Overview of the UK Judicial Review
Judicial Review is a legal process used to challenge the lawfulness of a decision, action or failure to act by a public body.
In immigration cases, judicial review can be relevant where there is no adequate statutory appeal or where a decision or process is alleged to be unlawful. It is not normally an opportunity for the court simply to reconsider the merits of an immigration application.
At SWM Solicitors, we advise on immigration judicial review and can assess whether there may be grounds to challenge a Home Office decision or action.
When Might Judicial Review Be Relevant?
Judicial review can potentially arise in a range of immigration situations.
For example, it may be considered where:
- There is no right of appeal
- An administrative review has been unsuccessful
- The Home Office has failed to make a decision
- There has been an unlawful delay
- A decision appears to have been made using an incorrect legal approach
- The Home Office has failed to follow a required procedure
- A decision-maker has failed to consider relevant evidence
Whether judicial review is appropriate depends on the circumstances.
Judicial Review and Immigration Appeals
Judicial review should not normally be used simply because an applicant disagrees with the outcome of an immigration appeal.
Where a statutory appeal route exists, that route will generally need to be considered first.
Similarly, where a decision is eligible for administrative review, the administrative review process may need to be used before considering judicial review. Current Home Office guidance addresses the interaction between administrative review and judicial review proceedings.
Pre-Action Protocol
Judicial review proceedings generally involve a Pre-Action Protocol stage before court proceedings are issued.
A Pre-Action Protocol letter sets out the proposed legal challenge and gives the public authority an opportunity to respond.
The letter should identify the decision being challenged, the legal grounds relied upon and the outcome being sought.
In some cases, the Home Office may reconsider its position after receiving the challenge.
Grounds for Judicial Review
Potential grounds will depend on the circumstances.
These may include:
- Error of law
- Failure to follow a required procedure
- Failure to consider relevant matters
- Taking irrelevant matters into account
- Unlawful exercise of discretion
- Irrationality or unreasonableness
- Procedural unfairness
- Failure to act within a reasonable period
Not every error by the Home Office will necessarily provide grounds for judicial review.
Urgent Immigration Cases
Some judicial review cases are particularly time-sensitive.
This may be the case where a person is facing:
- Removal from the UK
- Deportation
- Detention
- Loss of immigration status
- Imminent removal directions
- Other urgent immigration consequences
Urgent cases may require immediate legal assessment.
Judicial Review and Removal
Where removal is imminent, the timing of any legal challenge can be critical.
The appropriate procedure depends on the decision and the stage reached in the immigration process.
A person should obtain legal advice as soon as possible rather than waiting until the day of removal.
Possible Outcomes
Judicial review does not necessarily result in the court granting the immigration status sought.
If a challenge succeeds, the court may provide an appropriate remedy, which can include requiring the public authority to reconsider the decision.
The Home Office may then need to make a new decision in accordance with the law.
How We Can Help
SWM Solicitors can assist with:
- Assessing potential judicial review grounds
- Reviewing Home Office decisions
- Considering administrative review and appeal options
- Preparing Pre-Action Protocol correspondence
- Identifying errors of law or procedure
- Advising on urgent immigration challenges
- Advising on removal and deportation matters
- Considering the appropriate next steps following a refusal
Judicial review is a specialist area of immigration law. The legal basis for a challenge should be carefully assessed before proceedings are started.