Grounds for Immigration Judicial Review Explained
Under UK law, it is possible to request a judicial review of an immigration decision made by the Home Office on three main grounds; illegality, irrationality, and procedural unfairness. Judicial review is generally considered to be the option of last resort where there are no other ways to challenge an adverse decision made by the Home Office (e.g. a visa refusal or cancellation of leave). In this article, we will take a closer look at the judicial review process and also outline the grounds for a judicial review in the UK and how these may apply in immigration cases.
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What is an Immigration Judicial Review Application?
An immigration judicial review is a legal process in which a judge evaluates the legality of a decision or action made by the Home Office or Immigration Tribunal. The judge examines the procedure used by the Home Office or Tribunal to reach an immigration decision rather than the decision itself. This type of review challenges the process rather than the outcome. It is a final resort after all other complaint or appeal options have been exhausted. Keep in mind that the Home Office will not inform you of your right to request a judicial review, and the process can be costly, risky and complicated. It’s advisable to seek advice from a specialised lawyer before proceeding with a judicial review application.
Is an Immigration Judicial Review the Right Process for you to pursue?
Before applying for immigration judicial review, it’s important to consider if it’s the appropriate legal process for your situation. If you believe the Home Office’s decision in your case was incorrect, rather than unlawful, you may be able to file an Immigration Appeal with the First-tier Tribunal. An appeal is a full hearing of a case where a judge can either overrule the decision or send it back to the Home Office to be redone. You will be notified of any right of appeal in the decision.
If you wish to contest the merits of a decision made by the First-tier Tribunal, an appeal to the Upper Tribunal may be a better option than judicial review.
Additionally, if you do not have the right of appeal, you may be able to challenge a casework error in the decision through an application for an administrative review. This is an internal review by the Home Office that examines errors you have pointed out in your request without an oral hearing. You will be notified of any right for Administrative Review in the decision.
What constitutes an Immigration Judicial Review Application?
Here are some examples where someone might be able to pursue a judicial review.
- Your immigration application was rejected by the UK Home Office, and you have been given no right to appeal it.
- Your asylum or human rights application was rejected by the Home Office, and you were not given a right to appeal.
- Your case needed additional information, you provided it to the Home Office, but it was rejected, and you were not given a right to appeal afterwards.
- Your appeal to the First-tier Tribunal was rejected, and your request for an appeal to the Upper Tribunal was denied by both the First-tier Tribunal and the Upper Tribunal, but you still think the decision on your immigration application was unfair, and you want to challenge it.
- You have been detained by the UK immigration authorities, and you are desperate to challenge the legality of your detention.
- You are going to be deported from the UK, and you want to challenge an upcoming removal or deportation order.
All of the scenarios above would qualify you for a judicial review. However, if in doubt, do not hesitate to contact us to describe your case in detail.
What are the Grounds For an Immigration Judicial Review in the UK?
Ground 1) Illegality
One of the primary grounds for judicial review is illegality. Illegality may arise when a Home Office case officer (or another decision-maker) either incorrectly interprets the law, exercises a power incorrectly, or improperly purports to exercise a power that they do not have (this is referred to as acting “ultra vires”).
As Lord Diplock stated in the case of Council of the Civil Service Unions v Minister for the Civil Service (1985), “By illegality’ as a ground for judicial review, I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it”.
Examples of illegality in immigration decisions may include where:
- The Home Office unlawfully detains someone
- An immigration decision is made by the wrong person within the Home Office
- A Home Office case officer incorrectly applies the Immigration Rules part 9: grounds for refusal – e.g. by refusing a visa on the grounds that an applicant is a persistent offender when they are not, or
- A Home Office case officer does not take into account mitigating facts or takes into account irrelevant facts when making a decision
Ground 2) Irrationality
Another ground for judicial review is irrationality. An ‘irrational’ decision is traditionally one that “is so unreasonable that no reasonable authority could ever have come to it”. This is also called the ‘Wednesbury unreasonableness’ test, referring to the case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1947). In legal practice, the courts are generally unwilling to find public body decisions irrational and, hence do so rarely. This is largely because it is often extremely difficult to prove that a public body such as the Home Office acted irrationally or unreasonably when making a decision. In the Wednesbury case, the Court of Appeal outlined several potential factors that might make a decision irrational, including:
- Bad faith
- Dishonesty
- Consideration of irrelevant factors or “extraneous circumstances.”
