Judicial Review in Immigration or Asylum Cases
So you have received a refusal letter from the Home Office and there is no right of appeal against the decision?
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In this case you can challenge the Home Office decision by way of judicial review BUT only if you have exhausted all the other alternative remedies such as the right to an administrative review.
But before we proceed to the serious stuff below, I suggest you have a quick read of this to stay positive!
What is a judicial review in an immigration or asylum case?
An immigration judicial review(JR) aims to determine if the decision made by the public body(and the Home Office is a public body as its employees make immigration decisions on behalf of the Secretary of State for the Home Department) was lawful, procedurally and legally correct.
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If the decision made by the Home Office or the Immigration Tribunal was unlawful, unfair or irrational, the court will set it aside in the course of the JR(judicial review) so that a new immigration decision could be made. This means that the case will have to be reconsidered by the Home Office and of course it means more waiting for the applicant/litigant again.
An immigration judicial review deals with the evidence which was before the Home Office at the time of making your application and that means that you cannot produce any new evidence at this stage to make your case “stronger”.
Things to consider before embarking on a judicial review route
Judicial Review is a complex and time-consuming matter. It is also expensive. So you need to think carefully before initiating proceedings- if you lose, you will be liable for the costs of the other party(in this case the costs of the Home Office) that were incurred in the process of litigation.
As to the costs of solicitor’s services for the judicial review proceedings they vary. I have seen some solicitors charging £10,000 for the judicial review and some others £2,000. What needs to be remembered is if you have a case with merits, it is worth pursuing.
When should I apply for a judicial review in an immigration case?
You can challenge the Home Office decision by initiating judicial review proceedings within 3 months from the date of the refusal letter as per CPR Part 54.5.1(a)-(b) which can be found here.
For example, if the date on your Home Office refusal letter is 30th January 2019, you only have time till 30th April 2019 to lodge a judicial review with the court.
However, before lodging a judicial review with the court, you will need to comply with the requirement to issue a pre-action protocol letter/PAP to the Home Office.
Three things can happen as a result of issuing a PAP/ pre-action protocol letter to the Home Office:
The Home Office will agree to reconsider your case.
The Home Office will not be bothered and will send a response to you or your solicitor that if you wish to bring about the judicial review proceedings, you can proceed.
The Home Office will not be bothered to respond to the pre-action protocol/PAP-letter.
A PAP letter/pre-action protocol letter must be issued to the Home Office as soon as reasonably possible after the Home Office refusal letter was received so as to allow enough time for the Home Office to respond.
It is good to bear in mind the deadline for lodging the judicial review and lodge it a few days prior to the deadline.
What is a PAP letter/Pre-Action Protocol letter?
Pre-action protocol letter outlines the details of the decision being challenged and the reasons why it is being challenged.
What is a JR/judicial review bundle needed for the judicial review permission hearing?
A judicial review bundle will contain a judicial review claim form/T480 that needs to be filled out along with a detailed statement of grounds and supporting documents that comprise your JR bundle.
It costs £154 to lodge a judicial review in the court at the time of writing. Court fees can be checked here.
Where will the hearing take place?
Most judicial reviews in immigration cases are now heard in the Upper Tribunal.
What happens next?
So you have issued a PAP letter and lodged a JR with the court within the required time frame of 3 months from the date of the Home Office refusal letter.
You are now on your way to your judicial review permission hearing “on papers”. This means that the judge will make a decision as to whether the decision-making process of the Home Office was fair, lawful and rational. This will happen without you being present in person, hence "on papers".
If the decision is not in your favour and it is refused “on papers” and you believe that your case has to be considered at an oral permission hearing, then you will need to renew the judicial review application for an oral permission hearing. This involves a fee of £385 to be paid to the court.
It is important to remember that it will be a judicial review permission hearing and not the judicial review itself as a substantive hearing.
What happens during an immigration judicial review permission hearing?
During this judicial review permission hearing the judge will decide whether the permission to bring about the judicial review proceedings will be granted or refused.
If the permission to bring about the judicial review proceedings is granted, then a separate hearing will take place later and it will be a full judicial review hearing.
If the permission to bring about the judicial review proceedings is refused, then you will have to think about the other possible options of how to tackle your case as the matter will not be able to proceed further in a way that it was presented initially.
If it is refused, it is important to remember that the unsuccessful party in litigation is liable to pay the costs of the successful party. Therefore, if the Home Office wins, you will have to pay their legal costs as a result. The court will send you a letter stating how much you owe.
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You could try and challenge them in a separate submission to the court but within 14 days only, but in most cases the Home Office will be able to recover their costs for filing the Acknowledgement of Service and their attendance in the court on the day of the judicial review permission hearing.
As seen above, JR/judicial review is a complex and time-consuming process not only in terms of the necessary preparation of the case but also in terms of the amount of time it takes for the case to go through the immigration system. T