Our immigration judicial review solicitors can provide guidance on the benefits of applying for immigration judicial review and represent you in immigration judicial review proceedings if you wish to challenge the lawfulness of a decision or action of the Home Office or the Immigration Tribunal and have exhausted all available alternative remedies.

This page examines the nature of immigration judicial review and whether it is the appropriate remedy in a given case. It also provides examples of common immigration judicial review claims, examines potential grounds for immigration judicial review, time limits for applying for immigration judicial review, the judicial review application process, and fees and costs in immigration judicial review proceedings.

What is Immigration Judicial Review?

Judicial review of immigration is a court proceeding in which a judge evaluates the legality of a decision or action made by the Home Office or the Immigration Tribunal.

In an immigration judicial review, the judge will concentrate on the process by which the Home Office or Immigration Tribunal arrived at its immigration decision, rather than the validity of the decision.

Alternatively, immigration judicial review is a challenge to the process employed by the Home Office or Immigration Tribunal to arrive at an immigration decision, rather than the actual conclusion arrived.

Immigration judicial review is a last-resort remedy; you must have exhausted all other available complaint and/or appeal mechanisms before conducting judicial review proceedings. Please be advised that the Home Office will not notify you of your right to challenge a decision through judicial review.

It is possible for judicial review applications to be complex, hazardous, and expensive. When contemplating an application for judicial review, it may be beneficial to consult with a judicial review counsel who specialises in his or her field.

Is Judicial Review the Right Legal Process?

Instead of submitting a judicial review application, you may be able to file an immigration appeal with the First-tier Tribunal if you believe that the Home Office's immigration decision in your case was incorrect rather than unlawful.

A complete hearing of a case on the facts is conducted in the First-Tier Tribunal before a judge. This is known as an appeal. The judge has the option to either overrule the decision and render their own judgement or return the decision to the Home Office for re-evaluation if the appeal is granted..

Additionally, you will be informed of any potential appeal rights associated with your decision. Rather than submitting an application for immigration judicial review, you may be able to appeal to the Upper Tribunal in order to contest the validity of a First-tier Tribunal decision. In the event that you lack the right to appeal, you may be able to contest a casework error in the decision by submitting an application for Administrative Review, either prior to or as a substitute for judicial review.

In the absence of an oral hearing, administrative review is an internal review conducted by the Home Office that is deemed "on the papers." The Home Office employees will evaluate the decision that is currently being challenged for the errors that you have identified in your request for an administrative review. Any entitlement to administrative review in your decision will be communicated to you.

Grounds for Immigration Judicial Review

Illegality, procedural injustice, and irrationality comprise the three primary grounds for immigration judicial review.

• Illegality: the decision-maker did not have the legal power to make the decision;
• Procedural unfairness: the process leading to the decision was improper;
• Irrationality: the decision under challenge is so unreasonable that no reasonable person, acting reasonably, could have made it.

Furthermore, the Home Office or Immigration Tribunal's decision may be appealed on the basis that the decision-maker violated human rights protections established by the Human Rights Act 1998.

The Home Office's decision will not be re-made by the Judge if it is determined to be unlawful, unjust, irrational, or in contradiction to human rights. On the contrary, it will be returned to the Home Office for further consideration.

As previously stated, immigration judicial review is not a suitable legal process if you wish to contend that a decision made by the Home Office or Immigration Tribunal is plainly incorrect, or if there is an alternative avenue of appeal or review.

If necessary, our immigration judicial review solicitors can provide guidance on the most effective method of contesting a Home Office decision and, if applicable, develop the grounds for judicial review.

Immigration Judicial Review Time Limits

It is imperative that an immigration judicial review application that challenges a decision of the Home Office be submitted promptly and sent or delivered to the Upper Tribunal no later than three months after the date of the decision being challenged.

A judicial review application for immigration that challenges a decision of the First-tier Tribunal (Immigration and Asylum) may be submitted after the aforementioned deadline, provided that it is submitted within one month of the date on which the First-tier Tribunal sent written reasons for its decision or notification that an application to set the decision aside has been unsuccessful.

Given these time constraints, it is imperative to submit judicial review applications promptly upon determining that the case is appropriate for judicial review. As soon as feasible, it is recommended that you consult with a counsel who specialises in immigration judicial review if you believe you may have a claim.

Apply for Judicial Review in an Immigration Case 

The Upper Tribunal (Immigration and Asylum) is the entity that receives and resolves the majority of applications for judicial review of a decision made by the Home Office or the First-tier Tribunal (Immigration and Asylum).

Nevertheless, the Administrative Court (a branch of the High Court) is the appropriate venue for any challenge to the following, rather than the Upper Tribunal:

• The validity of the immigration rules or legislation;
• The lawfulness of detention;
• A sponsor not being included on the register of sponsors maintained by UK Visas and Immigration;
• A decision to refuse British citizenship;
• A decision to refuse asylum seeker support;
• A decision made by the Upper Tribunal (Immigration and Asylum);
• A decision made by the Special Immigration Appeals Commission;
• A declaration of incompatibility under section 4 of the Human Rights Act 1998;
• A decision that has been certified as in the interests of national security;
• A decision by a competent authority in respect of being a victim of trafficking.

