A Pre-Action Protocol for Judicial Review sets out what is considered the best practice and the steps to be taken before submitting a claim for Judicial Review. If you have received a decision from the Home Office that is unlawful, you may be able to request that the Upper Tribunal Immigration and Asylum Chamber (UTIAC) carry out a Judicial Review, but you must complete the Pre-Action Protocol before doing so. In this article, we will explain what happens during the Pre-Action phase of an immigration Judicial Review.
Table of Contents
What is an Immigration Judicial Review?
During an immigration Judicial Review, the Upper Tribunal Immigration and Asylum Chamber (UTIAC) will formally review the decision made by the Home Office if it was unlawful, irrational or unreasonable, if there is evidence of procedural impropriety and unfairness, or if the decision made breached the individual’s human rights or breached EU law. While the court cannot change the outcome, it can order the Home Office to review its decision based on its findings. A Judicial Review is seen as an action of last resort due to the time, cost, and complexity involved. Before seeking a Judicial Review, the Pre-Action Protocol must be followed.
What is the Aim of a Pre-Action Protocol for Judicial Review?
The avenue of a Pre-Action Protocol for immigration cases provides a way for parties (i.e. the Home Office and the individual concerned) to reach a conclusion without involving the courts. In particular, the Pre-Action Protocol allows parties to a potential Judicial Review claim to
- properly identify the immigration issues being disputed
- share information and documents
- decide how best to proceed
- attempt to settle the matter without legal proceedings or reduce the number of matters being disputed
- reduce the of resolving the dispute; and
- ensure that proceedings are carried out as efficiently as possible if litigation cannot be avoided.
Because the Pre-Action Protocol involves a number of steps that take time to complete, it may not be appropriate in the most urgent of immigration cases. The following sets out the steps in the immigration Pre-Action Protocol Judicial Review process.
Step 1) Alternative Dispute Resolution
The first step in the Pre-Action Protocol for Judicial Review states that Alternative Dispute Resolution (ADR) should be considered before taking any further steps. ADR spans a range of non-contentious ways of resolving disputes between parties outside of the legal system. ADR methods include negotiation and mediation. In the case of mediation, a trained and impartial mediator will work with both parties to find an amicable resolution. If Judicial Review proceedings are issued, the court may ask the parties concerned to show that they have considered ADR before going any further. In some cases, if a party does not respond to an invitation to attend ADR, this may be viewed as unreasonable by the court resulting in them being ordered to pay additional court costs.
Get Expert Advice from our Legal Team Call us on 020 7269 9590 or Fill in our form
Step 2) Gathering Documents and Information
It is important to gather any relevant information and documents from the Home Office before submitting a claim. The Pre-Action Protocol states that any requests for information and documents should be “proportionate and should be limited to what is properly necessary for the claimant to understand why the challenged decision has been taken and/or to present the claim in a manner that will properly identify the issues”. The Protocol also states that the respondent must comply with any requests unless they have good reason to do so.
Step 3) Letter Before Action
A letter before action is a key step in initiating the Judicial Review process and allows the key issues to be clearly set out with a view to avoiding litigation or at least narrowing the areas of disagreement. A Letter before Claim for Asylum, Nationality and Immigration cases sets out the following information:
- The name and address of the claimant and their authorised legal representative
- Any Home Office reference numbers
- The type of claim (i.e. Asylum, Home Office travel document, points-based immigration, family immigration, EEA, detention, nationality, sponsorship, or refusal of leave)
- Substance of the claim – including the matter being challenged, the issue, the remedy sought by the Home Office, the details of any interested parties, any information sought, ADR proposals to resolve or narrow the matter, and the details of documents considered relevant and necessary, and the
- Proposed reply date
A dependant (i.e. the Home Office) typically has 14 days to respond to a letter before action. At this stage, the Home Office may decide to concede the matter and agree to review the case, concede part of the matter, or not concede at all. The response letter may contain:
- Whether the claim is being conceded in part or not being conceded at all – this must be clearly explained
- a timescale within which the new decision will be issued
- a fuller explanation of the decision, if necessary
- why points of dispute cannot be addressed
- any relevant documentation requested by the claimant or why this was not possible (and if not, when they will be)
- a response to a request for protective costs
Final Words
Depending on the outcome of the response letter from the Home Office, it may then be necessary to proceed with a Judicial Review. As mentioned above, a Judicial Review really is an action of last resort. In many cases, there may be easier ways to overcome a negative decision by the Home Office, including immigration based administrative review, bringing an appeal, or to submit a fresh application. To ensure you have the best strategy to resolve your immigration matter, speak to an immigration Solicitor with experience and expertise in complex immigration matters, including Judicial Reviews.
Gulbenkian Andonian specialises in the most complex and urgent immigration applications and appeals cases and can help you facilitate a Pre-Action Judicial Review. Our immigration appeal 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.
