What is a judicial review in the context of immigration law?
A judicial review is a court process whereby a decision taken by the Home Office is judicially examined by a Judge of the Upper Tribunal or the High Court, to ascertain whether that decision was lawfully made.
It is described as a discretionary remedy of ‘last resort’. This means a person should only commence judicial review proceedings if they have exhausted all other remedies available to them, including exercising their statutory appeal rights and/or applied for and have received a decision refusing an administrative review application.
Who can issue judicial review proceedings?
A person can only issue judicial review proceedings if the relevant decision has affected him or her personally. This is known as the ‘sufficient interest’ test.
Types of decision that can be judicially reviewed
The vast majority of immigration judicial reviews are issued at the Upper Tribunal.
The following is a non-exhaustive list of the types of Home Office decisions that can be judicially reviewed at the Upper Tribunal;
- Decisions to refuse a fresh claim for asylum or human rights without a right of appeal under paragraph 353 of the Immigration Rules;
- Decisions to certify an asylum or human rights claim under section 94(1) of the Nationality, Immigration and Asylum Act 2002, so that the appeal can only be exercised once the Applicant has left the UK. In these circumstances the availability of an out of country right of appeal cannot be said to be an adequate alternative remedy;
- Decisions to certify an asylum or human rights claim under section 96 of the Nationality, Immigration and Asylum Act 2002. In such refusals a person is not afforded any right of appeal;
- Decisions to refuse an applicant indefinite leave to remain without a right of appeal;
- Decisions to refuse leave to remain for Adult dependants without a right of appeal;
- Decisions to refuse Entry Clearance to the UK on a visit visa;
- Decisions to remove someone from the United Kingdom;
- Decisions to refuse an application under the Points Based System; and
- Decisions to refuse to grant a residence card to extended family members of EU nationals under the EEA regulations.
The Upper Tribunal does not have jurisdiction to hear certain judicial review claims and these can only be issued at the High Court. Such claims include challenges to the lawfulness of Immigration detention or to decisions of the Upper Tribunal made on appeal from the First Tier Tribunal.
Pursuant to Part 54.5 of the Civil Procedure Rules, a judicial review claim form must be filed promptly and, in any event, not later than 3 months after the grounds to make the claim first arose.
Grounds for judicial review
A decision of the Home Office can be judicially reviewed on the following grounds;
- Illegality – the decision is illegal on the ground that it breaches a person’s rights under the European Convention on Human rights and that it is not in accordance with the law.
- Irrational – the decision is irrational if for example the decision maker has taken into account an irrelevant consideration that is not relevant to the facts of the case or the decision is so unreasonable that no reasonable person making the same decision could have come to the same conclusion; and
- Procedurally Unfair – a decision is unfair on this ground if for example an Applicant has not been afforded an opportunity to make representations on his case, for example there has been an allegation of deception, but relevant documents have not been disclosed to him or the decision maker has failed to apply a policy of the Home Office that is relevant to the case.
Pre Judicial Review
Pre-Action Protocol letter (PAP letter):
The judicial review claim is often preceded by correspondence, in which the person affected by the decision tries to persuade the decision maker to change the decision or not to make it.
This is the pre-action stage and should provide the parties with opportunities to resolve the dispute without resorting to judicial review.
The Home Office will usually have 14 days to respond to the pre-action protocol letter.
It is at this stage the Home Office review the decision. One of the possible outcomes is that the Home Office can agree to reconsider the decision under challenge.
If the Home Office maintain the decision or do not respond altogether to the pre-action protocol letter, then judicial review proceedings can be issued.
It is important that the pre-action protocol process is complied as this could avoid the need for judicial review proceedings to be issued. Furthermore, it is possible that the Upper Tribunal or the High Court can make a costs order against you if you fail to comply with pre-action protocol process, even if you are ultimately successful in your judicial review application.
Procedure for judicial review
Service of claim form
If the matter cannot be settled at the pre-action stage, an Applicant can then formally file and serve a judicial review claim form accompanied with grounds for judicial and supporting evidence at the Upper Tribunal or the High Court.
Once the form is sealed by the relevant court, it is the responsibility of the Applicant or his legal representatives to formally serve the judicial review bundle upon the Home Office.
The Home Office then officially instruct the Government Legal Department, who in turn allocate the case to a caseworker to progress further.
The allocated caseworker at the Government Legal Department will then review the papers and then, subject to instructions will proceed to file an Acknowledgment of Service to either defend the matter or to concede e.g. by offering to reconsider the decision under challenge.
The time period for filing the Acknowledgment of Service is 21 days, although this can be extended with the Courts permission.
If the matter is defended, the papers will go before a Judge who will in the first instance decide as to whether the claim is arguable. If the Judge is of the view that the matter is arguable he or she will then officially grant permission for judicial review.
If permission is refused, the Applicant will usually have a period of 9 days from the date the order refusing permission is served upon him to request the matter to be heard at an Oral Permission Hearing where a different Judge will hear oral submissions from both parties to decide whether permission should be granted.
It is however important to note that a Judge can refuse permission on the basis that a claim is totally without merit (meaning “bound to fail”). If it does so, an Applicant will lose the right to renew an application to bring a claim for judicial review at an oral hearing. In this scenario, the Applicant can make a direct application to the Court of Appeal on a question of law only.
In the event permission is granted, the Court will make an order to this effect and will list directions for the parties to comply with. The Home Office will then decide if it intends to continue to defend the claim or if the claim could be settled.
If they want to defend the claim, the Home Office will have a period of 35 days from the day the order granting permission is served to file any further grounds of defence. The matter will then be listed for a substantive hearing whereby both parties can make further arguments. This is the point the matter is fully determined by the Court.
Once a decision has been made, the losing party can make a further application to have the decision reviewed by the Court of Appeal on appeal. Such an appeal can be pursued only if there has been an error of law.
A judicial review claim can be settled at any stage, by agreement between the claimant and the defendant (the public authority).
It is very important to note that a Judge cannot substitute his own decision. This means that a Judge cannot remake the decision for the Home Office. The Judge is simply concerned with whether the decision was lawfully made.
The following is a list of remedies a Judge may make;
- A quashing order requiring the Home Office to remake the decision;
- A mandatory order requiring the Home Office to act in accordance with the law;
- A prohibiting order preventing the Home Office from taking an unlawful decision or an action which has yet to be taken;
- An injunction. This is a temporary order which prevents the Home Office from doing something whilst a decision is made. This for example may be an injunction, preventing someone’s removal from the UK, whilst their judicial review is still pending.
- An order for costs for the winning party
For more information on what we can do for you, please call DV Solicitors on 01234 350 244 or email Khurshid Ali at firstname.lastname@example.org