Immigration Judicial Review

Judicial Review is a legal process which enables an individual to challenge immigration decisions made by public bodies, including the Home Office and the immigration courts. It ensures immigration-related decisions have:

      • followed due process,
      • are fair, and 
      • to ensure the rule of law is upheld.

The review procedure is overseen by the senior independent judges of the High Court and the Upper Tier Tribunal in its capacity as a High Court.

It is most commonly used in in the immigration field where individuals have been:

      • have otherwise exhausted their statutory appeal rights in relation to their visa or British nationality application
      • denied a protection claim, and
      • been detained are due to be removed. 

It is important to bear in mind that the higher courts are looking for errors in the decision making process - they are not there to rehear the facts of the case again.

Therefore, not only are the grounds for seeking Judicial Review narrow (as expanded upon below), but relatively few cases succeed. The Judicial Review process is expensive, takes time and, particularly for the lay person, can be difficult to follow.

The court can award "costs" which means that the losing party may be requested to make a payment for the winning party's legal costs. In some very limited cases, where the court believes there has been an abuse of the rules, a wasted costs order can be imposed. The amounts of cost orders can be small or punitive depending on the circumstances of the case. This is to designed both to deter unmeritorious claims being filed but also to ensure legal procedures are followed.

As a firm of solicitors, RLegal have full rights to represent clients with applications for Judicial Review. Our lawyers have represented clients with Judicial Review cases for decades and can therefore provide legal advice on the merits of a claim and, if necessary, navigate you through the somewhat complex Judicial Review Process.

Judicial Review Grounds

The Judicial Review Grounds are limited to the following:

      • illegality - the decision was taken outside the applicable law
      • irrationality - the decision was not reasonable
      • failed to follow a procedure
      • breach of a legitimate expectation - where one has been created
      • breach of human rights.

The purpose of the Judicial Review process is not to re-present the facts of the case but to clearly and succiently identify where one of the above has arisen and to set out the legal reasons or explanations with evidence as to why.

Identifying a potential claim for Judicial Review is not straightforward. Even when a ground is identified a clear argument must be put forward explaining this with supporting evidence and citations from previous cases. This can be challenging for a lawyer let alone the lay person.

Judicial Review in Immigration cases

In immigration cases Judicial Reviews are usually initiated against a Home Office decision such as:

      • where the only recourse was Administrative Review and this has been unsuccessful
      • an individual is served with a negative immigration decision whilst in detention
      • the Home Office certify a case as 'unfounded'
      • one taken by an immigration court.

Lodging an application for Judicial Review does not confer leave or extend exisiting permission through S 3 (C) of the Immigration Act 1971 and means an applicant in most cases will have no visa and is unable to work, study or travel whils the Judicial Review process is pending.

Applying for Judicial Review

In Immigration cases, Judicial Review applications are normally made to the Upper Tribunal (Immigration & Asylum Chamber). 

If challenging a decision by the Home Office, it is important to follow pre-action protocols and serve what is known used to be known as a 'letter before action', now a Pre-Action Protocol, outlining the basis for challenging the decision with supporting documentation in a succinct way.

The PAP can be made through a letter or a suggested claim form provided by the Home Office. The Home Office have a duty to respond to a letter before action usually within 14 days but can be extended. A well presented Pre Action Protocol can result in the Home Office conceding issues and reaching a settlement. A judge will look at the immigration PAP carefully as it is central to identifying the key issues from the outset.

An application for Judicial Review UK should only be contemplated where the merits are in your favour. Lodging an application for Judicial Review is subject to specified rules which must be followed. A failure to follow them can result in penalties which can impact the case.

In some cases where, for example, a client is in detention and removal is imminent, an application for Judicial Review may have to be submitted through an emergency procedure with a request for an injunction to prevent a public body from carrying out the action.

This will involve a verbal request to a Judge who may provide directions and time limits for actions to be carried for the Order to be effective. These must be followed otherwise penalties can follow.

An initial application for Judicial Review will usually initially be dealt with by a single judge, based on the papers and with no lawyers present.

If this initial application is unsuccessful, the application for judicial review can be renewed so the case can be heard in person before a judge.

If the judge considers that that a reasonable case has been made out, the matter will proceed to a substantive hearing where it will heard in court by a judge with lawyers present to argue the case verbally. In most instances, if the applicant is given permission to judicially review the case, the Home Office will reconsider its position to avoid unwanted costs.

Time limit in Judicial Review cases

The time limit to lodge an application for Judicial Review in the UK is 3 months from the date of decision. It is important to note the date and ensure the application is filed within this period. Although possible, an applicant will need to request permission for filing late and provide good grounds for doing so.

Expert assistance with Judicial Review cases

It is important at the outset to examine a judicial review case in detail to identify the issues, set out in clear terms what the dispute is and provide correct and relevant evidence in your grounds including any legal precedents. Applications which are poorly presented or are confusing are unlikely to progress and can lead to wasted cost orders where the party bringing the action may be liable not only for their costs but that of the opposing party. Applicant's should be mindful of the 3 month time limit to file an action for Judicial Review. If you are looking for expert assistance you can contact us and a member of the team experienced in such cases can advise as to the merits of your case and of course provide legal representation.

About the author

Evan Remedios is a solicitor with over three decades experience including those involving Judicial Review applications through the emergency procedure involving complicated legal arguments in immigration cases.