IMMIGRATION JUDICIAL REVIEW

If you wish to challenge the lawfulness of a decision or action of the Home Office, or the Immigration Tribunal, and have exhausted all available alternative remedies, our immigration judicial review lawyers can advise you on the merits of applying for immigration judicial review and represent you in immigration judicial review proceedings.

On this page we consider the nature of immigration judicial review and whether this is the right remedy in any given case, provide examples of common immigration judicial review claims, look at potential grounds for immigration judicial review, time limits for applying for immigration judicial review, the judicial review application process and fees and costs in immigration judicial review proceedings.

We have separate pages for immigration appeals to the First-tier Tribunal, Upper Tribunal and Administrative Review.

What is Immigration Judicial Review?

Immigration judicial review is a type of court proceeding in which a judge reviews the lawfulness of a decision or action of the Home Office or the Immigration Tribunal.

In an immigration judicial review, the judge will look at the way in which the Home Office or Immigration Tribunal reached its immigration decision, rather than whether the immigration decision was right or wrong. In other words, immigration judicial review involves a challenge to the process followed by the Home Office or Immigration Tribunal when reaching an immigration decision, rather than the conclusion actually reached. 

Immigration judicial review is a remedy of last resort – you will need to have exhausted all other available complaint and/or appeal mechanisms before pursuing judicial review proceedings.

You will not be notified by the Home Office of your right to challenge a decision by way of judicial review.

Judicial review applications can be costly, risky and complex. You may wish to seek legal advice from a specialist judicial review lawyer when considering an application for judicial review.

To discuss your immigration judicial review application with one of our immigration barristers, contact our immigration judicial review lawyers on 0203 617 9173 or complete our enquiry form below.

Is Judicial Review the Right Legal Process?

If you believe that the Home Office immigration decision in your case was wrong (rather than unlawful), you may be able to lodge an immigration appeal to the First-tier Tribunal against the decision, instead of applying for 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 judgement or the judge can send the decision back to the Home Office to be remade. You will be notified of any right of appeal in your decision.

If you wish to challenge the merits of a decision of the First-tier Tribunal, you may be able to appeal to the Upper Tribunal, instead of applying for immigration judicial review.

If you do not have a right of appeal, you may be able to challenge a casework error in the decision by way of an application for Administrative Review, instead of, or before, applying for judicial review.  Administrative review is an internal review by the Home Office which is considered ‘on the papers’ without any oral hearing.  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. You will be notified of any right of administrative review in your decision.

• What is the difference between Administrative Review and Judicial Review?
• How to Appeal a UK Visa or Immigration Decision

Examples of Immigration Judicial Review Claims

The following are common examples of when an immigration judicial review claim may be appropriate:

• Your immigration application has been refused by the Home Office, you have no right of appeal to the First-tier Tribunal and you are not satisfied with the outcome of your Administrative Review application;
• Your asylum or human rights claim has been certified by the Home Office as clearly unfounded, meaning you have no right of appeal;
• You have made further submissions to the Home Office and these have been rejected as not amounting to a fresh claim, with no right of appeal;
• Your appeal to the First-tier Tribunal has been dismissed and your application for permission to appeal to the Upper Tribunal has been refused by both the First-tier Tribunal and the Upper Tribunal, but you still believe that the decision on your immigration application contains an error of law;
• You wish to challenge the lawfulness of your detention;
• You wish to challenge an imminent removal or deportation.

Grounds for Judicial Review in Immigration Cases

There are three main grounds of immigration judicial review: illegality, procedural unfairness, and irrationality. 

• Illegality: the decision-maker did not have the legal power to make the decision;
• Procedural unfairness: the process leading to the decision was improper;
• Irrationality: the decision under challenge is so unreasonable that no reasonable person, acting reasonably, could have made it.

In addition, a decision of the Home Office or Immigration Tribunal can be challenged on the ground that the decision-maker acted in a way which is incompatible with human rights that are given effect by the Human Rights Act 1998.

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

As mentioned above, immigration judicial review is not an appropriate legal procedure if you wish to argue that a decision of the Home Office or Immigration Tribunal is simply wrong, or if there is another avenue of appeal or review available.

