Have you read part 1? Click here to read part 1.
The “1%” lie!
So, you may be getting a sense of why the government doesn’t like judicial reviews. One way that judicial reviews have been discredited in recent years by government officials by stating that few have led to success. Statistics released by the MOJ for 2013 and 2014 stated that only 1% of judicial reviews were successful. This presents a statistic which is entirely misleading. The lodging of a judicial review application in immigration cases requires that the Defendant, in immigration cases this will usually be the Home Office, must lodge an acknowledgement of service stating whether they intend to defend the claim and if so their grounds for defence. That acknowledgement of service, in most cases, is the Home Office, stating that they reconsider the case if you agree to withdraw the Judicial Review application. They will also, usually after a short negotiation, agree to pay your costs. We, therefore, succeeded in our judicial review and the Home Office paid our costs, does this show up as part of the 1%? Of course not. It would show up as a judicial review that had been withdrawn by the claimant.
This attack on judicial review is ongoing. The conservative manifesto announced plans to review the Human rights Act and judicial review and so expect to see changes to this coming month.
Furthermore, the current Boris Johnson government is looking more and more aggrieved with the Judicial Review Process. This week a charter flight to Jamaica removing deportees who had committed criminal offences and had exhausted their appeal rights in the UK, had many deportees removed from the flight due to last-minute injunctions and legal challenges to prevent the removal of migrants. Many of the challenges came from detainees who had been held in removal centres where large scale mobile phone outages had impacted detainees right to legal advice, as they had been unable to contact their lawyers or obtain legal advice. This meant that many people intending to be deported were not, as injunctions were made by High Court judges which prevented their deportation.
It is relatively expensive for the Home Office to charter flights, and they like them to be filled to maximise value for money. It’s likely to particularly irk the government, that the successful challenges to remove many deportees from the flight concerned the double whammy of judicial review AND human rights.
When might you have a judicial review case?
The easiest way to determine whether you have a judicial review case or not is by considering whether you have another way of challenging the decision made against you.
Have you been offered a right to Administrative Review? Have you lodged a Human Rights application which attracts a right of appeal? In which case you have a legal challenge which means you must exercise this first, prior to lodging a judicial review application. If you’ve exercised your right to administrative review and the decision hasn’t been overturned, then you have a right to challenge by way of judicial review.
The first step in making a judicial review application is to lodge a letter before action, also known as a pre-action protocol letter. This is a letter that outlines to the Home Office all your reasons for challenging their decision and the remedy you seek to challenge their decision. This is usually substantively considered by the Home Office and often results in the decision being overturned, without you even having to apply for judicial review.
The pre-action protocol letter is not just important as a step which can potentially overturn the case at an early stage, and it is also important for costs. If you have given the Home Office the opportunity to overturn your case with the full facts before them and they have chosen not to do so, then you have a better opportunity to obtain costs against the Home Office further down the line.
Westkin Associate Services
Please do contact us at Westkin so we can advise on:
- Whether Judicial Review is the best course of action;
- Steps we might take to avoid going to Judicial Review whilst resolving your case in your favour;
- Lodging a Judicial Review application.
Call: 020 7118 4546