Judicial Review (JR)
You can challenge the decision by way of judicial review, if you believe that Home Office made an illegal or unlawful decision regarding to your immigration matter. Judicial review is a legal procedure, allowing individuals or groups to challenge in court the way that Ministers, Government Departments and other public bodies make decisions. The main grounds of review are that the decision maker has acted outside the scope of its statutory powers, that the decision was made using an unfair procedure, or that the decision was an unreasonable one.
Obtaining Judicial Review is a two-step process. Firstly, an application must be made to the court for permission to apply for Judicial Review, as the right is not granted automatically. Only if permission is given will the second step – review of the actual decision, occur.
Acts or omissions will be unlawful and open to review by the Administrative Court or the UT if they fall under one of the available grounds of JR:
- Illegality - where there was an error of law in the making of the decision—one example is where the decision maker did not have the power to make the decision or unlawful delegation
- irrationality (in the Wednesbury sense) or unreasonableness—this is a very difficult ground to prove
- procedural impropriety and unfairness
- the decision was in breach of the Human Rights Act 1998 (HRA 1998)—usually involving an assessment of proportionality, and
- the decision breaches EU law
The grounds for Judicial Review keep expanding. For example, there is a developing body of authority to support the proposition that proportionality can be used as a ground of review in challenges to purely domestic law decisions, and not just those involving an EU or Human Rights element.
The grounds for Judicial Review often overlap one another, for example, immigration decisions are often challenged on the grounds of proportionality and illegality.
The time limit specified by CPR 54.5(1) does not affect the protocol, that is, after the grounds upon which the claim is based first arose, a prompt application for permission to apply for Judicial Review must be made and not later than 3 months.
The time limits for bringing a Judicial Review are strict. For example, if your application for indefinite leave to remain has been refused without a right of appeal, you can challenge the decision via Judicial Review but you must make the application within three months of receiving the letter of refusal.
Pre-Action – Letter Before Claim
Prior to proceeding with a claim for Judicial Review, we have to send a Pre-Action - Letter before Claim to the Home Office. The letter will contain the issues in dispute namely the failure of the Home Office to deal with your matter appropriately. The purpose of this letter is to try and avoid unnecessary litigation.
The protocol sets out a code of good practice and contains the steps which parties should generally follow before making a claim for Judicial Review (JR). The objective of the pre-action protocol is to avoid unnecessary litigation.
This Pre-action Protocol applies to proceedings within England and Wales only. It does not affect the time limit specified by Rule 54.5(1) of the Civil Procedure Rules (CPR), which requires that any claim form in an application for judicial review must be filed promptly and in any event not later than 3 months after the grounds to make the claim first arose.
If you are seeking to make a claim for Judicial Review (JR) against the Home Office, UKBA, you should send a pre-action protocol letter to the defendant, the home office (UK Visas & Immigration) (UKBA).
The sole purpose of this letter is to identity the issues in dispute and establish whether litigation
against the Home Office, (UK Visas & Immigration) (UKBA) can be avoided.
Pre-action protocol letter should contain the details of the decision (the refusal letter), act or omission being challenge and a clear summary of the facts on which the Judicial Review claim against the Home Office, UKBA is based. It should also contain the details of any relevant information that the claimant is seeking from the Home Office, UKBA (UK Visas & Immigration) and an explanation of why this is considered relevant.
If Home Office, UKBA (UK Visas & Immigration) find an error on their part then they will turn down the decision and the visa will be granted, however if the Home Office, UKBA respond to the pre-action protocol letter stating that they stand to the original decision then you can initiate Judicial Review proceedings against the Home Office, UKBA.
The Defendant .i.e. Home Office, UKBA (UK Visas & Immigration) should normally respond to this Pre-action protocol letter within 14 days and sanctions may be imposed unless there
are good reasons for not responding within that period.
Generally, before making a claim for Judicial Review, the protocol sets out certain codes of good practice that contain the steps which parties should follow. The avoidance of unnecessary litigation is the objective of the pre-action protocol.
A letter should be sent to the defendant (Home Office, UKBA) before the claimant makes a claim for Judicial Review (JR) against the Home Office, UKBA. Avoiding litigation with the Home Office, UKBA and identifying the issues in dispute is regarded as the purpose of the letter.
There are some required features that should be contained in the letter such as the date and details of the decision of the refusal letter, any form of act or omission being challenged and an adequate summary of facts against the Home Office, UKBA which is based on the Judicial Review claim.
The details of any relevant information made by the claimant seeking from the Home Office, UKBA should also be included in the letter as well as an explanation of why the information is considered relevant.
With exception to the circumstance where by the case requires immediate action to be taken, the claim against the UKBA by the Judicial Review (JR) should not be made until the anticipated reply date stated on the letter before the claim has passed.
Unless there are good reasons for not responding within the 14 days period, certain sanctions will be imposed if the Defendant (Home Office, UKBA) does not respond to the letter before the pre-action protocol letter within 14 days.
If the UKBA responds within the 14-day period but continues to maintain their decision to refuse application or they do not reply to the pre-action protocol letter within the specified period, an application for permission to apply for Judicial Review can be filed in the Upper Tribunal.
Paper application to The Upper Tribunal for permission to apply for Judicial Review
If the decision to refuse is maintained by the Home Office, UKBA or they do not respond to the Pre Action Protocol letter within 14 days, you can make an application to the Upper Tribunal for permission to apply for Judicial Review. Such application is made on papers and the court will refuse and grant permission on papers and without a court hearing. The majority of the applications for permission to apply for Judicial Review (JR) are resolved by consent at this stage after negotiations between the Treasury Solicitors (the solicitors representing the Home Office, UKBA) and the claimant’s solicitors.
Renewal of an application for permission to apply for Judicial Review
If a paper application for permission to apply for Judicial Review (JR) is refused by the Upper Tribunal, the claimant can then make an application for renewal of permission for Judicial Review (JR) within 7 days for the permission application to be decided after a court hearing. The court will list the matter for hearing and the permission will be granted or refused after the court hearing.
Hearing following the grant of permission to apply for Judicial Review
If the permission is granted either at the stage of an application on papers or after the hearing in the court, the Judicial Review (JR) will then be listed for substantive hearing whereby the Upper Tribunal will decide whether or not the decision of the Home Office, UKBA is in accordance with the relevant laws.
If permission to apply for Judicial Review (JR) is refused by the Upper Tribunal following an oral hearing, an application can then be made to the Court of Appeal for permission to appeal to the Court of Appeal within 7 days of the order of the Upper Tribunal refusing permission to apply for Judicial Review.
Injunction against removal
A person who is being removed from the UK and the Home Office, UKBA have set directions for his removal from the UK, can seek an emergency injunction from the Upper Tribunal to stop his removal from the UK if it can be shown that such removal from the UK is unlawful and therefore not in accordance with law.
In cases, where someone is being removed during time outside court working hours, an injunction can be sought from Duty Judge Upper Tribunal and such injunction can be obtained even over the phone by explaining to the Duty Judge Upper Tribunal how the removal of the person being removed is unlawful and not in accordance with the relevant law.
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