What is a Pre-Action Protocol Letter?
Pre-action protocol is the conduct that the court expects both parties to undertake before commencing proceedings, as set out in the Civil Procedure Rules (CPR). A pre-action protocol letter, or PAP, is a legal letter written to the Home Office in order to try and resolve a dispute before court proceedings are commenced. It is sometimes also referred to as a ‘letter before claim’ or ‘letter before action’.
The Pre Action Protocol letter highlights the key matters that would be raised. It sets out the legal grounds and demonstrates the ways in which the decision was unlawful.
Judges will expect the parties to have complied with the pre-action protocol, if possible, before lodging a claim for judicial review.
Failure to follow this protocol has legal consequences. One of the most important of these is that if either party to a judicial review fails to follow the protocol they can be made to pay theirs and the other sides’ legal costs, even if they win the case.
Purpose of a pre-action protocol for the purposes of an immigration matter
The purpose of a pre-action protocol 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 broader objectives of the pre-action rules are to facilitate:
- exchanging information and understanding each other’s position;
- trying to settle the issues without proceedings;
- supporting the efficient management of proceedings where litigation cannot be avoided; and
- reducing the costs of resolving the dispute.
What happens after sending a Pre-Action Protocol Letter?
If the Home Office have not responded within 14 days of receiving the Pre-Action Protocol Letter, you will then be able to lodge a Judicial Review. You can then make an application to the Upper Tribunal (Immigration and Asylum) Chamber for permission to apply for Judicial Review. This application is normally made on papers and without a court hearing, the court will grant permissions and refusals on paper.
The Home Office will then have to decide whether they want to defend their decision or concede the case and offer to review their decision. They have 21 days in which to respond and if they do not respond in time, the Judge may decide the case without their input, or may grant them an extension of time. However, they cannot simply ignore the legal claim.
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.
Contact our Immigration Barristers
For expert advice and assistance in relation to submitting a Pre-Action Protocol letter, or with an immigration appeal or immigration judicial review, contact our immigration barristers in London on 0203 617 9173 or via the enquiry form below.