Top tips for judicial review

Judicial review is an important remedy and is used to challenged decisions made by public bodies, or those made on their behalf. In immigration cases, it can be used to challenge decisions which do not provide a statutory right of appeal.

Whilst important, an application for Judicial Review should only be used when it is appropriate to do so. A decision can only be challenged by way of Judicial Review if the decision is unlawful, and there is no alternative remedy.

The lawfulness of a decision can be challenged on numerous grounds, these can usually be categorised into illegality, irrationality and unfairness. In Immigration cases, the decision-making body is usually the Home Office or the Entry Clearance Officers (through the Foreign and Commonwealth Office).

What is the judicial review procedure

Judicial review proceedings are lodged before the High Court or the Upper Tribunal (for most immigration matters). In most cases, the Claimant must first seek permission from the relevant Court. This application must be made as soon as possible, but no later than 3 months before the relevant decision is made.

The application also requires the pre-action protocol procedure to be followed, in most cases. This means the proposed Claimant should send the Defendant a letter before action which complies with the Pre-Action Protocol on Judicial Reviews. This letter should contain specific information such as an outline of the grounds for Judicial review and must also provide sufficient time for the proposed Defendant to respond.

Both parties have an ongoing duty to review the merits of the case and must take necessary action if they consider that the merits of their case fall below the necessary threshold.

If there is no response to the Pre-Action Protocol within the specified timescale, or the response is negative, the proposed Claimants may then proceed to lodge an application for permission for Judicial review, if they consider there still are sufficient merits to proceed.

The permission application is normally dealt by a single judge on papers, and a written decision is provided. If permission is granted, the matter proceeds to a full hearing and necessary directions are given.

If, however, the permission application is refused, the Claimant can request an oral permission hearing, if they still consider there are sufficient merits to do so.

Once the matter proceeds to a full hearing, the Judge can then decide an appropriate remedy for the application. In most cases, the losing party will be liable for the costs of the other party.