Immigration Judicial Review: The Process
Please note that this is the final blog in a three-part series. You may wish to refer to the first blog, Judicial review: The basics and Preliminary steps for immigration judicial review before reading this.
Final checks before lodging a judicial review
As discussed in the previous blog, judicial review is a remedy of last resort. Therefore, all other avenues of relief must haves been explored and considered.
Before lodging a judicial review claim, one should consider the following questions:
- Have I exhausted all avenues of remedy?
- Have I complied with the pre-action protocol as required?
- If not, do I have a good reason for not having done so?
- Am I lodging this claim promptly, or in the 3-month deadline?
- If not, do I have a good reason for not doing so?
- Have I considered whether there is some merit to lodging an application for permission for judicial review?
- Have I considered the consequences of bringing an unmeritorious claim for judicial review?
A claim form must be completed and lodged with any claim for judicial review. The appropriate form can be found on the Tribunal’s website.
Care must be taken in completing the form to make sure that the information provided is accurate. You should refer to the guidance notes when completing the form for further information.
Grounds for judicial review
You may wish to consider drafting detailed grounds for judicial review to accompany the claim form as the claim form is short. If you are including such grounds, you should indicate this on the claim form.
When drafting your grounds, it is prudent to remember the purpose of judicial review. As discussed in the previous blog, public body decisions can be challenged on the grounds of illegality, irrationality and unfairness. Judges will determine whether the way a decision was made was procedurally and legally correct, and not whether the conclusion is ‘right’ on the facts. Grounds should focus on this.
Poorly drafted ground can make it difficult for the Respondent to understand what you are arguing and can lead to unnecessary litigation.
Acknowledgment of Service
An Acknowledgment of Service (“AOS”) is the document which sets out the Respondent’s position in respect of your claim for judicial review. It is usually prepared by their legal representatives at the Government Legal Department, however it can be prepared by employees of Home Office themselves as the department attempts to reduce litigation costs.
The Home Office has 21 days from the date that it arrives with them to respond to your judicial review claim. The case of Kumar previously allowed for the Home Office to have an extra 21 days to respond to judicial review claims, but this ceased to have effect on 1 January 2019 as per the case of KA and another. Now all claims must be responded to within 21 days.
The Home Office will, however, still be able to make an application for an extension of time but this requires a good reason. It is at the discretion of the judge whether or not an extension of time is granted.
The AOS will set out the Home Office’s response and what they think the judge should decide in respect of the case. It can sometimes be in a short format, but can also include lengthy summary grounds of defence. This will depend on how complex the Home Office consider the case to be. Shorter grounds are becoming more common-place due to the pressure on the Home Office to reduce litigation expenditure.
The AOS, therefore, is an opportunity for the Home Office to review your judicial review claim and decide whether or not to defend the Home Office decision under challenge.
Concessions by the Home Office
If the Home Office agrees to withdraw and reconsider the decision you have challenged, this may mean that you have ‘won’ the litigation, but it does not mean that a favourable decision on your case will ensue. You may wish to submit further evidence to the Home Office decision maker who will reconsider your case to strengthen your claims, if you think this is necessary. A legal representative will be able to advise on this.
When conceding decisions, the Home Office may seek to negotiate a consent order, which will be sealed by the Tribunal, or it may file an ‘academic AOS’. An academic AOS requests the judge to refuse permission on the basis that the claim is now academic as the decision has been withdrawn.
If the Home Office is defending the litigation, or it has filed an academic AOS, the next step is a ‘paper decision’. This is where a judge has reviewed the decision by only considering the papers submitted, with no oral submissions being heard. The judge will then decide whether or not permission for judicial review should be granted.
If permission is refused, it can be refused as ‘totally without merit’ meaning that there is no option to have the judge’s decision reconsidered at an oral hearing. Permission to appeal this decision can be sought from the Court of Appeal, but this is beyond the scope of this blog.
If permission is refused, there will be an option for the judge’s decision to be reconsidered at an Oral Permission Hearing (“OPH”). The determination refusing permission for judicial review at the paper stage, will indicate the time frame for renewing to an OPH and the relevant fee.
This is an oral hearing of whether permission should be granted for a substantive hearing of your case to take place.
The Home Office will usually be represented by Counsel at the OPH.
If permission is granted, you will be required to pay the relevant fee and a substantive hearing will be listed.
Substantive hearings are full hearings. As stated in my previous blog, it is not a full hearing of the facts of your case. It is merely an assessment of whether the Home Office was acting lawfully in reaching the decision under challenge.
Even if permission is granted for a substantive hearing, it does not necessarily mean that the judge is likely to find that the Home Office acted illegally.
Substantive hearings can involve complex legal arguments which can be difficult to navigate and follow. It is prudent to obtain legal advice to ensure that your case is put forward in the best way possible.
Effect of JR
The effect of a pending JR can be a barrier to removal, but this will depend on the circumstances of your case. The effect of JR is complex and it is advised that you seek legal advice of the effect any JR may have on your case.
Contact our Judicial Review Immigration Barristers
For expert advice and assistance in relation to an immigration judicial review, contact our immigration barristers in London on 0203 617 9173 or via the enquiry form below.