We assist clients who are subject to poor decision-making by the Home Office and other public authorities.
Many immigration decisions do not attract a right of appeal or administrative review. In such cases, the only way to challenge the lawfulness of public body decision-making is through Judicial Review. The first step in any such claim, is the preparation of a letter before claim, which we consider in this post.
Note that Judicial Review is a particularly complex corner of English law, and what follows should not be taken as legal advice. If you have had a negative decision from a public body and would like us to take a look, get in touch to book a consultation.
Pre-Action Protocol procedure
Before bringing a claim for Judicial Review, the claimant should first engage in the Pre-Action Protocol (PAP) procedure.
If your matter is particularly urgent – for example, you are facing imminent removal from the UK – you may be able to dispense with the pre-action protocol. Unless you have a very good reason not to, however, you should always aim to comply with the protocol as failure to do so may have later cost implications should the matter continue to court.
The first step in PAP procedure involves writing a formal letter to the proposed defendant setting out your arguments and what outcome you are seeking. This is often called a letter before claim or PAP letter.
The best PAP letters are well structured and easy to follow, with clear headings and numbered paragraphs.
A well-drafted PAP letter could make a real difference to your case and even lead to early resolution, preventing the high costs and stress involved in pursuing Judicial Review at court.
If you are pursuing a claim without legal assistance (or even with a lawyer), then you should familiarise yourself with the protocol, available on the Ministry of Justice website.
What is the decision?
At the outset, the PAP letter should introduce the decision being challenged.
For example, if the Home Office has decided to refuse an immigration application, the type of decision made and the date of the decision should be set out at the start of the letter.
A succinct summary of the facts should be provided. In particularly complex matters a chronology of the main events and dates relevant to the decision should be included. This will aid the reader in navigating the facts relevant to the case.
What is the law?
Remember that it is not the decision itself that is in dispute but the way in which the decision was made and whether this was legally and procedurally correct.
Accordingly, there must be some legal basis for bringing the claim. Any decision made by the Home Office must accurately apply the legal framework and Home Office published policy to the facts of each case. The Home Office must take into account all material considerations, facts and evidence relevant to an application. The decision must not contain factual errors or lack sufficient reasoning.
The PAP letter must clearly identify the relevant legislation, policy or case law applicable which the decision maker must have had regard to.
Why is it wrong?
The facts and the applicable law have been outlined. Focus now turns to the legal basis for why the decision is unlawful when viewed against the particular circumstances of the case.
This is the crux of the PAP letter and where legal arguments are built demonstrating how the decision under challenge was not made in accordance with the relevant legal principles.
See our post “Judicial Review: who, what, where, how, why, when, and how much?” for an overview of the available grounds of challenge.
What do you want?
The PAP letter should conclude with the remedy sought and a timeframe of at least 14 days for a response
In the context of Home Office decision-making a remedy might be for an immigration decision to be reconsidered or remade with a right of appeal granted.
The remedy sought must be connected to the legal arguments raised. For instance, if the decision under challenge was a refusal to accept further submissions as amounting to a fresh claim, the remedy sought might be reconsideration of the further submissions applying the correct legal test for fresh claims.
For immigration matters, the Judicial Review time limit is 3 months from the date of decision under challenge.
The time limit is strictly applied. We therefore advise those who receive a decision to seek legal advice at the earliest opportunity to ensure compliance with the time limit for taking action.
See our detailed post on time limits in judicial review claims.
The PAP letter can be sent via email to the following Home Office email address: UKVIPAP@homeoffice.gov.uk
Alternatively, it can be sent via post to the Home Office postal address:
Litigation Operations Allocation Hub
6 New Square
What happens next?
The PAP letter should trigger a review by the Home Office. If the Home Office agree to remake their original decision, a new decision will be issued.
If the Home Office decide to maintain their original decision, or if you receive no response to your PAP letter, you can then apply to a court for permission to bring a claim for Judicial Review, in order for your case to be considered by a judge.