Our immigration judicial review lawyers can advise on the most appropriate way to challenge a decision of the Home Office and, where appropriate, draft grounds for judicial review.

Time Limits for Judicial Review in Immigration Cases

An immigration judicial review application challenging a decision of the Home Office must be made promptly and must be sent or delivered to the Upper Tribunal so that it is received no later than 3 months after the date of the decision that is being challenged.

An immigration judicial review application challenging a decision of the First-tier Tribunal (Immigration and Asylum Chamber) may be made later than the time given above if it is made within 1 month from the date on which the First-tier Tribunal sent written reasons for its decision; or notification that an application for the decision to be set aside has been unsuccessful.

These time limits mean that judicial review applications should be made as soon as possible, once it is clear that the case is suitable for judicial review.  If you think that you may have an immigration judicial review claim you should seek specialist advice from a lawyer who specialises in immigration judicial review as soon as possible.

Apply for Judicial Review in an Immigration Case 

Most applications for judicial review of a decision of the Home Office or the First-tier Tribunal (Immigration and Asylum Chamber) are lodged with, and decided by, the Upper Tribunal (Immigration and Asylum Chamber).

However, a challenge to any of the following must be lodged with the Administrative Court (a branch of the High Court) rather than the Upper Tribunal:

• The validity of the immigration rules or legislation;
• The lawfulness of detention;
• A sponsor not being included on the register of sponsors maintained by UK Visas and Immigration;
• A decision to refuse British citizenship;
• A decision to refuse asylum seeker support;
• A decision made by the Upper Tribunal (Immigration and Asylum Chamber);
• A decision made by the Special Immigration Appeals Commission;
• A declaration of incompatibility under section 4 of the Human Rights Act 1998;
• A decision that has been certified as in the interests of national security;
• A decision by a competent authority in respect of being a victim of trafficking.

This remainder of this page addresses immigration judicial review before the Upper Tribunal. If you are considering bringing judicial review proceedings before the Administrative Court then contact our immigration judicial review lawyers for further advice.

The Judicial Review Process

A judicial review application in the Upper Tribunal (Immigration and Asylum Chamber) in respect of a decision of the Home Office has several stages. 

Pre-action protocol letter

Before commencing immigration judicial review proceedings, you should send a Pre-Action Protocol Letter (or Letter Before Claim) to the Home Office. The Pre-Action Protocol Letter is a legal submission which explains why the decision of the Home Office is unfair, irrational, unlawful or breaches human rights. The Pre-Action Protocol Letter will also warn the Home Office that judicial review proceedings will be commenced if the decision is not withdrawn.

Upon receipt of a Pre-Action Protocol Letter, the Home Office will review the decision in your case, normally within 14 days.

Following consideration of a Pre-Action Protocol Letter, the Home Office may decide to overturn its decision and grant a visa.  Alternatively, the Home Office may decide to maintain its decision.

The Pre-Action Protocol Letter is an important document that can often lead to an immigration decision being withdrawn and remade without immigration judicial review proceedings needing to be started. Wherever possible, a Pre-Action Protocol Letter should be drafted by an immigration lawyer specialising in judicial review.

Issue judicial review proceedings 

If there is no satisfactory response to your Pre-Action Protocol Letter, the next stage is to apply to the Upper Tribunal (unless your case falls within the jurisdiction of the Administrative Court) for permission to apply for judicial review of the decision you are challenging.

Immigration judicial review proceedings must be issued promptly and within 3 months of the original refusal decision (or within 1 month of the written reasons of the decision of the First-tier Tribunal (Immigration and Asylum Chamber) being sent where these are being challenged). The Pre-Action Protocol Letter stage does not affect the time limit for lodging a judicial review claim. 

In order to seek permission to apply for judicial review you will need to complete a judicial review application form.  Care must be taken when completing the form to make sure that the information provided is accurate. 

Your judicial review application form must explain why the decision you wish to challenge is unlawful, irrational, procedurally improper or contrary to human rights. You may wish to attach detailed grounds for judicial review to the claim form, as the claim form itself is short. 

The application form must be accompanied by any written evidence on which you wish to rely, copies of any relevant statutory material and a list of essential documents for advance reading by the Upper Tribunal. Two copies of a paginated and indexed bundle containing all the documents must be sent or delivered with the application. 

