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Judicial Review

Judicial Review

A judicial review is a form of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body. In asylum and immigration cases, that public body will usually be the Home Office.

A judicial review can challenge the way a decision has been made, if you believe it was illegal, irrational, or unfair. It is not really about whether the decision was ‘right’, but whether the law has been correctly applied and the right procedures have been followed.

Since April 2015, an increasing number of applicants have been denied a right of appeal from Points-Based immigration decisions to Adult Dependant, Spouse Visas, ILR applicants, and various visitor visas applicants. Unless an application raises a Human Rights or Refugee Convention ground, applicants have been consistently refused a right of appeal. The only avenue available for immigration clients in these circumstances, is to have a decision reviewed and successfully challenged by administrative review and importantly by applying for Judicial Review of the decision of the Home Office.

In a successful judicial review, the court will not substitute what it thinks is the ‘correct’ decision. If you are successful in your judicial review, the case will normally go back to the Home Office, or the court found to have made an error of law. They may be able to make the same decision again, but this time make the decision following the proper process or considering all relevant case law or evidence reasonably.

Since 2013, most judicial reviews in asylum and immigration cases in England and Wales are heard in the Upper Tribunal.

Previously, most judicial reviews were heard in the High Court. Some immigration and asylum judicial reviews in England and Wales are still heard in the High Court. These include judicial reviews challenging the lawfulness of detention and challenges to decisions of the Upper Tribunal.

If you have a judicial review hearing, the documents that the court sends you or your lawyer will tell you which court your judicial review is being heard in.

In Scotland, judicial reviews are heard in the Outer House of the Court of Session. In Northern Ireland, they are heard at the High Court in Belfast

Grounds for Judicial Review of a public body’s decision (Home Office)

Judicial Review can only be brought on specific grounds.  These include:

Illegality

The illegality ground can be used if the decision maker made an error in law or acted outside the powers conferred to them by the legislature.

Unreasonableness

This is one of the more difficult grounds on which to bring a Judicial Review challenge.  The case that provides the definition is Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223.  To be unreasonable, the decision must be “so unreasonable that no reasonable person acting reasonably could have made it”.

Fairness

Fairness is a frequent ground for challenging an immigration decision on Judicial Review grounds.  An example of a successful challenge can be found in R (Forrester) v SSHD [2008] EWHC 2307 (Admin).  This case concerned an application for leave to remain as a spouse. The in-time application to remain was rejected as invalid because the cheque accompanying the application was not honoured.

Consequently, the claimant was an overstayer when she applied for permission to remain with her husband. The application was refused on the sole ground that she lacked leave to remain.

Although the decision was in accordance with the immigration Rules. Justice Sullivan was scathing:

‘This is a classic example of a thoroughly unreasonable and disproportionate, inflexible, application of a policy, without the slightest regard for the facts of the case, or indeed elementary common sense and humanity. Such an approach diminishes, rather than encourages, respect for the policy in question.’

Another example of unfairness was highlighted in R (London Reading College) v SSHD [2010] EWHC 2561 (Admin), [2010] All ER (D) 154 (Oct).  Here, a Tier 4 sponsor had had its Sponsor License revoked.  The court considered whether the UK Border Agency UKBA (now UK Visa and immigration) had given the college sufficient information to enable it to address the concerns. According to the judge:

‘That was necessary both as a matter of fairness but also to ensure that the Defendants were in a position to take a rational decision, a decision based on a proper appreciation of all the facts.’

The UKBA, concluded the court had made its decision in breach of the requirements of procedural fairness and the decision was quashed.

Cases involving children and other vulnerable people have recently been held to require additional procedures to be followed see AM (Afghanistan) v Secretary of State for the Home Department (2017).

Proportionality is also a developing ground for making a Judicial Review challenge.  In Pham v Secretary of State for the Home Department [2015] the concept was discussed extensively.  The case involved the stripping of the appellant’s British Citizenship and deporting them to Vietnam after it was alleged he participated in terrorist training in Yemen.

Lord Mance endorsed proportionality as a ground for Judicial Review stating:

‘Removal of British Citizenship under the power provided by section 40(2) of the British Nationality Act 1981 is, on any view, a radical step, particularly if the person affected has little real attachment to the country of any other nationality that he possesses and is unlikely to be able to return there. A correspondingly strict standard of Judicial Review must apply to any exercise of the power contained in section 40(2), and the tool of proportionality is one which would, in my view and for the reasons explained in Kennedy …, be both available and valuable for the purposes of such a review’.

When to claim for Judicial Review

Home Office decisions with no right of appeal

Time limits

An application for judicial review should be made as soon as is reasonably possible, and no later than 3 months after the decision that you are trying to challenge was made. In asylum and immigration cases, this decision will usually be the one made by the Home Office.

Pre-action stage

In a Judicial Review, we would write to the Home Office informing them of this, giving them chance to withdraw their decision or correct an error without having to go the point of a judicial review. This is called the “pre-action” stage. The letter to the Home Office is called a “pre-action letter” or “letter before claim”.

A carefully drafted letter identifying the legal issue and the outcome sought should be sent to the Home Office at the earliest opportunity. This can often produce a speedy resolution to your matter. The pre-action stage does not affect the 3 month time limit for applying for a judicial review.

Read the “Pre-Action Protocol for Judicial Review” on the Ministry of Justice website for details of what should be included in this letter and what to do with it.

You are unlikely to receive any response to this letter (but it’s still an important stage of the process, and may be used against you if you fail to do it). If you do not receive a response with the time limit, or the response is not satisfactory, and you want to continue to apply for a judicial review, you can move on to the permission stage.

Remedies available under Judicial Review

In any case more than one remedy can be applied for; however, the granting of all remedies is entirely at the Court’s discretion.

Damages are only available in very limited circumstances in judicial review cases.  To receive a damages award, there must be either:

To find out more about the above, you are welcome to call us on 020 8566 5522 for a preliminary informal discussion of your matter. We may ask you to send us further information about your matter either by fax on 020 8566 5511 or by email at enquiries@hudsonlegal.co.uk so that we may get a fuller picture of your circumstances.

After this initial discussion, you may wish to book an appointment for a full consultation via SKYPE or ideally at our offices located at 7 Central Chambers, The Broadway, Ealing, W5 2NR. We are directly opposite Ealing Broadway tube and railway station.

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