UK Immigration Judicial Review Process

A decision of the Home Office is the subject of a judicial review application in the Upper Tribunal (Immigration and Asylum) that has several phases.

Pre-action protocol letter

A Pre-Action Protocol Letter (or Letter Before Claim) should be sent to the Home Office prior to initiating immigration judicial review proceedings.

The Pre-Action Protocol Letter is a legal submission that elucidates the reasons why the Home Office's decision is irrational, unlawful, unjust, or violates human rights.

The Pre-Action Protocol Letter will also notify the Home Office that judicial review proceedings will be initiated if the decision is not rescinded. The Home Office will assess the decision in your case immediately upon receiving a Pre-Action Protocol Letter, typically within 14 days.

The Home Office may decide to reverse its decision and issue a visa after reviewing a Pre-Action Protocol Letter.

In the alternative, the Home Office may opt to uphold its decision. An important document that frequently results in the withdrawal and remaking of an immigration decision without the necessity of initiating immigration judicial review proceedings is the Pre-Action Protocol Letter. An immigration counsel who specialises in judicial review should compose a Pre-Action Protocol Letter whenever feasible.

 

Issue judicial review proceedings 

If your Pre-Action Protocol Letter does not receive a satisfactory response, the subsequent step is to request permission from the Upper Tribunal to petition for judicial review of the decision you are contesting, unless your case is within the jurisdiction of the Administrative Court.

The issuance of immigration judicial review proceedings must be completed within three months of the initial refusal decision (or one month of the written reasons of the First-tier Tribunal (Immigration and Asylum) decision being sent in the case of a challenge).

The duration for filing a judicial review claim is not impacted by the Pre-Action Protocol Letter stage. Completion of a judicial review application form is required in order to request permission to petition for judicial review.

When filling out the form, it is imperative to ensure that the information supplied is completely accurate. Your application for judicial review must provide a rationale for the decision you wish to challenge, including whether it is unlawful, irrational, procedurally improper, or in violation of human rights.

It may be beneficial to include comprehensive grounds for judicial review in the claim form, as the form is relatively brief. Any written evidence on which you wish to rely, copies of any relevant statutory material, and an inventory of essential documents for advance perusal by the Upper Tribunal must be submitted with the application form. In conjunction with the application, two duplicates of a paginated and indexed packet that includes all the documents must be sent or delivered.

You are required to notify the Home Office and submit a copy of the judicial review application, which includes the case reference number and any accompanying documents, once your immigration judicial review claim has been issued by the Upper Tribunal. Please submit a written statement to the Upper Tribunal within nine days of submitting your application, detailing the date and method by which a copy of your application and pertinent documents were served on the Home Office.

Typically, the Home Office will have 21 days from the date of receipt of the claim and documents to submit an acknowledgment of service. The Home Office may decide to overturn and remake its decision after giving consideration to your immigration judicial review claim and acting on the advice of the Government Legal Department. Alternatively, the Home Office may elect to defend its decision. Should this be the case, it will function as a defence statement that incorporates its grounds of defence.

Permission to apply for judicial review 

If the Home Office elects to contest its decision, a Judge of the Upper Tribunal will evaluate your immigration judicial review claim and the Home Office's defence statement. The Judge will determine whether to authorise judicial review (if the claim is arguable) or not (if it is unarguable).

Typically, the Upper Tribunal will initially address the issue of permission on the papers without conducting a hearing. Subsequently, an oral hearing may be requested by the Judge in order to determine whether the claim is arguable. The majority of permission decisions are rendered within a period of approximately three to four months.

The Home Office may decide to withdraw its decision and make a new decision within three months if permission is granted by the Upper Tribunal. This frequently leads to the issuance of a visa. Alternatively, the Home Office may opt to defend its decision in spite of the granting of permission.

If this is the case, your case will be scheduled for a thorough judicial review hearing on the merits. You will have seven days to request to renew your application for judicial review orally before a Judge of the Upper Tribunal if permission is denied on the documents, unless your claim has been certified as completely without merit.

If your judicial review claim has been certified as entirely without merit, it may be feasible to submit an application to the Court of Appeal to contest this certification.

The full judicial review hearing

In the event that your immigration judicial review claim is accepted for a complete judicial review hearing, a Judge of the Upper Tribunal will hear a full oral argument from both parties regarding the legality of the Home Office decision.

If a case is not urgent, it may take anywhere from several months to over a year to schedule a final hearing for a judicial review.

The Upper Tribunal and Home Office must receive a paginated and indexed compilation of all relevant documents required for the substantive hearing, as well as a preliminary argument, no later than 21 working days prior to the hearing.

