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Judicial review in immigration law: The basics

Please note that this blog is part of series of blogs on judicial review in the context of immigration law

What is Judicial review?

Judicial review is the review of public authority decisions by the court. It enables such decisions to 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.

If the court finds that the public authority has acted unlawfully it can award damages, but this is rare in practice. Most likely the court will do one of the following:

  • Issue a mandatory order (requiring the public authority to do something);
  • Issue a prohibitory order (preventing the public authority from doing something);
  • Issue a quashing order (quashing the public authority’s decision); or
  • Make a declaration.

Why is judicial review relevant to immigration law?

Judicial review is relevant to immigration law because immigration applications are decided by Home Office employees on behalf of the Secretary of State for the Home Department. The Home Office is a public authority therefore all of its decisions are challengeable by way of judicial review.

Where decisions do not attract a right of appeal or administrative review, as is the case with many types of immigration decisions, an applicant can challenge the decision by way of judicial review provided that the challenge is on the grounds of illegality, irrationality or unfairness.

If a decision by the Home Office is found to be unlawful, unfair or irrational then the decision will not be re-made by the judge, it will go back to the Home Office for reconsideration.

Most judicial reviews in immigration law cases are now heard in the Upper Tribunal but some types of cases, such as unlawful detention or statutory appeals, are still heard in the High Court.

What is the difference between appeals, administrative review and judicial review?

An appeal is a full hearing of a case on the facts which takes place in the First-Tier Tribunal before a judge. If the appeal is allowed, the judge can either overrule the decision and make their own judgment or the judge can send the decision back to the Home Office to be remade. Usually the Home Office will be represented by a Home Office employee known as a ‘Presenting Officer’, rather than Counsel (a barrister) as occurs in in judicial review proceedings. If the appeal is dismissed and this decision is appealed to the Upper Tribunal, the judge may remit the case back to the First-Tier Tribunal to hear the case again if an error of law is found in the First-Tier Tribunal’s decision.  Appeals to Home Office decisions do attract a fee; £140 per appellant for an oral appeal and £80 per appellant for a paper appeal, which is payable to the First-Tier Tribunal. You will be notified of any right of appeal in your decision.

Administrative review is an internal review by the Home Office which is considered ‘on the papers’ meaning there is no oral hearing. Administrative review attracts a cost of £80 and such a request must be submitted within 14 days of the decision you wish to challenge, to avoid it being rejected as an invalid request. The decision under challenge will be checked by Home Office employees for errors that you have pointed out in your request for an administrative review, and the review will usually take place within 28 days of your request. You will be notified of any right of administrative review in your decision.

Judicial review is different to both of the above. It is an independent review by a judge which can only take place if neither an appeal or administrative review is available; it is a remedy of last resort. You will not be notified by the Home Office of your right to challenge the decision by way of judicial review. In any case, judicial review is not guaranteed. A judge will firstly need to grant permission for judicial review to take place, therefore, the first step is applying for this permission. A substantive review of the decision will only take place when permission has been granted and this will not be a full hearing of the case, as occurs in appeals, but a hearing on the legality, rationality and fairness of the decision making process. The Home Office will usually instruct Counsel to appear on its behalf in judicial review cases, rather than a Presenting Officer as occurs in appeals.

Is judicial review the answer to my immigration case?

Judicial review is a complex and time-consuming process. How quickly your case will be dealt with is completely dependent on the capacity of the court considering your case. It could be months before a decision is made on your case, or even before you receive a response from the Home Office as to their assessment of your case against them.

Lodging an application for permission for judicial review does not always mean that the Home Office cannot remove you from the UK if you remain here without valid leave to remain. This is a complicated issue which will be addressed in more detail later in this blog series. For now it is essential to note that judicial review may not mean you can stay in the UK pending the outcome of your litigation.

Similarly, judicial review may not extend your leave to remain by virtue of section 3C of the Immigration Act 1971.

As judicial review is not a review of the conclusion of a decision, but of the decision-making process, it means that notwithstanding a judge determining that a decision was made unlawfully, the Home Office could reach the same conclusion following the reconsideration.This is why well-drafted grounds and an appropriate bundle are essential preparation for judicial review.

For these reasons, it is prudent to consider legal advice when considering judicial review as it is a complicated process; there are many factors to consider before embarking on the route to judicial review.

The next blog on judicial review will address what steps need to be taken for judicial review.

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