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Immigration Judicial Review: How The Procedure Works

Judicial Review remains an important option for Immigration Lawyers against immigration decisions made by the Home Office or UKVI. Westkin Associates are regulated to undertake Judicial Review matters through our JRCM licence and we can also advise if our Immigration Solicitor’s firm, Westkin Law, is a better fit for you.

What is a Judicial Review?

A Judicial Review is a type of legal action brought in the High Court. It is specifically used to challenge the decision of a public body (such as the Home Office) before the courts. A judicial review can be used in area of law, but in Immigration Law, a special procedure applies.

On what grounds can an Immigration Judicial Review be brought?

Essentially, a challenge on Judicial Review grounds must be brought on either illegality, irrationality and procedural impropriety. These grounds must be made out in the Pre-action protocol letter and then the claim form.
Illegality is relatively simple, it is where the public body had made a decision which has broken a prescribed law. An example for this would be where the Home Office have made a decision and the reasons given for that decision contravene the Immigration Rules. Irrationality refers to decisions which might not on the face of it breaks any aspect of Immigration Law, but simply has no logic. If for example a dependent application is granted when the main applicant is refused. Procedural Impropriety occurs when the process followed by the decision maker is flawed. For example if a claim is refused before the documents were considered. 

What is the time limit for an Immigration Judicial Review?

All applications for judicial review must be lodged within 3 months of the decision that is being challenged. Please be aware that the pre-action protocol does not count as an application so does not pause the deadline for lodging a judicial review application with the High Court. The Civil Procedure rules also make clear that the deadline is that the claim” must be filed promptly” and in any event not later than three months. So the claim should be submitted without reasonable delay.

What is a pre-action letter in an Immigration Judicial Review?

Aside from emergency applications, applications for judicial review must be preceded by a pre-action letter, which is part of the pre-action protocol. This is essentially a letter from the Immigration Lawyers to the lawyers from the Home Office (the Government Legal Department) which sets out the grounds for judicial review, so that the Home Office can decide if they can resolve the matter without recourse to the Claimant’s Immigration Solicitors filing an application.

The pre-action letter should be written clearly and set out the potential grounds. If the grounds change between the pre-action protocol and the claim form, then this may have a potential impact on costs.

How do I File an Immigration Judicial Review?

Once a Pre-action protocol is submitted, and responded to, then the Judicial Review claim form can be submitted at the High Court. 

The Home Office can then choose to defend the matter or to acknowledge the matter and delay the defence. If they choose to eventually defend the matter, then claim form goes to be considered by a High Court judge. He can then decide the matter in the claimant’s favour or refuse.

What if my judicial review is refused?

If the judge refuses the application made in the claim form, then the matter can be renewed orally. This is where the matter is listed before the High Court and usually barristers attend to argue the matter before a High Court judge. It should be noted that these hearing are seeking to get permission for a judicial review, not the judicial review itself, which if permission is granted is will be heard at a new court hearing. In our experience if permission is granted, the Home Office will often concede the matter before a full hearing.

If you feel you have received a decision which is unfair please contact us via phone, email or enquiry box above.

Westkin Associates

info@westkin.com

5th Floor, Maddox House,
1 Maddox Street
Mayfair
London
W1S 2PZ
United Kingdom
0207 118 4546

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