It will also be necessary for the Home Office to serve a preliminary argument on the Upper Tribunal and you. Afterward, the Judge will thoroughly evaluate the claim and render a final determination regarding whether the Home Office violated the law.

If so, the Judge will determine the appropriate course of action to rectify the situation. The Home Office will be under obligation to adhere to the law as outlined in the Upper Tribunal's ruling.

Upon the issuance of a judgement, both parties will have the opportunity to submit arguments regarding the allocation of legal expenses associated with the proceedings. It is customary for the loser to defray both their own and the winner's legal expenses.

Immigration Judicial Review Processing Times

From case to case, the processing timeframes for immigration judicial reviews are subject to change.

The stage of an immigration judicial review that is reached prior to its concession or decision is the most critical factor in determining the processing time.

Within 14 days of submitting a Pre-Action Protocol Letter, you may receive notification from the Home Office that it intends to reverse its decision and reevaluate your application. Conversely, if the Home Office opts to defend its refusal decision at every stage of the process and your immigration judicial review claim proceeds to a full hearing, the outcome of your judicial review claim may not be known for a minimum of 12 months.

Immigration Judicial Review Fees

The following court fees are payable by the claimant in an immigration judicial review claim:

• The fee for the initial judicial review application is £154;
• The fee for requesting that a refusal of permission is reconsidered at an oral hearing is £385;
• The fee for a full judicial review hearing is £770 (reduced to £385 if you have already paid £385 to have permission reconsidered at an oral hearing).

If you are on a low income, you may be eligible to apply for a reduction in these fees.

What Happens if My Immigration Judicial Review Is Successful?

The Home Office's decision will not typically be re-made by the magistrate if it is determined to be unlawful, unjust, irrational, or in violation of human rights. Rather, it will typically be returned to the Home Office (or the court that was found to have made an error of law) to re-evaluate its decision in accordance with the law.

It is probable that the Judge will take one of the following actions if the Upper Tribunal determines that the Home Office has violated the law:

• Issue a mandatory order requiring the Home Office to do something (e.g. to take a new decision within a specific period of time);
• Issue a prohibitor order preventing the Home Office from doing something (e.g. to prevent removal from the United Kingdom);
• Issue a quashing order overturning or undoing the Home Office’s decision (e.g. to overturn and remake a decision on an immigration application);
• Issue an injunction requiring the Home Office to do something, or not do something, while a decision is made (e.g. to not remove from the United Kingdom pending a decision);
• Make a declaration stating what the law is, where this is disputed.

The Home Office or court may be able to make the same decision twice, but this time, they will follow the appropriate procedure and consider all relevant case law or evidence in a reasonable manner.

What Happens if My Immigration Judicial Review Is Not Successful?

Should your immigration judicial review claim be unsuccessful, it may be feasible to request permission to appeal to the Court of Appeal.

If you are contemplating an appeal to the Court of Appeal, it may be beneficial to consult with a specialised immigration judicial review solicitor.

Costs in Immigration Judicial Review Proceedings

The potential expense implications are a critical factor to consider when determining whether to pursue immigration judicial review.

The general rule is that the party that is unsuccessful is responsible for the costs of the successful party. Consequently, you may be responsible for the Home Office's expenses if you are unsuccessful. It is also crucial to consider that the Home Office may be responsible for covering your expenses if you are successful.

In immigration judicial review proceedings, the Upper Tribunal has the authority to award costs. The exercise of this discretion will be considered in the context of all relevant circumstances, such as the conduct of the parties prior to and during the proceedings, the success of each party, and the extent to which they have achieved success.

The Tribunal will evaluate the reasonableness of a party's decision to raise, pursue, or contest an allegation or issue, as well as the manner in which a party has pursued or defended a claim, when evaluating the conduct of the parties. The Tribunal will evaluate whether each party has adhered to the Pre-Action Protocol for Judicial Review, which is a critical factor.

Immigration Status During Judicial Review Proceedings

Your leave to remain may not be extended during an immigration judicial review as a result of section 3C of the Immigration Act 1971.

You may wish to seek legal advice regarding the impact of judicial proceedings on your immigration status, as the affect of judicial review on immigration status is intricate.

Liability for Removal During Judicial Review Proceedings

Applying for immigration judicial review will not, in and of itself, avert your deportation or removal.

If you have been granted permission to pursue a judicial review claim, the Home Office may consent to postpone your removal or deportation.

In the event that any of the following circumstances are present, the Home Office will not consent to postpone removal or deportation, despite the fact that permission has been granted:

• You have applied for judicial review less than 6 months since the conclusion of a previous judicial review or appeal on the same or similar legal issue or evidence;
• You have applied for judicial review less than 6 months since the conclusion of a previous judicial review or appeal and the issues being raised could reasonably have been raised in the earlier judicial review or appeal proceedings;
• Your judicial review is brought during the three-month removal window (you may be able to apply for an injunction to stop the removal); 
• Your judicial review challenges your removal on a scheduled charter flight (you may be able to apply for an injunction to stop the removal).