What is a Judicial Review?
Judicial review is a means by which a person, often represented by lawyers, challenges a decision of the state where there is no alternative recourse to challenging that decision. In immigration cases, for example, common cases where it would be appropriate to challenge by way of Judicial Review are visit visa applications (for which there are no rights to administrative review or appeal rights). In a visit visa challenge, it is only worth challenging a decision by judicial review, where it is apparent that regardless of how you approached a subsequent application, you would still be refused. So if you made a visit visa application and the Entry Clearance Officer refused your application on the basis of a fraudulent document, for example, then you should challenge that refusal (provided you have grounds to challenge) rather than reapply for another visit visa. The only route open to challenge a visit visa application is to make an application to judicially review that decision. It is worth noting that this will not always be the correct course of action. If for example, the application was refused as the Entry Clearance Officer felt that insufficient evidence of finances had been provided, then the judicial review is unlikely to be the best option. Re-application is likely to be cheaper, quicker and carry fewer risks.
How does a Judicial Review work?
A judicial review application allows an individual or body to challenge a decision that is illegal, irrational or unfair by making an application in either the Upper Tribunal or the High Court. Once an application is lodged at court, a judge makes a decision on permission to proceed with Judicial Review. Sometimes this is done on its own, sometimes as a ‘rolled-up hearing’, where the permission application and substantive application are heard at the same time.
A judge, or panel of judges, then makes a decision on whether the decision was illegal, irrational or unfair.
There are only a limited number of orders that a judge can make, and it is important that, if you are embarking on this process, you distinguish it from an appeals process. In an appeal, the judge is effectively considering the evidence and deciding the matter on their own. In a judicial review, it is usually the case that a decision will be made on whether the decision is illegal, irrational or unfair, and order will often be made ‘quashing’ that decision. A quashing order is an order which makes it as if that decision had never been made. It is then up to the Home Office to remake this decision.
Who is Gina Miller?
Judicial review is not only for challenging Home Office decisions. Notably, Gina Miller made judicial review applications in which actions by the government were found to be illegal.
Gina Miller successfully challenged the legality of triggering Article 50 without the consent of MP’s and Peers.
She was once more successful when she challenged the government on their decision to prorogue parliament towards the end of 2019.
Since that decision however the Conservative government have gone on to have a landslide victory at the UK general election which was held in December 2020. They gained 365 seats with a number of those coming from the deindustrialised North and Midlands, the former Labour heartland. With a newly empowered Conservative government, this could spell real trouble for Judicial reviews…
Click here to read Part 2 of this article.
Westkin Associates is one of the few law firms regulated by the Office of the Immigration Services Commissioner to the highest level and with the power to work on Judicial reviews. We are also regulated by the SRA (Solicitors Regulation Authority).