly before you seek permission for judicial review. Below are the steps outlined under the pre-action protocol.

Finding an Alternative Dispute Resolution

According to the pre-action protocol, judicial review should only be used as a last resort when there is no alternative remedy. This is why the first step set out in the pre-action protocol is to try to find an alternative dispute resolution (ADR).

Both claimants and defendants could be asked by the court to provide evidence that they have attempted alternative ways of resolving disputes.

The pre-action protocol does not outline all of the methods that may be used when attempting to find an ADR but it does offer some guidance on options that may be appropriate if applicable to the circumstances. These include:

• Discussion and negotiation
• Using internal public authority complaints or review procedures
• An ombudsman
• Mediation

It’s important to note that an application for judicial review should be started no later than 3 months after the grounds for a claim first arose and that exploring alternative dispute resolutions cannot be used as an excuse for failure to meet this time limit.

What is a Pre-Action Protocol Letter?

A Pre-Action Protocol Letter is a legal letter written to the Home Office before court proceedings to try and resolve any matters first.

The Pre-Action Protocol Letter contains the key matters that would be raised in legal proceedings. It sets out all the legal grounds and shows how the action was unlawful.

It is also sometimes referred to as a ‘letter before claim’ or ‘letter before action’. It is typically used if you want to challenge a visa refusal.

When Can I Send a Pre-Action Protocol Letter?

You are allowed to challenge the unlawfulness of a UK visa refusal using a Pre-Action Protocol Letter against the Home Office in the following circumstances:

• The refusal does not confirm your rights to be able to appeal this decision or ask for an Administrative Review of the refusal of your immigration application.
• Your Administrative Review against the refusal of your immigration application has not been successful and you do not have the right to be able to appeal against this refusal.
• Your request for a re-evaluation of the refusal of applying for British citizenship by naturalisation (form AN) has not been successful.
• The Home Office has been unable to make a decision on your UK visa within a sufficient timeframe. This delay in the application being processed can be challenged using a Pre-Action Protocol Letter and further Judicial Review.

Requests for Pre-action Information and Documents

The next part of the pre-action protocol covers your right to request information and documents prior to the judicial review. It states that claimants can request that the defendant provides them with information and documents for the purpose of being able to gain understanding as to why the decision they are challenging was taken or to be able to identify the issues that they are making a complaint about.

Any requests for information must be proportionate and only for the purposes outlined above. The defendant must comply with requests for information providing that they meet these requirements unless there is a good reason for not doing so.

If the defendant fails to provide relevant information or documents then the court may impose cost sanctions against them.

Letter Before the Claim

The next pre-action conduct that you will need to perform is to send a letter to the defendant. This letter, known as the letter before the claim or the letter of claim, should be sent in good time before making a claim and must identify the dispute so that it can be established whether taking legal action can be avoided.

For immigration, nationality and asylum cases there is a form available that you can fill in instead of sending a letter of claim to the Home Office. The form will ask you to provide the following:

• Information about yourself including your name, date of birth etc.
• Information about your legal representative
• Your case reference numbers
• The type of claim you are making
• Information about the substance of your claim including the matter of the challenge, the issue and the action you would like the Home Office to take
• Details of any information or documents you are requesting from the Home Office
• Details of alternative dispute resolution proposals you have
• Your proposed reply date. You should usually give 14 days for this

You are not required to use the Home Office’s standardised form and you can instead send your own letter of claim to the Home Office. It is highly recommended that you seek the assistance of an immigration professional with your letter of claim as the letter must provide all of the information outlined in the pre-action protocol.

Why is a Pre-Action Protocol Letter Important?

If a client and their legal advisor do not send a letter of a written agreement before action, this may affect the court’s decision on who should have to pay the costs.

The judge will expect both parties to have followed the procedure before filing their appeals for review in the first instance. Failure to comply with these procedures will have consequences.

It is also important because if alternatives to court action have not been tried, the court may decide that court action was unnecessary and a waste of the court’s and the other party’s time and resources.

Writing a well-formulated pre-action protocol letter may increase the chances of the matter being resolved earlier, saving time and money.

The overall purpose of a Pre-Action Protocol Letter is for the party or individual bringing the judicial review to set out their case against the Respondent, the Secretary of State for the Home Department (the Home Office).

This means that the Respondent can consider your case before any commencing proceedings.

The objectives of the pre-action conduct are to:

• understand each other’s position
• try to settle the issues without court proceedings that have more legal costs
• support the efficient management of proceedings and practice direction where litigation cannot be avoided
• reduce costs for all parties in resolving the dispute

Does the Pre-Action Protocol Letter Affect My Lodging a Judicial Review Claim?

The pre-action protocol does not in any way affect the time limit for lodging a judicial review claim. The time limit begins from the date of the decision you wish to challenge regardless of whether or not you have engaged in the pre-action protocol.

The Letter of Response

The pre-action protocol states that the Home Office should usually respond to your letter within 14 days. If they fail to do this, this will be taken into account and sanctions could be imposed unless there are good reasons for them not issuing a response in time.

The letter of response should state whether they have conceded, conceded in part or denied your claim.

If the Home Office cannot reply within the proposed response time then they should give an interim response and should propose an extension on this time, give a date for their response and outline why they require an extension.

If the Home Office fails to respond to you within the 14 days, or if you are not satisfied with the response that they give you then you can seek a judicial review by submitting an application to the Upper Tribunal (Immigration and Asylum) Chamber.

Urgent Cases

It is not necessary to follow the pre-action protocol in urgent cases. If your case is urgent then you should make your claim for judicial review immediately. Urgent cases can include:

• If the claimant is facing removal from the UK
• If 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
• If a local housing authority has failed to secure interim accommodation for a claimant who is homeless

Despite the fact that urgent cases are not obliged to follow the pre-action conduct outlined in the protocol you will still be expected to notify the defendant prior to starting court action. You can do this by altering the defendant by telephone and emailing or faxing a draft of the claim form that you intend to use.

How Can IAS Help?

When it comes to immigration issues surrounding judicial review it is highly recommended that you see the assistance of a legal expert. This is because both the judicial review process and the pre-action protocol that comes before it can be incredibly difficult to navigate alone.

Here at IAS, our immigration lawyers are experts in judicial review issues and due to their extensive immigration training our team will be able to help you even if you have a very complex case.

Our lawyers can explain the pre-action protocol process and will ensure your compliance with the protocol and all of its necessary steps. Just a few of the ways that we can assist you include:

• Answering any questions you may have about pre-action protocols
• Helping you to request information and documents from the Home Office
• Preparing and sending your letter of claim for you
• Liaising with the Home Office on your behalf to find out whether there are other ways that the dispute can be resolved
• Preparing your application for judicial review permission if litigation is unavoidable

If you think your case may be urgent then our lawyers can also advise you about whether the protocol applies to your case.

For more information about how we can help you with pre-action protocols, contact us today on +44 (0)333 414 9244.