Preliminary steps for immigration judicial review
Please note that this blog is a part of a series on immigration judicial review. You may wish to refer to the first blog, Judicial review: The basics before reading this.
Have all other avenues prior to immigration judicial review been exhausted?
As discussed in the previous blog, immigration judicial review is a remedy of last resort. Therefore, all other avenues of appeal or other alternative remedies, such as administrative review, have to have been exhausted before judicial review can take place.
If another avenue is available to you, an application for permission for judicial review could be refused.
What role does the pre-action protocol play in judicial review?
What is the pre-action protocol?
The pre-action protocol is set out in the Civil Procedure Rules. It is the conduct that the court expects parties to have undertaken before commencing proceedings. Judges will expect parties to have complied with the pre-action protocol, if possible, before lodging a claim for judicial review.
What is the purpose of the pre-action protocol?
The purpose of a pre-action protocol letter, often referred to as a PAP letter, is for the party bringing the judicial review to set out their case against the Respondent, the Secretary of State for the Home Department (the Home Office). This allows the Respondent to consider the merits of your case before any litigation has commenced.
The aim is for parties to settle the matter without having to litigate and incur costs, where this is possible.
If you receive what you consider to be an unsatisfactory response to your pre-action protocol letter, judicial review is the next step.
Can it be dispensed with?
A pre-action protocol letter should only be dispensed with if the nature of your claim is urgent.
If there is no good reason to dispense with a pre-action protocol letter, this may give rise to you having to pay additional costs. This would happen at the court’s discretion in accordance with CPR 44.2.
It is advisable to comply with the pre-action protocol where possible to avoid any cost implications that could occur.
Does it affect time limits?
The pre-action protocol does not affect the time limit for lodging a judicial review claim. The time limit will begin from the date of decision you wish to challenge whether or not you have engaged in pre-action protocol.
What are the time limits for immigration judicial review?
In order to judicially review a Home Office decision, an application for permission needs to be lodged with the relevant court promptly or, in any event, within three months of the date of the decision in accordance with CPR Part 54.5.1(a)-(b).
Note that this time limit cannot be extended with the agreement of the Home Office.
A failure to lodge a claim for judicial review within this timeframe may result in permission being refused if no adequate reason for the delay is provided.
If you are lodging a claim for judicial review after the deadline for submission, extra information is required such as the reason for delay and any grounds for an extension of time application. Judges can take a robust approach when enforcing the time limit, so any reason would need to be exceptional.
It is essential, therefore, to seek legal advice at the earliest possible stage to ensure that all time limits are complied with.
What issues can be raised in an immigration judicial review?
As stated in the previous blog post, judicial review is not a full re-hearing of your case.
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.
Accordingly, the default position is that the Judge will consider only the evidence that was before the decision maker at the time of the decision. They will only depart from this default position in circumstances that are unusual, if not exceptional.
Judicial review, therefore, is not an opportunity to submit any further evidence that you consider could enhance your case.
Cost of immigration judicial review
At the time of writing this post, the cost of lodging a claim for judicial review is £154. This fee only includes the Judge’s assessment of whether or not to grant permission.
Further fees are to be paid if you require the Judge’s decision on permission to be reconsidered, or if permission is granted and your case proceeds to a substantive hearing.
What are the issues that frequently arise with immigration judicial review cases?
Out of time
As stated above, judges can take a robust approach to enforcing time limits. Many claims are lodged out of time and accordingly are refused permission.
You must make sure that when you decide to lodge an application for judicial review, that you are aware of the relevant dates and time restrictions.
Poorly drafted grounds
Poorly drafted grounds for judicial review are surprisingly common.
Government lawyers are often put in a difficult position whereby grounds are so poorly drafted that they cannot ascertain what the Applicant’s case is. This makes assessing the merits of the case extremely difficult and can lead to litigation where the issues could have been resolved at an earlier stage thereby saving cost, time and effort from all parties.
It is essential to make your claim clear or to obtain legal representation so that your case can be clearly put forward on your behalf.
Reconsiderations making the same mistakes
Another frustration is when the Home Office has agreed, or has been ordered, to reconsider the decision you have challenged and makes the same decision with the same errors. This can result in proceedings having to be initiated again, or a lengthy dialogue between lawyers.
As stated in the previous blog, judicial review is a long and costly process and these frustrations must be kept in mind when considering whether this route is best for your case.
The next blog on judicial review will address the procedure for judicial review.
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 our enquiry form.