- Failure to consider relevant factors, and
- Disregard of public policy.
To reason that a decision was irrational, it may be necessary to prove that the Home Office case officer acted in bad faith or dishonestly. The other challenge when using the ground of irrationality is that the above factors overlap with the grounds of illegality and procedural unfairness.
2.1) Irrationality and Proportionality
When determining if an immigration decision was irrational or unreasonable, it may be necessary to ask whether it was also proportionate. The question of proportionality is particularly relevant when it comes to Human Rights, EU law, and Article 8 ECHR cases. ‘Proportionate’ in this context means that the decision is proportionate to the aim it is seeking to achieve. As such, a decision that is unnecessarily onerous or oppressive may not be proportionate. Consideration has now been given within judicial circles as to whether proportionality should be a separate ground for judicial review.
Ground 3) Procedural Unfairness
The ground of procedural unfairness / procedural impropriety may apply if a Home Office case officer:
- Fails to follow the relevant statutory procedures when making a decision
- Follows the relevant rules or procedures, but the rules result in an individual being deprived of the right to be heard or informed of an event that is significant to them
- Fails to observe the principles of “natural justice” when making a decision – this may occur, for example, if a case officer shows apparent bias when making a decision. The requirements of natural justice typically mirror the right to a fair trial under Article 6 of the ECHR.
Typically, procedural grounds for judicial review apply to anyone who is affected by an immigration decision and should be given an opportunity to participate in the decision-making process. In practice, whether procedural unfairness can be used as a ground for judicial review of an immigration decision will depend on the circumstances and facts of the case.
What are the Immigration Judicial Review Timescales?
When it comes to filing an immigration judicial review, it’s crucial to do so in a timely manner. For decisions made by the Home Office, the application must be sent or delivered to the Upper Tribunal within 3 months of the decision being challenged. For decisions made by the First-tier Tribunal (Immigration and Asylum Chamber), the application has to be made within 1 month from the date on which the written reasons for the decision were sent or notification of an unsuccessful application to set aside the decision was received.
These time constraints emphasize the importance of acting quickly and seeking specialist advice from an immigration judicial review lawyer as soon as you believe your case is suitable for judicial review.
Applying for a Judicial Review in an Immigration Case
To apply for judicial review in an immigration case, most applications are filed with and decided by the Upper Tribunal (Immigration and Asylum Chamber). However, some challenges must be filed with the Administrative Court (a branch of the High Court) instead of the Upper Tribunal. These include:
- Challenges to the validity of immigration rules or legislation
- Challenges to the lawfulness of detention
- Challenges to a sponsor not being included on the register of sponsors maintained by UK Visas and Immigration
- Challenges to a decision to refuse British citizenship
- Challenges to a decision to refuse asylum seeker support
- Challenges to a decision made by the Upper Tribunal (Immigration and Asylum Chamber)
- Challenges to a decision made by the Special Immigration Appeals Commission
- Challenges for a declaration of incompatibility under section 4 of the Human Rights Act 1998
- Challenges to a decision that has been certified as in the interests of national security
- Challenges to a decision by a competent authority regarding being a victim of trafficking.
What is the Immigration Judicial Review Process?
The process of applying for a judicial review through the Upper Tribunal (Immigration and Asylum Chamber) in relation to a decision of the Home Office involves several steps as outlined below.
- Pre-action protocol letter: Before initiating judicial review proceedings, you should send a Pre-Action Protocol Letter (or Letter Before the Claim) to the Home Office. This letter explains why the decision is unfair, irrational, unlawful or violates human rights and warns that judicial review proceedings will commence if the decision is not withdrawn. The Home Office will usually review the decision within 14 days of receiving the letter.
