Case Study: Can I issue Judicial Review Proceedings against the Home Office?

As many applicants and immigration practitioners know, the Home Office can often make questionable decisions or subject Applicants to painstaking delays in deciding applications or issuing residence documents; as was the issue in the case of Husson v Secretary of State for the Home Department [2020] EWCA Civ 329 (“Husson”). The Home Office had granted the Appellant leave to remain in the UK but he then had to wait over 2 years to be sent his Biometric Residence Permit (“BRP”), which then only had 5 months validity remaining. The Appellant was unable to work during the period he was waiting for his BRP so unfortunately ended up in debt in order to survive, so he decided to bring Judicial Review proceedings against the Home Office for the unreasonable delay and to seek compensation. The immigration Judicial Review process should only be started as a last resort as it can become costly. Our Immigration Solicitors in London have experience with successful Judicial Review claims and are able to arrange an initial consultation to discuss your case in more detail and determine whether or not your claim has merit and the likelihood of success.  

Judicial Review case study: Background and facts of the case

The Appellant was a Mauritius national who was granted further leave to remain in the UK on 20 May 2016 until 20 November 2018. In the Home Office decision letter it stated that his BRP would be sent to him under a separate cover within 7 days. However, the Appellant only received his BRP on 19 June 2018, with only 5 months validity left. No explanation or apology was given by the Home Office as to the delay. During the two years that the Appellant was unsuccessfully chasing the Home Office to issue his BRP he was unable to work as employers are legally required to see an original valid BRP in confirmation of a migrant’s right to work in the UK. As a result of being unable to gain employment, the Appellant naturally found himself falling into debt in order to survive. Therefore once the Appellant had his BRP, he then sought compensation from the Home Office, arguing that there had been a breach of his Article 8 ECHR rights and that the Home Office had been negligent and breached its duty of care to him. The proceedings against the Home Office got off to a slow start for the Appellant and at one point the Home Office tried to argue that the Appellant could have used his passport as evidence of his right to work; however, this goes against Home Office right to work policy and the Home Office eventually conceded on this point.

The Court of Appeal allowed the appeal and referred the case back to the Upper Tribunal to hold a substantive Judicial Review hearing.

Access the full judgement here: Husson v Secretary of State for the Home Department [2020] EWCA Civ 329 | LEXVISA Immigration Solicitors in London

What is a Judicial Review?

A Judicial Review claim is a type of legal challenge where an Applicant can ask the High Court (Administrative Division) or Upper Tribunal to review the lawfulness of a decision, action or failure to act of a public body or government department (i.e. the Home Office). A Judicial Review should only be sought as a last resort and all other appeal rights must be exhausted. An Immigration Judicial Review claim must be submitted as soon as possible and within 3 months of the date of the Home Office decision or other decision that is subject to challenge. Decisions or actions that can be challenged by way of Judicial Review include but are not limited to:

  • an unsuccessful administrative review;
  • Home Office delay in making a decision or failure to make a decision;
  • refusal of any immigration application with no right of appeal, i.e. visitor visa application;
  • unlawful detention or declaration of illegal entry;
  • refusal to accept a fresh claim for asylum or failure to grant permission to work to an asylum seeker; and
  • curtailment of leave to remain in the UK on public policy or deception grounds.

Judicial Reviews can be a lengthy process and it is usually broken down into stages; meaning your Judicial Review claim may be resolved before being heard in front of an independent Judge.

What are the stages of a Judicial Review?

The three stages to a Judicial Review are as follows:

  1. Pre-Action Stage – Also referred to as a Letter Before Action; Applicants set out the elements of the Judicial Review Application by submitting a Pre-Action Protocol (“PAP”) Letter to the Home Office at its designated department dealing with Judicial Review claims. The PAP Letter must be comprehensive and follow a defined format as set out by the Administrative Court in its new court guidance and in the CPR. Applicants should ensure that the Pre-Action Stage is properly completed before proceeding to the Permission Stage to avoid adverse costs orders.
  2. Permission Stage – If the Applicant receives no or an inadequate response to the PAP letter, the Applicant then applies to the Administrative Court or Upper Tribunal for permission to make a Judicial Review Application. The permission application is first considered on papers and if refused, an Applicant has the right to request an oral hearing for the permission application to be considered again. If permission is granted, then the Immigration Judicial Review Application can proceed to the Hearing Stage.
  3. Hearing Stage – If permission to make a Judicial Review claim is granted, the Administrative Court or Upper Tribunal provides extensive directions for the matter to proceed to a substantive hearing. It is important to ensure that all directions made by the Administrative Court or Upper Tribunal are complied with before a substantive hearing is held to avoid the Judicial Review application being refused as well as adverse costs orders. At the substantive hearing, the Administrative Court or Upper Tribunal considers the Judicial Review application fully with all the evidence provided and if successful grants the Applicant appropriate relief.

How can our Immigration Solicitors in London assist with a Judicial Review claim?

Due to inherent complexities of a Judicial Review claim, we highly recommend that you seek advice from our Immigration Solicitors in London in order to assess your eligibility of filing an Immigration Judicial Review and the merits of success. Further, specialist Immigration Judicial Review advice should also be sought in exploring whether any alternative remedies are available and whether the matter can be resolved by utilising the Pre-Action stage. Making a Judicial Review claim that is totally without merit can have significant cost consequences for the Appellant.

Using our Immigration Solicitors in London to bring about a Judicial Review

Legal representatives, such as our specialist immigration and visa law firm, are qualified to advise you on immigration law and your immigration status. It is possible to instruct an immigration and visa legal representative to submit a Judicial Review claim.

Caseworkers at the Home Office are trained to reject applications which are improperly prepared, for example by failing to provide the correct supporting evidence. In order to ensure Judicial Review has merit, a consultation needs to be arranged with our immigration solicitors in London, as well as Counsel.

This can be a significant administrative task and you will need to submit the correct documentary evidence. The UK Immigration Rules are complex and a legal representative can help ensure that your application has a chance of success.

Successful Judicial Review claims with our Immigration Solicitors in London

Our team of solicitors and barristers are specialist immigration lawyers who act in your best interest. We offer a client-tailored approach from the outset. From the very first meeting, we will be able to advise you in respect of your immigration status and the merit of your application before your matter even reaches the Tribunal (Immigration and Asylum Chamber). We can assist you with the preparation and submission of your Judicial Review claim and ensure that you meet all the requirements of the relevant rules.

We are based in the legal epicentre of London, just across the road from the Royal Courts of Justice in order to ensure we get the best results for our clients. LEXVISA is just minutes away from the Immigration and Asylum Tribunal, the Royal Courts of Justice and other central London courts.

Preparation is the key to a successful application. Our UK immigration and visa solicitors are here to guide you through the complex immigration rules and requirements. If you wish to meet one of our lawyers, please call our Immigration Team so we can assess your case and arrange your legal consultation to discuss your Judicial Review claim.

Contact our London immigration solicitors on 02071830570 or complete our contact form.

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