In this post we discuss the role of judicial review in immigration cases in the UK.
It is intended as a general overview, but provides links to more detailed posts on specific sub-topics, including costs in judicial review claims, time limits, and more.
As ever, whilst we have significant experience working on our client’s judicial review applications, every case is different, and should not be taken as legal advice and is provided as generalised guidance only.
If you would like to discuss a potential judicial review claim with an experienced immigration lawyer, check out our one-off consultation service.
What is Judicial Review?
Judicial review is a procedure that allows a judge to review the lawfulness of a decision or action by a public body, e.g. the Home Office or a Local Authority.
When considering the decision or action of a public body, the judge will not review whether the conclusions reached by the decision-maker were right or not, but rather whether the conclusions were reached in the right way, i.e. they were legal, rational and fair.
If a judge concludes that a decision by a public body is illegal, irrational or procedurally incorrect, the decision will be deemed unlawful and overturned. The public body may then be ordered to remake the decision.
However, it should be noted that the public body might still come to the same decision, having simply addressed the illegality.
Grounds for judicial review
As mentioned above, judicial review is complex area of law, even for lawyers. But broadly, a decision or action by a public body can be overturned on the grounds of:
- Illegality – where the public body has not been given the legal power to make such a decision. For example, where a decision-maker goes beyond the discretion given to them by lawmakers in the UK Parliament.
- Procedural unfairness – where the circumstances or process that led up to the decision were unfair or improper. For example, where a decision-maker is not independent or impartial, or has failed to consider relevant information before coming to their decision.
- Irrationality – where the decision or action is so unreasonable that no rational person, acting reasonably, could have made it.
In addition, a decision or action by a public body may be overturned where it is incompatible with an individual’s human rights, as set out within the Human Rights Act 1998.
Why would you bring a judicial review claim?
In the UK, it is common that public bodies make decisions or take actions that have a significant impact on the lives of those living in the country.
For example, where the Home Office makes a decision in relation to an immigration application or a Local Authority decides whether to provide support or not, the decision has the potential to change a person’s life for better or for worse.
Where an individual disagrees with the decision or action of a public body, it may be that their only means to challenge the decision is by bringing a judicial review claim.
Where an individual has a right of appeal against a decision by a public body, this may allow them to challenge the conclusions reached by the decision-maker, and any such appeal should usually be pursued before making an application for judicial review.
However, where an individual does not have a right of appeal against a decision by a public body, or has been unsuccessful in their appeal, a judicial review claim may still allow them to challenge the way in which the decision has been made on one or more of the grounds set out above.
If the judge concludes that a decision by a public body is illegal, irrational or procedurally incorrect, the decision will be deemed unlawful and the public body may be ordered to remake the decision. Whilst there is no guarantee that the public body will come to a different conclusion, there is also the possibility that they may do so.
Therefore, a successful judicial review claim has the potential to force a public body to a remake a decision or undo an action where there is no available right of appeal.
Further to the above, an urgent application for judicial review can be brought in circumstances where the consequences of a decision or action by a public body will have immediate effect and need to be considered urgently, e.g. stopping a flight removing people from the UK.
In these circumstances, the judge may order that the consequences of the decision be put on hold until the legality of the decision itself can be properly considered.
Where a judicial review claim is successful, the most common outcome is for the judge to make a ‘quashing order’ overturning the decision of the public body, such that decision will need to be remade. However, the judge may make a number of orders, also known as remedies. These are as follows:
- Quashing Order – which overturns or undoes a decision or action under review, rendering it legally void.
- Prohibiting Order – which prohibits a public body from making a decision or taking an action that it has not yet taken place.
- Mandatory Order – which compels a public body to do something, e.g. to remake a decision within a designated period of time.
- Declaration – which is a statement of what the law is, where disputed.
- Damages – which orders a public body to pay damages. However, this is only available where some other form of legal remedy is also being sought.
There are other remedies available, but these are the most common.
How does it work? The judicial review process
The judicial review process can be complex, and long. The following are the main steps, common to most immigration judicial review actions.
Before lodging an application for permission for judicial review with the court which kicks off proceedings, it is crucial that applicants engage with the ‘pre-action protocol’.
The main step required by the protocol before taking the matter to court is that an applicant send to the public body a ‘Letter before Claim’ setting out the grounds on which they plan to challenge the decision or action which has been taken.
This is generally a formal letter that is required to contain certain information (as outlined in the protocol). See our separate post on this, The Perfect PAP: How to Write a Letter Before Claim.
This letter allows the public body to consider the proposed grounds for challenging the decision before an application is lodged with the court, with the possibility that agreement can be reached between the parties without the need for court proceedings.
Following (or failing to follow) the protocol can have implications for the parties when it comes to the court deciding who has to pay the costs of proceedings (see our post: How much does Judicial Review cost? for more on this).
