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The Pre-Action Protocol in Immigration Judicial Review

Embarking on the journey of challenging a decision made by the Home Office can be a daunting task, fraught with legal complexities and procedural intricacies. Whether it’s an entry clearance, leave to remain or settlement decision affecting your rights, understanding the pathway to justice is paramount. At the heart of this process lies the Pre-Action Protocol, a set of guidelines designed to ensure fair and transparent proceedings before resorting to judicial review.

In this comprehensive guide, we delve into the essence of the Pre-Action Protocol and its pivotal role in immigration law. From deciphering its principles to navigating through the intricacies of drafting a Pre-Action Protocol letter, we unravel the mysteries surrounding this fundamental aspect of challenging Home Office decisions.

What is the Pre-Action Protocol?

The Civil Procedure Rules (“CPR”) set out the Pre-Action Protocol. This is the code of good practice which should be followed by parties prior to seeking a judicial review of a decision. Therefore, if you seek to challenge a Home Office decision by way of judicial review it will first be necessary for you, and any legal representative, to consider this Protocol.

What Is a Judicial Review?

A judicial review is the process whereby an individual can challenge the lawfulness of an act, decision or omission of a public body which is exercising a public function. Since the Home Office is a public body, judicial review challenges are available for certain immigration law decisions, including some visa refusals.

The judicial review process is distinct from an appeal or administrative review and is considered the remedy of last resort. 

A decision can be challenged by judicial review on any of the following grounds:

  • Illegality: that the Home Office did not have a legal power to make the decision they did;
  • Irrationality or unreasonableness: the decision is such that no reasonable person, acting reasonably, could have come to the same decision;
  • Procedural impropriety and unfairness: the decision-making process carried out was improper;

Not all Home Office decisions can be challenged using this process and you will be notified by the Home Office if you have a right to challenge a decision by way of judicial review.

Alternative Dispute Resolution

A pre-action protocol letter, otherwise known as a letter before claim, is one aspect of the protocol. Another aspect is considering if there is an appropriate form of alternative dispute resolution, such as discussion and negotiation, using the relevant public authority complaints or review procedures, the Ombudsman or mediation. As the CPR states, “The courts take the view that litigation should be the last resort.” 

In immigration law, a common form of alternative dispute resolution is administrative review. Not all Home Office decisions carry this right. An administrative review can only be brought if the Home Office has made a caseworking error. Further information on administrative reviews in immigration law and what constitutes a caseworking error can be found here.

Requesting Information and Documents From the Home Office at the Pre-Action Stage:

Another important part of the protocol is gathering information, be it documents in the Home Office’s possession or further detail about a refusal decision. It should be noted that requests for information and documents made at this stage, “should be proportionate and should be limited to what is properly necessary for the claimant to understand why the challenged decision has been taken and/or to present the claim in a manner that will properly identify the issues,” as the CPR sets out.

Time Limit for Judicial Review:

The time limit for bringing a judicial review is promptly or, in any event, within three months of the date of the decision being challenged. It is rare for an extension in time to bring the claim to be permitted. The pre-action protocol does not affect this time limit, allowing also for the period for the Home Office to respond to the letter.

Judges will therefore expect that parties have used and complied with the pre-action protocol wherever possible. Non-compliance may result in cost sanctions at a later stage. 

What Is a Pre-Action Protocol Letter and What Should It Contain? 

The letter allows the Home Office to consider the merits of your case and their position on it further before litigation has commenced.

The Home Office website provides a template for the pre-action protocol letter but you can draft your own as an attachment or obtain legal assistance to do this.

The Civil Procedure Rules state that prior to commencing proceedings, the court will expect the parties to have exchanged sufficient information to:

  • Understand each other’s position;
  • Make decisions about how to proceed;
  • Try to settle the issues without proceedings;
  • Consider a form of Alternative Dispute Resolution (ADR) to assist with settlement;
  • Support the efficient management of those proceedings; and
  • Reduce the costs of resolving the dispute.

The letter itself should contain all key information which would be later raised in court proceedings. It should include all relevant information to your claim, including:

  • The date and details of the decision being challenged
  • The basis of challenge
  • A factual summary
  • The legal basis for your claim 
  • The remedy you are seeking.

As above, you are able to request further information and documents as part of the letter. You should set out specifically what it is you are seeking and why it is relevant. 

In the letter, it is beneficial to be as concise as possible and only mention relevant matters. 

The typical timeframe to request a response to a pre-action protocol letter is 14 days.

What Happens After a Pre-Action Protocol Letter Has Been Sent?

The pre-action protocol can result in the decision you are challenging being overturned. Note that the Home Office can partly concede the claim.

If the decision is maintained, or no response is received within the specified timeframe, you can then submit an application for permission to apply for judicial review. 

Further information on the process for judicial reviews can be found here. Generally, a judicial review is a time consuming and costly process so if the matter can be resolved favourably prior to lodging that is preferable.

Urgent Judicial Review Applications

If your case is urgent, you may make a claim for judicial review immediately and not follow the pre-action protocol. You should still attempt to notify the public body prior to commencing legal proceedings. The threshold of what is considered urgent is high and could include if you are facing imminent removal from the UK. If you do lodge a claim for judicial review after this timeframe you should provide reasons for the delay and evidence showing why the matter is urgent. 

Contact Our Immigration Barristers

For expert advice and assistance in relation to drafting Pre-Action Protocol letters and Judicial Review contact our immigration barristers in London on 0203 617 9173 or via the enquiry form below.


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