Table Of Contents:
- What is a Judicial Review
- Process to Apply for a UK Judicial Review
- Guidance Related to a UK Judicial Review
- Important for You
UK judicial review is the legal process through which individuals or organisations can challenge the lawfulness of decisions made by public bodies, including the Home Office and the First-tier tribunal. In immigration matters, you usually seek judicial reviews from the Upper Tribunal (Immigration and Asylum Chamber) where you
believe the Home Office has made an unfair or unlawful refusal decision.
Importantly, you cannot simply apply for judicial reviews to appeal against a decision of the Home Office or First-tier tribunal because it is not in your favour. Instead, judicial review is a mechanism to challenge the decision if you believe it has not been made in accordance with the immigration law and established legal processes and principles. This means that if the upper tribunal finds a decision as unlawful, it can order the matter to be reconsidered. However, it does not mean that you will be granted the outcome in your automatically in your favour.
What is a Judicial Review?
Judicial Review is a legal mechanism to challenge an immigration decision from the Home Office or First-tier tribunal if you believe the decision is unlawful, illegal, irrational or unreasonable or breaches human rights.
UK judicial review is a last resort when you have no other right of appeal or administrative review is available. It involves a court process, a time-consuming and costly process. Therefore, if you are not sure whether to apply for a judicial review, you should seek independent legal advice.
Judicial reviews offer limited scope, since they are restricted to the issue of ‘lawfulness’ of the decision of the Home Office. This also means you generally cannot submit new evidence as part of the review process.
Process to Apply for a UK Judicial Review?
The judicial review process is a complex and time-consuming process. You can apply for it yourself or through a representative. In either case, you should know the process of applying for a judicial review.
In this article, we are going to discuss the steps involved in a judicial review to the upper tribunal.
1. Send PAP (Pre-action Protocol) Letter
Before applying for a UK Judicial Review, you will need to send a PAP letter, which is a legal letter (also known
as ‘letter before claim) to the Home Office informing them that you are going to claim a judicial review.
A Pre-Action Protocol letter is a letter that you need to send to the public body (in this case, the Home Office) whose decision you wish to challenge at the Upper Tribunal.
The letter should highlight the key matters you want to be raised, the legal grounds your claim is based upon, and demonstrate how the decision of the Home Office to refuse your immigration or human rights claim is unlawful. The letter should include the date and details of the Home Office decision, the act or omission you want to challenge, a clearly written summary of the facts, and the legal basis for the judicial review claim.
2. Receiving Permission
After sending the PAP letter, you wait for a response from the Home Office. If the Home Office does not give you a favourable response or gives you no response at all, you can apply directly to the Upper Tribunal seeking permission to apply for Judicial Review. The tribunal, based on your documents, will consider whether your case has legal merit. A judge at the tribunal reviews your application and then either allows you permission for a full hearing or denies your application.
If the judge gives you permission, the case moves to the next stage.
On the other hand, the tribunal’s judge may deny you permission for a UK judicial review if they believe the case is weak, has no legal grounds, or that other legal remedies should have been applied to deal with the case. In such a situation, you can request an oral hearing to argue why your case should be allowed to proceed.
3. Full Hearing
If you receive permission from the upper tribunal, a full UK Judicial Review hearing will take place. A judge at the tribunal will examine whether the Home Office followed the correct legal process in their decision- making and whether their decision was arrived at after assessing your application fairly and lawfully. The court will not reassess the original evidence but will focus on whether the decision-making process was legal.
Your legal representative and the Home Office’s legal team will present arguments. The judge will then decide whether your challenge against the Home Office decision is justified.
4. Outcome
If your challenge is successful, the tribunal may quash the Home Office’s original decision. This means the Home Office must reconsider your application, and this time, they must use the correct legal process. The judge may also order the Home Office to take specific action, or a prohibiting order, which will prevent the Home Office from assessing your case unlawfully in a similar way in the future.
However, you should note that the court does not have the power to overturn the Home Office decision and approve a visa application directly.
If your judicial review is unsuccessful, the Home Office’s original decision will remain in place. You may also have to pay legal costs for both parties. However, in some cases, depending on the legal grounds of the case, you may request a reconsideration or appeal the decision.
Where the Home Office agrees to review their decision, a UK Judicial Review can also result in a settlement, before the case reaches a full hearing.
Guidance Related to a UK Judicial Review
Apart from the process to apply for a judicial review, you should also have some crucial guidance about the facts related to it. You should know the fees, whether you can ask for an urgent consideration, what if your case is ‘struck out’, and your alternative options.
1. Fees
A judicial review application goes through several stages. The first stage in this process is the initial application (UTIAC1). For which the fee is £174.
Depending on whether your initial application for permission to judicial review is successful and what happens next, you will need to pay additional fees. If permission is granted by the tribunal, you will need to pay the fee of £874 for the final hearing.
You may have to pay significantly higher costs if the case is taken to the High Court. You may be eligible to seek help with fees.
2. Asking for Urgent Consideration
You may apply for an urgent consideration of your UK judicial review application in exceptional circumstances. The tribunal usually reviews the urgent applications the day they receive them.
An exceptional circumstance may apply if:
- You are, in the immediate future, going to be removed from the UK, or
- You need to be in the UK soon.
You may decide whether to apply for urgent consideration based on the date you are due to be removed from the UK.
3. Your Case being ‘Struck Out’
Once the tribunal receives your claim, they will send you confirmation of it. You will be provided with ‘sealed copies’ of your application.
You must send or hand the sealed copies of the application to all respondents (the Home Office or First-tier tribunal whose conduct or decision you seek to challenge as being unlawful) in the case within 9 calendar days of the date on the correspondence. If you fail to do so, your case could be ‘struck out’, which means that your claim is ended.
If you want to proceed with your case that has been ‘struck out’, you will need to apply to a judge to reinstate it. A judge will consider your application to reinstate your case and decide whether to allow this.
4. Alternative Options
You should choose to apply for a UK Judicial Review as a last resort when you have no other appeal or review option available. You should explore all possible alternatives, including an Administrative Review, reapplying, or resolving the issue through legal representation, before you commit to the judicial review process.
Important for You
UK judicial review is a complex, time-consuming, and costly process with no guarantee of the decision coming in your favour. Moreover, the upper tribunal where you challenge the decision of the Home Office or First-tier tribunal does not have the power to overturn the original decision and hence grant you the visa.
You should also know that seeking legal representation can also cost you a huge sum. This does not mean that you should not consider applying for a judicial review at all. But you should consider it as the last option. Also, you should discuss with a legal expert before you choose to go ahead with a UK judicial review process.
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