Judicial Review Can Help When All Else Fails with UK Immigration Matters
Judicial review is an essential and powerful weapon in an immigration solicitor’s toolbox. This is because, since 2013, the right of appeal under the Points-Based System has not existed unless a human rights ground applies. As such, the only redress if a visa, leave to remain or Sponsor Licence has been refused (or revoked in the case of the latter), is to apply for administrative Review or judicial review.
What Is Judicial Review?
A judicial review is a court challenge to the decision of a public body. Judicial reviews are conducted to ensure that every government office is following the law and not acting outside their powers. In the case of immigration issues, it is a court challenge lodged against the Home Office. Before a judicial review can be applied for, all other legal avenues must have been exhausted.
When Can I Request A Judicial Review?
The circumstances in which a judicial review can be applied for are limited. You will need to provide strong evidence that the Home Office’s decision regarding your immigration matter was:
- Illegal – that is the immigration official acted outside of their powers or failed to correctly follow the law that applied to your matter.
- Irrational – the decision was so unreasonable that no reasonable person could have made it.
- Disproportionate – the immigration official’s decision was out of proportion to the act or harm which the law was trying to prevent.
- Procedurally unfair – the procedure in which the decision was made must be in accordance with the rules of natural justice and free from bias.
Key Points Regarding Judicial Review:
- Judicial review is a very specialised and complex procedure.
- A judicial review requires an expert solicitor who can navigate the complexities of both the law and of the rules governing this activity.
- To proceed, you must be one who is directly impacted by the outcome
- It requires speedy action on your part – officially it can only be used within three months of the decision you are challenging. However, often you expect an even swifter response, which can be difficult given the amount of evidence that is often required to prove a case for judicial review.
- The actual case procedures may take a year or more. A judicial review is not a quick fix.
- A judicial review requires an extremely robust case. Those requesting a judicial review who have themselves caused delays or errors in the process are not advised to pursue this avenue.
Action Steps For A Judicial Review Against The Home Office
1. The first step towards launching a judicial review is a formal letter sent to the Home Office stating your case, your evidence, and your request. If you feel a judicial review may be warranted, have your solicitor prepare this letter for you. The letter will include a time frame for the requested reply – usually 14 days.
2. If the issue is not resolved satisfactorily within the specified time frame, you may apply for permission to conduct a judicial review claim against the Home Office. This letter is a critical step and includes all arguments, witness statements, and documentation in your defence based on the law. Again, an immigration solicitor is essential to this process. The papers are delivered to both the Administrative Court and the Home Office.
3. The Home Office has 14 days to file their response.
4. A judge will review all of the information before deciding whether to grant the request for a judicial review.
5. If the judge agrees to the hearing, the Home Office has 35 days to prepare its full defence.
6. The judicial review hearing is a formal procedure. It is unlikely you will be involved, although you can attend. Your solicitor will present your case and lay out the evidence.
7. The judge usually gives their judgment a few weeks after the hearing, although in complex cases, the timeframe may be considerably longer.
8. Any decision handed down carries the right to request an appeal from either party to the Court of Appeal.
9. It is common for the loser of the review to be ordered to repay the costs of the review to the successful party.
What Are The Remedies For Judicial Review?
The following remedies may be awarded for a successful judicial review:
- A mandatory order, which requires the defendant to do something.
- a prohibiting order, which prevents the defendant from doing something
- a quashing order, which invalidates the Home Office’s original decision and puts both parties back in the position they were before the decision was made.
- an injunction or stay, which is usually an interim remedy preventing the public body from acting on the decision to challenge
- a declaration
- damages, restitution or the recovery of a sum due, but not as the sole remedy and only if damages would have been available in a private law claim—in such cases the court may allow the claim for judicial review to include a claim for damages to avoid the need to bring additional proceedings (which would cost both the court and claimants additional time and money).
Where Can I Find Help?
A Y & J Solicitors have a wealth of experience in bringing judicial review proceedings for both business and individual immigration clients. We have a strong track record of success and work with experienced, talented barristers to ensure the most persuasive case is presented in court.
However, in most situations, judicial review matters that are handled by us are settled well before the court date, saving clients time, stress and money. No matter what type of immigration matter you have, if a judicial review is an option, you can be confident we will explore it.
In the rare case that an application for judicial review is denied, our team will work with you to explore other methods to resolve your immigration matter quickly and efficiently. This can include reapplying for your visa, bringing an appeal on human rights grounds and/or negotiation with the Home Office.
Disclaimer: No material/information provided on this website should be construed as legal advice. Readers should seek an appropriate professional advice for their immigration matters.