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Protocol Letter Before Claim for Judicial Review

Pre-Action Protocol Letter before Claim for Judicial Review in Immigration

Jun 07, 2018
Last Updated on May 30, 2024

Pre-Action Protocol Letter before Claim needs to be sent to the Home Office prior to applying for Judicial Review. Judicial Review may be the only option available to you to get the justice if all other avenues such as Administrative Review and appeals have been exhausted. For some applications like Visitor Visa, Short Term Student Visa, there are no Administrative Review rights available where the only way to challenge the UKVI decision is Judicial Review.

Your solicitor is required to undertake extensive preparation prior to making an application for Judicial Review. The procedure for this is known as the Pre-Action Protocol or PAP. Poor preparation at PAP stage may affect your Judicial Review outcome so it is highly recommended that there should be strong legal representation while submitting the Pre-Action Protocol Letter to the Home Office.

When is the Pre-Action Protocol (PAP) Used?

Judicial Review is the process whereby the judges of the Administrative Division of the High Court, and the Upper Tribunal (Immigration and Asylum Chamber) exercise jurisdiction over the lawfulness of acts or omissions of public bodies such as the Home Office.

Judicial Review is often the only remedy available for migrants, their family members, and companies who have had their Tier 2 or 5 Sponsor Licence suspended/revoked. The avenue is also used where:

  • Indefinite Leave to Remain has been refused on section 322 (5) grounds or section 10 removal for alleged Educational Test Services (ETS), Test of English for International Communication (TOEIC) fraud
  • A Points-Based System visa is refused, and there are no grounds for appeal on human rights
  • An organisation’s Sponsor Licence has been suspended or revoked
  • An EEA application has been refused
  • Visitor Visa application has been refused with no Administrative Rights or Appeal Rights
  • Immigration application is in pending status for long period without an explanation

The President of the Upper Tribunal has issued a Practice Statement to the effect that, in Judicial Review proceedings in the Upper Tribunal, the parties will be expected to follow the PAP, where appropriate, as they would for proceedings in the High Court. However, a PAP will not be appropriate in very urgent cases, and claims will be made immediately by your lawyer in cases including where directions have been issued for your removal from the UK.

What Does the Pre-Action Protocol Involve?

The PAP involves considering alternative methods of dispute resolution, such as assessing whether there are grounds for an appeal, negotiating with UK Visas and Immigration staff, and/or entering into mediation. It also requires the applicant to send a Letter Before Claim to the Home Office, detailing the basis for the challenge to its decision.

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What Does a Letter Before Claim State?

The Letter Before Claim is a vitally important document. A well-drafted letter can dramatically increase the chances of an immigration matter being resolved quickly and without the need to make an application for Judicial Review.

The Letter Before Claim should set out the following:

  • The decision or decisions being challenged
  • The date of those said decisions
  • The grounds on which the decision is being challenged and the error of law which has been identified
  • The action which is required by the Home Office to remedy the error

The PAP letter will state the time by which the Home Office is expected to reply. Although a shorter or longer time may be appropriate in a particular case, 14 days is the usual time given.

In practice, however, it is common for the Home Office to fail to reply within the period set out in the PAP (although a failure to respond does constitute a breach of the PAP). It is worth noting that a failure by the Home Office to comply with the 14-day time-frame without good reason can result in the court imposing penalties.

In the absence of a response within the 14 days provided for under the PAP, your lawyer can begin preparing the application for Judicial Review with a view to lodging it with the court as soon as possible, and in any event no later than three months from the date of the decision. If this is not done, the Judicial Review itself may be time-barred.

Your immigration lawyer will carefully monitor the time taken by the Home Office to respond to the Letter Before Claim as the court will not accept a delay by the Home Office in responding to the letter as a reason for not complying with the three-month timeframe for lodging an application for Judicial Review.

If the Home Office concedes to the claim, its letter of response should state the reasons for this clearly and ensure there is no ambiguity as to whether it concedes to the claim in whole or in part only.

In Summary

For a successful Letter of Claim to be drafted in immigration law, it is recommended to work with an experienced immigration lawyer in London who can provide you with the best advice. For expert legal advice, you can contact us. We have a strong track record of successfully getting the Home Office to concede based on a Letter Before Claim, which saves our clients an enormous amount of time, money, and stress and allows them to move forward with their lives and/or business.

A Y & J Solicitors are specialists in immigration law based in central London. If you would like to have more information, please contact us at [email protected] or call +44 20 7404 7933.

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.

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