Judicial review is the means by which an individual can seek redress against public bodies (such as the Home Office or the relevant Immigration Tribunal) where there are no appeal rights or any such rights have been exhausted. An applicant must have good legal grounds to pursue such an action and adhere to strict court rules and procedures. Failure to do so can result in denial of the application, the case being struck out and perhaps worse negative cost implications. Specialist legal advice should be sought if you are at this stage.
A judicial review allows a judge to review a decision made or action taken by a public body (such as UKVI). In more precise terms (and in the context of immigration law), it is the legal procedure which allows judges of the Administrative Division of the High Court, and the Upper Tribunal (Immigration and Asylum Chamber) to exercise jurisdiction over the lawfulness of any acts or omissions of UKVI, and a supervisory jurisdiction over inferior courts and tribunals. It is important to understand that a judicial review is an option of last resort and will only ever be undertaken once all other remedies have been exhausted.
A judicial review can be brought only under very specific grounds, including where has been:
A breach of the Human Rights Act, or;
A breach of EU law
Step 1 – An initial letter to UKVI
The first stage is to drafting a letter to UKVI, outlining where the breach occurred, and seek to have the decision overturned, without the need for any further action. This is often effective and can save a great deal of unnecessary time taking further legal measures
The next step will be to progress to the pre-action protocol stage. Before doing so, you must carefully consider the merits of your case and at KB Law Solicitors, we can assist you throughout the process to ensure that your Judicial Review process is dealt in a timely and cost effective manner. We will advise you of the merits of a successful Judicial Review applications including the potential risks that you may need to pay costs to UKVI in such proceedings if you fail.
Step 2 – Pre-Action Protocol
The Pre-Action Protocol is a series of best practice procedures designed to be undertaken prior to bringing a claim for judicial review. The Protocol is aimed at ensuring parties exchange information and tries to encourage an early settlement through alternative dispute resolution methods such as mediation and/or negotiation.
As part of the Pre-Action Protocol, a letter setting out the details of the immigration decision being challenged and the date the refusal took place and points of challenge is sent to UKVI, that is also called a ‘Letter Before Claim’.
The Home Office should reply to the Letter Before Claim within 21 days. Failure to do so could result in court sanctions.
Often the receipt of a Letter Before Claim is enough to encourage the Home Office to review their original conclusion and provide a positive decision. This saves our clients time, money and stress, allowing them to continue with their lives.
If the decision to refuse is maintained by the UKVI or the Pre Action Protocol letter is not responded within 21 days, you can make an application to the Upper Tribunal for permission to apply for Judicial Review. Such application is made on papers and the court will refuse and grant permission on papers and without a court hearing. The majority of the applications for permission to apply for Judicial Review are resolved by consent at this stage after negotiations between the Treasury Solicitors (the solicitors representing the Home Office, UKVI) and the claimant's solicitors.
If permission is refused by the Upper Tribunal, the claimant can then make an application for renewal of permission for Judicial Review within 7 working days for the permission application to be decided after a court hearing. The court will list the matter for hearing and the permission will be granted or refused after the court hearing.
If the permission is granted either at the stage of application on papers or after the hearing in the court, the Judicial Review will then be listed for substantive hearing whereby the Upper Tribunal will decide whether or not the decision of the Home Office, UKVI is in accordance with the relevant laws.
We also undertake work that is publicly funded by the Legal Aid Agency at all levels for immigration matters that are in scope for Legal Aid assistance, from initial application, through to appeals to the First-tier Tribunal, Upper Tribunal and the Higher Courts and applications for Judicial Review.
If you wish to be considered for legal aid please ask us and we will tell you if it is available based on your circumstances.
If you wish to obtain advice or legal assistance in respect of your immigration matter, we offer an affordable and confidential consultation at a fixed fee with and experienced immigration lawyer where we can answer your questions and explain the processes that will apply. Your consultation fees will be set off against your instructions to the firm if you go on to instruct us.
For more information or to book an initial consultation, please contact us.