Judicial Review

What Is Judicial Review (“JR”)?

Judicial Review (JR) is a legal mechanism that allows individuals to challenge unlawful decisions or actions made by UK public authorities, including the Home Office and immigration tribunals. It is often used in immigration matters where there is no right of appeal, or where appeal rights have been exhausted but an error of law has occurred.

Judicial Review is not an appeal on the merits of a case. It does not re-hear the facts of your case or decide whether the Home Office or tribunal made the “right” decision. Instead, JR examines whether the process and the decision was made lawfully. It will not substitute its own decision, but will send the case back to the decision-maker to consider again if it finds the original decision to have been defective.

In immigration cases, JR can be used to challenge:

• A Home Office refusal/rejection where no right of appeal has been given
• Appeal rights have been exhausted but there is an arguable error of law
• Unreasonable delay or failure to act by the Home Office

JR as a Remedy of Last Resort

Judicial review is a “remedy of last resort” where there is not a suitable statutory right of appeal and allows for review by the court of an administrative decision.

Judicial Review should only be pursued when all other remedies have been exhausted. If there is a right of appeal to the First-tier Tribunal or Upper Tribunal, or a right to request an administrative review, those avenues should be pursued first.

Before starting JR, it is common practice to send a pre-action protocol letter (letter before claim) or “PAP” to the Home Office’s litigation team, setting out the grounds of challenge and giving them the opportunity to respond.

Judicial review is expensive, the initial application fee is £174, and if the permission is granted, the hearing costs £874. You will need to pay for a solicitor and an advocate (or Barrister in England & Wales) or a solicitor-advocate to represent you. If you lose a judicial review case, you will normally have to pay the other side’s legal costs.

Grounds for Judicial Review in Immigration Cases

The primary legal grounds for Judicial Review are:

a) Illegality

The Home Office or tribunal incorrectly applied the law, acted outside its powers, took into account irrelevant considerations, or failed to consider relevant factors, in making the decision.

b) Irrationality (Unreasonableness)

The decision was so unreasonable that no reasonable decision-maker, acting reasonably, could have reached it. 

c) Procedural Impropriety

When there has been a failure to follow required legal procedures in reaching a decision or where the procedure has been carried out unfairly, such as not giving an applicant a fair opportunity to respond to concerns, or not providing adequate reasons for refusal. 

d) Legitimate Expectation

Where the Home Office had made a promise (for example, that it would consider certain evidence before refusal) and failed to honour it without good reason.

Who Can You Challenge?

In immigration Judicial Review proceedings, the respondent is usually the Secretary of State for the Home Department (the Home Office). JR can also challenge decisions of the First-tier Tribunal or Upper Tribunal in certain contexts, particularly where no appeal lies but there is an arguable case that the tribunal acted unlawfully in making their decisions.

Who Can Apply for JR?

You must have a direct and sufficient interest in the decision. In immigration JR, this is typically the applicant or appellant affected by the decision. Legal representatives may bring proceedings on behalf of their clients.

What are the Time Limits for bring a Judicial Review proceeding?

The time limit for lodging an immigration JR is promptly and within three months of the decision or action being challenged. In certain immigration matters, shorter deadlines apply — for example, in urgent removal cases, you may have only days to act. 

How to lodge Judicial Review?

Judicial Review in England & Wales

Proceedings for judicial review in England & Wales are brought in the Upper Tribunal,  sometimes  the Administrative Court, which is part of the King’s Bench Division of the High Court, will hear immigration-related JRs if outside the Upper Tribunal’s jurisdiction. It is mandatory to send a PAP letter before issuing an immigration JR unless there are exceptional reasons not to.

Judicial Review in Scotland

In Scotland, proceedings for judicial review are brought in the Outer House of the Court of Session. An advocate (who has “rights of audience” or the right to appear before the Court of Session) will be instructed by a solicitor to represent the petitioner’s case. It is not mandatory to send PAP before issuing an immigration JR in Scotland.

Key Remedies Sought

In both Scotland and England & Wales, the courts have similar powers in judicial review, but the terminology differs.

• Cancel an unlawful decision and send it back to the decision maker to re-make the decision: This is called Quashing Order in England & Wales (Reduction in Scotland) 
• Formally state the legal position: This is called Declaration in England & Wales (Declarator in Scotland)
• Grant an interim order to stop removal or enforcement until the case is decided: This is called Injunction in England & Wales (Interdict in Scotland)
• Compel the public body to carry out a legal duty, such as deciding a long-delayed application: This is called Mandatory Order in England & Wales (Specific Implement in Scotland)
• Damages  may be granted in rare cases where financial loss was caused directly by the unlawful decision.

How We Can Help?

At Angelov Solicitors, we provide representation in immigration judicial review cases. We will assess whether judicial review is the right remedy for your situation, considering the decision under challenge, the available evidence, and the time limits involved. Where appropriate, we prepare and send a Pre-Action Protocol letter / Letter Before Claim (England & Wales) or a pre-petition letter (Scotland) to the Home Office, setting out your grounds of challenge and giving them an opportunity to resolve the matter without court proceedings. If litigation is unavoidable, we will instruct an advocate or a barrister to draft legal grounds, compile an indexed evidence bundle, and lodge the claim or petition. We work with experienced barristers and advocates to present your case effectively in court.