Judicial Review is a type of court proceeding that allows you to challenge the lawfulness of a decision, an action, or omission of a public department, such as the Home Office or the Immigration Court (Upper Tier Tribunal).
When considering a Judicial Review application, a judge will focus on the way a decision was been made, rather than whether or not that decision was rights. Thus, Judicial Reviews are not concerned with the actual decision challenged, but rather process used to reach that decision and whether or not it was in accordance with procedure and / or law.
The court will not substitute a decision with what it considers to be correct.
Types of events you may consider challenging by Judicially Review:
A decision to refuse your further submissions as amounting to a ‘fresh claim’ and you have no rights of appeal;
1. A failure to act, such as a delay in reaching a decision on your case;
2. Challenging Removal Directions set for you, where you believe that it infringes your rights (you should have a very strong reason why, if you have an appeal or application pending you should make this clear. You should also apply for an injunction seeking to stop the removal);
3. Where your detention is unlawful;
4. Immigration decision where there are no rights of appeal;
5. A decision to certify your case as ‘clearly unfounded’.
You must apply for Judicial Review within 3 months of the decision you are seeking to challenge.
Which Court Will Hear My Judicial Review Application?
The majority of Immigration Judicial Reviews are heard in the Immigration & Asylum Chamber Upper Tier Tribunal. The exceptions are listed below and should be brought before the High Court. If you are challenging:-
1. The validity of legislation or the Immigration Rules
2. The lawfulness of detention
4. Accommodation centres and asylum support (NASS)
5. Previous Upper Tribunal decisions
6. Special Immigration Appeals Commission decisions
7. Statements of incompatibility under s 4 of the Human Rights Act 1998.
Reasons for Applying for Judicial Review
The reasons for applying for Judicial Review are also known as grounds, these can be:-
1. Illegality – This is where the public body, such as the Home Office has failed to either follow the law properly, or acted outside of their powers when making the decision, action or omission. to act will be “illegal”.
2. Irrationality – The decision, action or omission is so irrational and unreasonable that a reasonable public body could never have come to the same decision.
3. Procedurally Improper – A failure of the public body to follow the required legal procedure.
4. Legitimate Expectation – When a public body acts fails to respond in a way they are expected to. This applies to fairness and reasonabless.
Before commencing your application for Judicial Review, you should write a letter called a ‘Pre-action Protocol letter’ or ‘letter of action’ to the Home Office setting out your case and asking the Home Office to review their decision. You should also state that you will be apply for Judicial Review should the matter not be resolved at this stage.
What to include in the Pre-aciton Protocol letter:-
- Details of the decision, act or omission you are challenging,
- A summary of the facts of your case. You should also contain the details of any information that you are seeking and an explanation of why this is relevant.
- The legal basis for the claim. Mention why they have acted unlawfully, unfairly, irrationally or not in accordance with procedure.
- Are there any interested parties?
- Give a time by which you expect a decision, this is usually 14 days. You should state the exact date for example “I await a response from you no later than [give date].
The purpose of the pre-action protocol letter is to give the Home Office a chance to amend their decision and prevent Judicial Review being brought at all, where possible.
If you do not receive a satisfactory response to your Pre-action protocol letter and wish to bring a Judicial Review case you must lodge your application at the court within the three months of the decision.
The initial stage is known as ‘permission’ to apply for Judicial Review, this is where the court will consider whether or not your case contains an arguable error of law.
The Process of Applying for Permission
Judicial Review applications can be very costly, complicated and confusing for many people representing themselves and we strongly suggest that you get legal advice before commencing a Judicial Review application.
The appropriate form required to be complete depends on whether your case is going to the High Court or Asylum Immigration Chambers (Upper Tier Tribunal). As mentioned above, most Immigration Judicial Reviews should be lodged at the Upper Tier Tribunal usually using form T480, click here to access the form and guidance.
You must set out the reasons for your claim, known as ‘grounds’ and include all evidence you wish to rely on, including the decision you are to challenging. Number your papers and include an index for the bundle you have created. You should make two copies of your bundle, so that you have the original and two copies to be served at the Court.
Once your completed application is received by the Upper Tier Tribunal (or High Court if relevant) the application is stamped by the court as received. While the Upper Tier Tribunal does not formally require that you serve your papers on the GLD (solicitors for the Home Office, the papers from the court will direct you to and it is always advisable to serve the papers on the GLD and any other interested parties.
If your application for Permission is Granted
If you are granted permission, you will be required to pay the court fee for proceeding with the judicial review within 7 days.
The Home Office must file and serve its detailed grounds, for contesting the Judicial Review claim, together with evidence they are relying on within 35 days of the order granting permission.
You should also receive information about what you need to submit in advance of your hearing. If you want to rely on additional grounds during your judicial review hearing, you need to give written notice to the Upper Tier Tribunal and the Home Office no later than 7 working days before the date of the hearing.
You also need to serve a bundle of the required documents on the Upper Tier Tribunal and the Home Office, and your skeleton argument. You are not required to do this if you are representing yourself. If you are submitting a skeleton argument you should include your legal points, a chronology of events in your case, a list of essential documents for advanced reading of the court and how long you think your hearing may take.
A judge will consider the claim in detail. This can be several months from when the claim was first issued, although this will depend on the urgency of the case.
At the end of the hearing the judge can give a decision the day, but that is unusual, usually a decision will be given at a later date and will be sent to you by post.
If your application for Permission is Refused
You can request that the court reconsider their decision to refuse your application for judicial review at an oral hearing. You must pay the court fee of £350.
An application for an oral hearing is made on be made on the Notice of Renewal, Form 86b, (a copy of which will be sent to you at the same time as the judge’s decision if you are eligible to renew) and must be filed within 7 days after service of the notification of the judge’s decision upon you
You may appear at the hearing yourself or you can ask someone to speak on your behalf for you.
As of 19th June 2018,
Judicial Review application form£154.00.
If you are granted permission and wish to proceed with your Judicial Review claim, you are required to pay £770.00 within 7 days.
If you are refused permission and wish to have that decision reconsidered at a hearing, you are required to pay £385.00.
Aside from the court fees, the general rule is that the loser pays the winners cost. Judicial Review applications can sometimes be costly and it is always advisable to seek legal representation.