FAQs
A pre-action for judicial review is a process in which a court assesses whether or not a public body, such as a government department, has acted lawfully when making decisions. It enables individuals and organisations to challenge the legality of an action before it takes place rather than waiting until after the decision has been made.
Submitting a pre-action protocol for UK visa applications sets out how applicants, their legal representatives and the Home Office should interact prior to any judicial review being sought. The protocol is designed to encourage early dialogue between the parties outside of the legal system in order to avoid unnecessary court processes. It also is aimed at making sure applicants are adequately informed of and have access to information regarding the legal process and their rights. The protocol applies to all UK visa applications, including those for visas for study, work or other purposes.
If a pre-action protocol is not followed, a court may decline to hear an application for judicial review. In addition, the court has the power to dismiss the case if it finds that there has been unreasonable behaviour or failure to follow the pre-action protocol. This could potentially lead to an applicant’s application for a judicial review is denied and their rights to challenge the decision taken by the Home Office being extinguished.
The success rate of pre-action protocols in immigration cases is difficult to measure as it is on a case-by-case basis and really depends on the complexity and reasoning behind why one’s immigration application was refused. However, it is generally considered that the success rate of applications for judicial review that have followed the process of a pre-action protocol is significantly higher than those which do not. It is also essential to understand that even if an application follows the pre-action protocol, it does not guarantee that a successful outcome will be achieved. In the best-case scenario, the advisable thing to do would be to meet with immigration solicitors to understand your chances of success and how to proceed with a pre-action judicial review.
A professional UK Immigration solicitor will be able to provide you with the best legal expertise and advice needed to make a pre-action protocol for judicial review successfully. A solicitor will be able to help you understand your rights and obligations under the protocol, prepare the letter on your behalf, as well as advise you on the best course of action to take on your specific case. They can also provide legal representation during the proceedings if your case does need to go through the UK legal system. Additionally, they can help you draft an appropriate statement of the case for your application and ensure that it meets all of the requirements set out by the court.
A pre-action for judicial review is a process in which a court assesses whether or not a public body, such as a government department, has acted lawfully when making decisions. It enables individuals and organisations to challenge the legality of an action before it takes place rather than waiting until after the decision has been made.
Submitting a pre-action protocol for UK visa applications sets out how applicants, their legal representatives and the Home Office should interact prior to any judicial review being sought. The protocol is designed to encourage early dialogue between the parties outside of the legal system in order to avoid unnecessary court processes. It also is aimed at making sure applicants are adequately informed of and have access to information regarding the legal process and their rights. The protocol applies to all UK visa applications, including those for visas for study, work or other purposes.
If a pre-action protocol is not followed, a court may decline to hear an application for judicial review. In addition, the court has the power to dismiss the case if it finds that there has been unreasonable behaviour or failure to follow the pre-action protocol. This could potentially lead to an applicant’s application for a judicial review is denied and their rights to challenge the decision taken by the Home Office being extinguished.
The success rate of pre-action protocols in immigration cases is difficult to measure as it is on a case-by-case basis and really depends on the complexity and reasoning behind why one’s immigration application was refused. However, it is generally considered that the success rate of applications for judicial review that have followed the process of a pre-action protocol is significantly higher than those which do not. It is also essential to understand that even if an application follows the pre-action protocol, it does not guarantee that a successful outcome will be achieved. In the best-case scenario, the advisable thing to do would be to meet with immigration solicitors to understand your chances of success and how to proceed with a pre-action judicial review.
A professional UK Immigration solicitor will be able to provide you with the best legal expertise and advice needed to make a pre-action protocol for judicial review successfully. A solicitor will be able to help you understand your rights and obligations under the protocol, prepare the letter on your behalf, as well as advise you on the best course of action to take on your specific case. They can also provide legal representation during the proceedings if your case does need to go through the UK legal system. Additionally, they can help you draft an appropriate statement of the case for your application and ensure that it meets all of the requirements set out by the court.
At Gulbenkian Andonian, we pride ourselves on “Excellence, Experience and Efficiency”. With over 35 years of experience on your side, our team of London based lawyers and solicitors have a wealth of experience advising individuals, families and businesses of all sizes to find clarity on UK law. Call us on +44 (0) 207 269 9590 or fill out the form below. We usually reply within a few hours. Neither Gulbenkian Andonian Solicitors ltd, nor their employees, agents, consultants or assignees, accept any liability based on the contents of written articles which are meant for guidance only and not as legal advice. We advise all readers to take professional advice before acting. If you would like to consult with a professional lawyer or solicitor to discuss your case, please do not hesitate to contact us directly. This site uses reCAPTCHA and is protected by the Google privacy policy and terms of service.Ask our Expert Legal Team
Share This Post
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.