In very urgent cases the pre action correspondence stage will not usually be necessary.
Application for permission to pursue judicial review
If agreement cannot be reached between the parties, a formal application for permission to pursue judicial review will be lodged with the court, setting out the grounds for judicial review.
As suggested, this step has been introduced as a way for the court to weed out cases which do not have a realistic prospect of success.
In order to get to a full trial of the issues involving lawyers wearing wigs, a claimant will need to persuade a judge that they have an ‘arguable case’.
This stage involves completion of a form, preparation of detailed grounds for review (usually prepared by a barrister, or senior lawyer), and filing with it any supporting evidence that might be necessary. Initially, this stage exists on paper only.
In immigration judicial reviews, there are two courts where applications can be lodged, and the correct venue will depend on the nature of the decision under challenge: see our post: Where to bring Judicial Review proceedings.
At the same time as lodging the claim with the court, a copy must also be sent to (known in legal terms as “served on”) the public body, who are then supposed to “acknowledge service” within a certain time limit.
Before a judge considers the applicant’s grounds for review, the public body will usually file a defence, outlining why it believes that the decision taken was not deficient in the ways suggested by the claimant.
Following this, a judge will then consider both the grounds for judicial review and the public body’s reply, before deciding whether to grant permission to pursue judicial review or not.
If permission is granted…
The permission stage of judicial review proceedings is absolutely key.
This is because, if permission for judicial review is granted, it is often the case that the public body will agree to settle the case by providing the applicant with the remedy they are seeking, e.g. agreeing to remake the decision under review.
For more details on the chances of success and statistics in judicial review cases, see our post: Will I Win my Judicial Review case?
If the public body does decide to withdraw the decision on the back of a grant of permission then, under the Loser Pays principle, the claimant should normally expect to have some of their legal costs paid by the other side.
However, in some cases, even where permission is granted, the public body may decide to maintain the decision. In this scenario, the case may then proceed beyond the permission stage to a full judicial review hearing.
This is where the lawyers in wigs come in.
If permission is refused…
If permission for judicial review is refused, it may be possible to request a hearing to put forward oral arguments about why permission should have been granted.
If this is successful, the court will then grant permission for judicial review. If it is not successful, this is usually the end of the matter.
As per the Loser Pays principle outlined above, a claimant may then be liable for the costs of the public body which has defended the decision. What these costs usually look like is discussed in our separate post on costs in judicial review proceedings.
Full judicial review hearing
If permission for judicial review is granted, but the parties are still unable to reach agreement, the case may proceed to a full judicial review hearing, at which a judge will consider the claim in detail.
It is generally rare for cases to get this far because of the costs of doing so, and the risk (for both sides) of being made liable for the other sides’ costs if they lose. This is an example of an order made after proceedings have been concluded:
Although this order is publicly available (unredacted), we have redacted the names for the avoidance of doubt, and in the unlikely event that an order for anonymity is later made.
We explore this order in greater detail in our post on costs.
Where an urgent application for judicial review is required, e.g. stopping a flight removing people from the UK, it may be possible to obtain an urgent decision from a judge without needing to go through all of the above stages.
See our detailed post on interim relief for more detail on this.
When should I bring judicial review proceedings?
An application for judicial review should be lodged as soon as possible after the relevant decision or action by a public body and, in any event, will need to be lodged no more than 3 months after the relevant decision or action.
Whilst it may be possible to lodge an application for judicial review after the 3 month time limit, this will only be in exceptional circumstances.
As set out in our post on limitation periods, time limits must be strictly adhered to.
Where should I bring judicial review proceedings?
As mentioned above, in most cases, an application for judicial review will be lodged with the High Court and proceedings will take place in the High Court.
However, for the majority of judicial review claims relating to immigration matters, the application must be lodged with the Upper Tribunal of the Immigration and Asylum Chamber and the proceedings will take place there also.
See our detailed post on where to issue proceedings for more information on this.
How much will my judicial review cost?
The cost of pursuing a judicial review claim will depend of the specific circumstances of the case and, in some cases, Legal Aid funding may be available to cover the cost of legal work and court fees.
If an individual is successful in their judicial review claim, it is possible that, along with the remedies sought, the public body will be ordered to pay the applicant’s legal costs.
However, if an individual is not successful in their judicial review claim, it is possible that the public body may seek to recover their legal costs from the applicant.
See our detailed post on costs for further information on this.
How long will my judicial review take?
In our experience, the time between filing the judicial review application and getting a decision from the court on permission is about 3 to 5 months.
In cases involving urgency, an application may be made for interim relief, but that initial decision on interim relief will not necessarily include a decision on the application for permission (although sometimes it can).
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.
See our more detailed post on judicial review timeframes and the practicalities of the process for claimants, including where an individual’s permission to be in the UK has expired during the process.