What is the difference between Administrative Review and Judicial Review?
The legal right to appeal in various immigration cases has been persistently peeled away in recent years. This has seen an increase in immigration cases going through the processes of Administrative Review and Judicial Review.
The Administrative Review and Judicial Review processes exist in order to ensure that errors committed on cases by public bodies, such as the Home Office can be exposed and a solution found.
So what is the difference between the two processes, and which avenue should be pursued first?
Administrative Review
Which decisions are eligible for Administrative Review?
Sections AR3.1 to AR3.3 in Appendix AR of the Immigration Rules refer to which decisions are eligible for Administrative Review.
If eligible to apply for Administrative Review, this right should be stated in the decision letter received from the Home Office. Were the case to proceed to Administrative Review, it would enable the applicant to expose a case working error committed by the Home Office, that they consider affected the decision received. A case working error is defined as ‘Where the original decision maker’s decision…was incorrect’ or ‘where there has been an error in calculating the correct period or conditions of immigration leave either held or to be granted.’ More detail on the remit of a ‘case working error’ can be found at AR2.11
How to Apply for Administrative Review?
The Immigration Rules provide different time limits and criteria for the submission of applications, depending on the substance of the application that was initially made to give way to the eligible decision that is considered the subject of a potential Administrative Review.
According to paragraph 34R.(1) of the Immigration Rules, an applicant who is in the UK and not detained, must bring an application for Administrative Review no more than 14 calendar days after receipt by the applicant of the notice of the eligible decision. However, a tighter time limit applies to an applicant who is in detention in the UK under the Immigration Acts, where they must bring an application for Administrative Review no more than 7 calendar days after receipt by the applicant of the notice of the eligible decision. Where the applicant is outside of the UK, the prospective applicant must bring an application for Administrative Review no more than 28 calendar days after receipt by the applicant of the notice of the eligible decision. Where the eligible decision is a grant of leave to remain, the applicant has no more than 14 calendar days after receipt by the applicant of the biometric immigration document which states the length and conditions of leave granted to bring an application for Administrative Review. It is vital to heed the above deadlines, as failure to make the application in time, may render the application invalid, as stated in paragraph 34M of the Immigration Rules. Attention must also be given to the elected method of submission, which impacts the date an application is deemed to have been made. Sections 34G(i) to 34G(iv) list the stage at which an application is considered to have been made.
What will be considered at the Administrative Review?
Should the matter be considered eligible for Administrative Review, the alleged case working error will proceed to be assessed, through a consideration of the evidence that was before the decision maker when the original decision was made. If additional evidence exists to go to prove the case working error, this may also be considered, but only as per the exceptions listed in AR2.4.
What are the Potential Outcomes of an AR?
If an Administrative Review is successful, the eligible decision may be withdrawn. If it is not successful, the eligible decision may remain in force, with the reasons for the decision either being maintained, altered, diminished or added to.
Judicial Review
Unlike Administrative Review which reviews case work errors in general, Judicial Review has specific categories for review. The categories which are generally recognised for Judicial Review are: illegality, procedural irregularity, and unreasonableness. Fundamentally, Judicial Review can only be pursued once all other avenues of appeal have been exhausted. For this reason, Administrative Review must be pursued before applying for Judicial Review.
It is also important to note that an application for Judicial Review must be made ‘promptly, and in any event not longer than 3 months from the date of the decision, action or omission to which the application relates’ (CPR 54.4(1)). In addition to this stringent time limit, there are also procedural requirements which should be fulfilled, including pre-action protocol letters. More information on Judicial Review can be found in a separate blog post, published on our Knowledge Centre, by following this link.
Contact our Immigration Barristers
For expert advice and assistance regarding your application for Administrative Review or Judicial Review, contact our immigration barristers in London on 0203 617 9173 or via our enquiry form below.