Once your immigration judicial review claim has been issued by the Upper Tribunal, you must notify the Home Office and send them a copy of the judicial review application, including the case reference number and any accompanying documents.  Within 9 days of making the application you will need to provide the Upper Tribunal with a written statement of when and how a copy of your application and relevant documents was served on the Home Office.

The Home Office will usually have 21 days from when they receive the claim and documents to file an acknowledgment of service.  Following consideration of your immigration judicial review claim and acting on the advice of the Government Legal Department, the Home Office may decide to overturn and remake its decision.  Alternatively, the Home Office may decide to defend its decision.  If this is the case it will serve a defence statement incorporating its grounds of defence.

Permission to apply for judicial review 

If the Home Office decides to defend its decision, a Judge of the Upper Tribunal will review your immigration judicial review claim and the Home Office’s defence statement and make a decision on whether to grant permission for judicial review (if you have an arguable case) or not (if the claim is unarguable).  

The Upper Tribunal will generally, in the first instance, consider the question of permission on the papers, without a hearing.  However, if the Judge wishes to hear oral argument on whether the claim is arguable then an oral hearing may be ordered.

Most permission decisions are made within around 3 to 4 months.

If permission is granted by the Upper Tribunal then the Home Office may decide to withdraw its decision and make a new decision, typically within 3 months.  This will often result in a visa being granted. Alternatively, the Home Office may decide to defend its decision despite the grant of permission.  If so, your case will proceed to a full judicial review hearing on the merits.

If permission is refused by the Upper Tribunal on the papers then, unless your claim has been certified as totally without merit, you will have 7 days to request to renew your application for judicial review orally before a Judge of the Upper Tribunal.

If your judicial review claim has been certified as totally without merit then it may be possible to apply to the Court of Appeal to challenge this certification. 

The full judicial review hearing

If your immigration judicial review claim proceeds to a full judicial review hearing then a Judge of the Upper Tribunal will hear full oral argument from both sides on the lawfulness of the Home Office decision. 

If a case is not urgent, it can take from several months to more than a year for a judicial review case to be given a date for a final hearing.

No later than 21 working days before the hearing, you will need to serve on the Upper Tribunal and Home Office a skeleton argument and a paginated and indexed bundle of all relevant documents required for the substantive hearing.  The Home Office will also need to serve a skeleton argument on the Upper Tribunal and you. 

The Judge will then consider the claim in detail and make a final decision as to whether the Home Office acted unlawfully and, if it did, what (if anything) should be done to put things right. The Upper Tribunal’s judgement will set out the law which the Home Office must follow.   

Once judgement has been given, both sides will be able to make representations as to who should pay the legal costs of the proceedings. The loser usually has to pay both their own legal costs and the winner’s legal costs.

If your legal representation is funded by legal aid, it will generally cover all your legal costs.  Richmond Chambers is not authorised to provide legal advice or representation under the legal aid scheme.

• Judicial review in immigration law: The basics
• Preliminary steps for immigration judicial review
• Immigration Judicial Review: The Process

To discuss your immigration judicial review application with one of our immigration barristers, contact our immigration judicial review lawyers on 0203 617 9173 or complete our enquiry form below.

Processing Times

Processing times for immigration judicial reviews vary from case to case. The most important factor determining the processing time for an immigration judicial review is the stage that the immigration judicial review reaches before it is conceded or decided.

If the Home Office decides to overturn its decision and reconsider your application following receipt of a Pre-Action Protocol Letter then you could receive an indication to this effect within 14 days of submitting a Pre-Action Protocol Letter.  

However, at the other extreme, if the Home Office decides to defend its refusal decision at every stage of the process and your immigration judicial review claim proceeds to a full hearing then the outcome of your judicial review claim may not be known for at least 12 months.

Fees

The following court fees are payable by the claimant in an immigration judicial review claim:

• The fee for the initial judicial review application is £154;
• The fee for requesting that a refusal of permission is reconsidered at an oral hearing is £385;
• The fee for a full judicial review hearing is £770 (reduced to £385 if you have already paid £385 to have permission reconsidered at an oral hearing).

If you are on a low income, you may be eligible to apply for a reduction in these fees.

