New Court Guidance on making an Immigration Judicial Review Application

The Administrative Court has updated its guidance on making an Immigration Judicial Review Application. The New Administrative Court Guidance makes it clear that the intending claimant should think carefully about the implications of making an Immigration Judicial Review Application. In particular, the new court guidance sets out the complex and extensive number of general and personal considerations the Applicant must take into account before submitting an Immigration Judicial Review Application as well as the practical steps in doing so. Applicants must be aware that failure to comply with appropriate time limits and court procedures can have serious costs consequences. A successful Immigration Judicial Review Application can lead to the quashing of the original decision or a mandatory order to reinstate a previously held immigration status, therefore it is of utmost importance to use professional legal representation to make sure your Immigration Judicial Review Application has merits and is litigated in accordance with the appropriate time limits and court procedures.

What is an Immigration Judicial Review Application?

An Immigration Judicial Review Application is a type of legal challenge where an individual asks 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 such as the Home Office. Please note that an Immigration Judicial Review Application should be treated as a last resort measure and must be made where no other alternative remedy is available.

Time limit and Appropriate Jurisdiction to make an Immigration Judicial Review Application

In practice, an Immigration Judicial Review Application must be submitted as soon as possible or at the latest within 3 months of the date of the Home Office decision or other decision that is subject to challenge. It is very important to adhere to these time limits otherwise you run the risk of not being able to bring an Immigration Judicial Review Application at all.

An Immigration Judicial Review Application should be submitted to the Administrative Court where the decision under challenge relates to:

  • Validity of Immigration Rules;
  • Lawfulness of detention;
  • Inclusion on register of licensed Tier 2 or Tier 4 Sponsors;
  • British citizenship;
  • Asylum support of accommodation;
  • Upper Tribunal determination;
  • Special Immigration Appeals Commission findings; and
  • Declaration of incompatibility under s.4 HRA 1998.

Any other Immigration Judicial Review Application should be submitted to the Upper Tribunal.

Stages for making an Immigration Judicial Review Application

There are essentially 3 main stages for making an Immigration Judicial Review Application:

  • Pre-Action Stage;
  • Permission Stage; and
  • Hearing Stage.

Pre-Action Stage

This requires an Applicant to set out the elements of the Immigration Judicial Review Application by submitting a Judicial Review Pre-Action Protocol Letter to the Home Office at its designated department dealing with Immigration Judicial Review Applications only. The Judicial Review Pre-Action Protocol 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.

Permission Stage

This requires an Applicant to apply to the Administrative Court or Upper Tribunal for permission to make an Immigration 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.

Hearing Stage  

If permission to make an Immigration Judicial Review Application 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 Immigration Judicial Review Application being refused as well as adverse costs orders. At the substantive hearing, the Administrative Court or Upper Tribunal considers the Immigration Judicial Review Application fully with all the evidence provided and if successful grants the Applicant appropriate relief.

Types of Relief Granted for Successful Immigration Judicial Review Application

It is important for an Applicant to decide whether an Immigration Judicial Review Application is appropriate and will provide the remedy sought. In a successful Immigration Judicial Review Application, the Administrative Court or Upper Tribunal can grant the following types of relief:

  • quashing order – ‘quashes’ a decision, which means that the decision is revoked and no longer has any legal effect and must be taken again, sometimes within a particular period;
  • prohibiting order – prevents the Home Office from taking the action specified in the order, for example, removal;
  • mandatory order – compels the Home Office to take the action specified in the order, for example, to accommodate the claimant;
  • declaration – stating the legality of a decision, policy or legislative provision; and
  • damages – the award of money to compensate for any loss caused or as punitive damages in order to punish the defendant for his unlawful action.

In most cases where there is no statutory right of appeal given, the outcome of a successful Immigration Judicial Review Application is that the Applicant is granted a statutory right of appeal, which must then be pursued separately in the Immigration Tribunal.

The New Administrative Court Guidance provides detailed information on the Immigration Judicial Review Application process and outcomes. Please find a full copy of the New Administrative Court Guidance here:  The Administrative Court Judicial Review Guide 2017 LEXVISA Solicitors and Barristers.

Using Legal Representation to Make an Immigration Judicial Review Application

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 make an Immigration Judicial Review Application.

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 your application succeeds, all necessary documents must be provided.

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 meets the Immigration Rules.

Successfully Make an Immigration Judicial Review Application

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 visa and immigration application before your matter even reaches the Home Office UK Visa & Immigration department. We can assist you with the preparation of your immigration and visa application 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.  We are minutes away from the Immigration and Asylum Tribunal, the Royal Courts of Justice and other central London courts.

Preparation is the key to successful immigration applications. 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.

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

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