- Issuing judicial review proceedings: If the Home Office does not withdraw the decision, the next step is to apply to the Upper Tribunal (unless the case falls under the jurisdiction of the Administrative Court) for permission to apply for judicial review of the decision being challenged. This must be done promptly and within three months of the original refusal decision or within one month of the written reasons of the decision of the First-tier Tribunal (Immigration and Asylum Chamber) being sent when these are being challenged.
- Permission to apply for judicial review: A judge of the Upper Tribunal will review the application and the Home Office’s defence statement and decide whether to grant permission for judicial review (if an arguable case is made). If permission is granted, a full hearing will be scheduled. If permission is denied, the case will be dismissed.
- Full hearing: If permission is granted, a full hearing will be scheduled where both parties can present evidence and arguments. The immigration judge will then make a final decision on the case.
- It’s important to note that the Pre-Action Protocol Letter stage does not affect the time limit for lodging a judicial review claim, and it is crucial to seek the help of an immigration lawyer specialising in judicial review.
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What are the Immigration Judicial Review Processing Times?
The time it takes to process an immigration judicial review can vary depending on the specific case. The most significant factor that affects the processing time is the stage at which the review is conceded or decided.
If the Home Office agrees to reconsider your application and overturns its decision following the submission of a Pre-Action Protocol Letter, you may receive a response within 14 days. On the other hand, if the Home Office chooses to defend its decision at all stages and the case proceeds to a full hearing, it may take at least 12 months to reach a conclusion. However, this will not affect your stay in the UK as you are already processing your case.
What Happens if My Immigration Judicial Review is Successful?
If your immigration judicial review is successful, and the decision by the Home Office is found to be unlawful, unfair, irrational, or contrary to human rights, the decision will not typically be remade by the judge. Instead, it will usually be sent back to the Home Office (or the court that made the error of law) to reconsider the decision, this time in concordance with UK law.
If the Upper Tribunal determines that the Home Office acted unlawfully and made an error in judgement, the judge may take one of the following actions:
- Issue a mandatory order requiring the Home Office to take a specific action within a set period of time.
- Issue a prohibitory order preventing the Home Office from taking a specific action.
- Issue a quashing order overturning or undoing the Home Office’s decision.
- Issue an injunction requiring the Home Office to take or refrain from taking specific action while a decision is being made.
- Make a declaration stating the law when there is a dispute.
- The Home Office or court may then have the opportunity to make the same decision again, but this time by following the proper process and considering all relevant case law or evidence reasonably.
What Happens if My Judicial Review was Unsuccessful?
If your immigration judicial review is not successful, you may have the option to appeal the decision to the Court of Appeal. It is recommended to seek legal advice from a specialist immigration lawyer who is well-versed in the judicial review process when considering an appeal. Our team at Gulbenkian Andonian Solicitors are one of the best firms in the UK for immigration-based judicial reviews so do not hesitate to reach out to us if you want to further challenge your decision.
Final Words
Determining if you have any grounds to make an immigration judicial review application to challenge a Home Office decision is a complex area of immigration law that requires specialist expertise and experience. In addition, the process of judicial review is itself lengthy and complex, requiring strict adherence to the pre-action protocol and procedure rules. To give yourself the very best chance of reaching a successful outcome in a judicial review, it is vital that you engage an immigration Solicitor who is experienced in challenging Home Office decisions.
Gulbenkian Andonian specialises in the most complex and urgent immigration applications, appeals and reviews. Our immigration Solicitors have successfully assisted many individuals and their family members in overcoming overwhelming odds to remain in the UK; let us do the same for you. Call us at +44 (0) 207 269 9590 or fill out the form below to discuss your matter with one of our friendly and empathetic team.
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Dr Bernard Andonian – the Co-Founder of Gulbenkian Andonian Solicitors, is an experienced Immigration Solicitor, former Judge, and recipient of a PhD in Law from the University of West London. He has over four decades of experience practising UK Immigration, Human Rights and Civil Litigation Law. He has served on the Law Society Immigration Law Panel, achieved numerous groundbreaking decisions in higher courts and is featured in the Legal 500’s Hall of Fame.