What Happens if My Claim Is Successful?

If a decision by the Home Office is found to be unlawful, unfair, irrational or contrary to human rights then the decision will not normally be re-made by the judge. Instead, it will normally go back to the Home Office (or the court found to have made an error of law) to reconsider its decision, this time in accordance with the law.

If the Upper Tribunal finds that the Home Office has acted unlawfully, it is likely that the Judge will do one of the following:

• Issue a mandatory order requiring the Home Office to do something (e.g. to take a new decision within a specific period of time);
• Issue a prohibitory order preventing the Home Office from doing something (e.g. to prevent removal from the United Kingdom);
• Issue a quashing order overturning or undoing the Home Office’s decision (e.g. to overturn and remake a decision on an immigration application);
• Issue an injunction requiring the Home Office to do something, or not do something, while a decision is made (e.g. to not remove from the United Kingdom pending a decision);
• Make a declaration stating what the law is, where this is disputed.

The Home Office or court may be able to make the same decision again, but this time make the decision following the proper process or considering all relevant case law or evidence reasonably.

What Happens if My UK Visa Judicial Review Is Not Successful?

If your judicial review claim is not successful, it may be possible to apply for permission to appeal to the Court of Appeal.  You may wish to seek legal advice from a specialist immigration judicial review lawyer when considering an appeal to the Court of Appeal.

Costs in Judicial Review Proceedings

An important consideration when deciding whether to pursue judicial review is the potential cost implications. 

The general rule is that the unsuccessful party will pay the costs of the successful party.  Therefore, if you do not succeed, you may be liable to pay the costs of the Home Office. 

Of course, it is also important to take into account that if you are successful, the Home Office may be liable to pay your costs. 

The Upper Tribunal has a discretion to award costs in immigration judicial review proceedings.  When considering the exercise of this discretion it will take into account all of the circumstances, including (but not limited to) the conduct of the parties before as well as during the proceedings, which party has succeeded, and whether they have been partly or wholly successful.  

When considering the conduct of the parties the Tribunal will consider whether it was reasonable for a party to raise, pursue or contest an allegation or issue, and the manner in which a party has pursued or defended a claim. One important consideration for the Tribunal will be whether each party has followed the Pre-Action Protocol for Judicial Review. 

• Costs in Immigration Judicial Review Proceedings

Immigration Status During Judicial Review Proceedings

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

The effect of judicial review on immigration status is complex and you may wish to seek legal advice regarding the effect of judicial proceedings on your immigration status.

• Section 3C leave & Judicial review – Has it come to an end or not?

Liability for Removal During Judicial Review Proceedings

An application for immigration judicial review will not, by itself, prevent your removal or deportation.

The Home Office may agree to defer removal or deportation if permission to proceed with a judicial review claim has been granted.

However, even where permission has been granted, the Home Office will not agree to defer removal or deportation if any of the following circumstances apply:

• You have applied for judicial review less than 6 months since the conclusion of a previous judicial review or appeal on the same or similar legal issue or evidence;
• You have applied for judicial review less than 6 months since the conclusion of a previous judicial review or appeal and the issues being raised could reasonably have been raised in the earlier judicial review or appeal proceedings;
• Your judicial review is brought during the three-month removal window (you may be able to apply for an injunction to stop the removal); 
• Your judicial review challenges your removal on a scheduled charter flight (you may be able to apply for an injunction to stop the removal).

How Our Immigration Barristers Can Help

Our immigration barristers work directly with individuals and businesses, within the UK and overseas, to prepare high quality judicial reviews of Home Office visa and immigration refusal decisions and provide expert legal representation at immigration judicial review hearings.

If you are looking to challenge a Home Office visa or immigration refusal decision by way of immigration judicial review, our immigration barristers combine specialist legal advice and advocacy, with a professional and supportive approach.

Whether you require advice on the merits of seeking permission to apply for immigration judicial review, help with lodging a judicial review claim or representation by an immigration barrister at a judicial review hearing, our immigration judicial review lawyers work directly with our clients, drawing on years of experience of preparing and presenting successful judicial reviews before the immigration courts.

We recognise that every client’s circumstances are unique and our immigration judicial review barristers provide tailored immigration law solutions designed to meet individual needs.