In this post we look in a bit more detail at how long claimants may expect to wait for outcomes to their judicial review claims in the immigration law context. A more general overview of the process can be found here.
We also consider the question of whether an individual must be in the UK in order to continue to participate in their claim, and the potential implications for claimants whose permission to stay in the UK has expired during the course of their claim.
As ever, this is not legal advice, and is intended only to provided a general overview of the subject matter based on our own experience. If you would like individual advice on your particular situation then do get in touch.
How long will my judicial review take?
We know that the rules require that an application for judicial review has to be made promptly and in any event within no more than three months but there are no rules on how long it will be before a decision is made by the court.
After an application for permission has been filed with the court and served on the decision-maker, time is permitted for the decision-maker to file summary grounds of defence.
The rules allow a defendant to have 21 days to provide a response though, often, an extension of time will be sought particularly from central government departments such as the Home Office.
There is no automatic right to an extension but in most cases the court is likely to grant at least one extension if the defendant makes such an application and provides brief details as to the reasons.
Once the summary grounds of defence have been filed, the papers can then be considered by a judge to make an initial decision on the papers either to grant permission, to refuse permission or to direct that there should be an oral permission hearing.
In general the time between filing the application and getting an initial decision on permission is about 3 to 5 months.
In cases involving urgency, an application may be made for interim relief (e.g. an injunction to prevent a person from being put on a plane, an order requiring a local authority to provide ongoing care for an individual), but that initial decision on interim relief will not necessarily include a decision on the application for permission.
(It can do but as the application is normally associated with an urgent remedy before the opponent has had a chance to put their case forward, normally a decision on the urgent application would simply deal with the urgent matter whilst leaving the question of permission for another day)
Where permission is refused and a request is made for an oral hearing to reconsider the application for permission then the time period between the request and the listing of that application is generally between 8 to 16 weeks.
If permission is granted and the opponent decides to continue with defending the claim, then the time between a decision on permission and the full hearing is generally somewhere between 9 to 15 months.
Do I have to be in the UK for judicial review claim?
In the majority of cases in which we are instructed, the proceedings will be on behalf of an individual who is within the UK.
However, in some cases the action may be on behalf of the person who is challenging a refusal which does not give rise to a right of appeal (e.g. a judicial review of a visit visa refusal) and there is no requirement for the individual to be within the UK, either at the start of the proceedings or indeed during the proceedings.
Some challenges that we have been involved in are specifically about trying to bring back someone to the UK urgently in cases where it is suggested that the Home Office have acted unlawfully by proceeding with the removal. In such cases the court has the power to direct that the Home Office make arrangements to return that individual.
What happens to my status whilst I am pursuing a claim?
Where a person has legal status at the time of receiving a refusal decision then (leaving aside cases involving certification), their legal residence can continue until the resolution of a statutory appeal.
However, the same is not true in relation to a person that is pursuing a judicial review claim.
In theory, therefore, it is possible that the Home Office may decide that, notwithstanding the judicial review claim, they may take steps to remove a claimant on the basis that, if ultimately successful, they would have the basis of a claim to be returned to the UK.
In many cases this theoretical opportunity to remove a person will not be taken up by the Home Office unless they believe that the application is itself abusive, or stands very little prospect of success.
There are practical consequences for an individual in the UK even if the Home Office decide not to remove them. For example, technically, their right to work would come to an end, as would their right to rent.
If the judicial review claim succeeds and it is shown that the decision rejecting an application for leave has been made incorrectly then the consequence of that may be to put the person back in the position that they would have been in had there not been an unlawful decision.
In other words, even though the person’s legal residence had come to an end, if the decision leading to that residence coming to an end was improperly made then the length of time of those proceedings should be regarded as time legally spent in the UK.
An example where this may be relevant is a challenge to the legality of an earlier decision and as a consequence of successful judicial review proceedings, the person may have clocked up enough time so as to be eligible to apply for settlement.