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Judicial Review Guide | Immigration Solicitors 4 me

What is Judicial Review?

Judicial Review is the process through which the judges evaluate the decisions of public bodies and make sure if the law has been rightly followed. It is significant to notice that the judicial review is not  type of a re-trail rather judges restrict themselves focusing on whether the decision that has been challenged was lawful and adheres with the principles of public law.

The Judicial Review or JR is considered as an integral part of UK immigration and it demands a wealth of expertise and experience. It can be time consuming and expensive process as well but it could be the last way that people have to challenge any abuse of power within public bodies and government. It is thus important to uphold the rule of law

What is the Time Limit?

An application for Judicial Review must be made within 3 months. The time limits are strictly applicable and both parties to JR cannot agree for an extension decided among them. In fact, it is advised to look for immediate legal advice and support in such decisions and concerns.   

What is the process of Judicial Review?

The JR process is usually a three stage procedure as explained below:

Stage 1 JR Permission (paper only)

  1. The applications that are made in High Court or Upper Tribunal and respective copies that are served to Home Office or State Secretary
  2. The State Secretary or Home Office need to submit the response in 28 days, either favouring in defending the claim or proposing a settlement
  3. In case the claim is defended, the file will be placed in front of a judge who will make the decision based on the papers submitted without any hearing

In case, the permission is allowed then the matter will move forward to a full hearing. In other case, if the permission is refused then the matter will move forward to stage 2 as mentioned in below. In case, the permission is refused as well as the judge has issued a certificate letting that the claim was made without any merit then it is the end of the subject.  

Stage 2 (Permission Hearing)

  1. The grounds for reconsideration will be drafted rightly and then submitted based on the paper refusal grounds.
  2. The matter listed will be discussed in front of a single judge for the permission hearing the final decision of either to grant or refuse the permission. In case, the permission is allowed then the matter will move forward to next stage. In case, it is refused then the matter will end here.

Stage 3 (Full Hearing)  

At this stage, it is highly unlikely that Home Office would wish to move forward with the hearing as most of the times, there are settlement proposals by now from UKVI. In case, the matter moves forward to the substantive hearing, then the High Court Judge or Upper Tribunal will listen to the counsels from both parties and accordingly make the decision, either in allowing the Judicial Review or refusing the same.    

In case, the JR application is successful, the decision under challenge will usually be put down or in few cases, a mandatory order related to issuance of visa will be ordered. In cases of protection claims or certified human rights, the mandatory order for allowing an appealable order will be made.   

What are the grounds for Judicial Review?

The prime grounds on which JR could be taken involve irrationality, illegality, incompatibility with the EU law – European Convention on Human Rights, and procedural unfairness.   

  1. Illegality or the public bodies acting outside their power – The public bodies are usually free to do what the law says they can do as per the secondary legislation or Act of Parliament rules, orders and regulations. In case the public bodies do not follow the law in the right way, any failure to act or resulting decision will be unlawful.
  2. Irrationality – The courts may interrupt in between and could also put down a decision where they might think it to be irrational or unreasonable. The irrationality test depends on whether the decision is unreasonable or not and no as such reasonable authority could come near to it. In practice, it can be difficult to address to this and no special consideration is given to such environmental cases. Irrationality could be argued over many other grounds.
  3. Proportionality - In few cases, where human rights law or EU law is involved, it is important for a public body to act in the right manner. The proportionality concept includes balancing exercises in between legal objectives on one end and on the other protecting the individual’s rights and interests. The test is basically for the employed to achieve the objective and no more adhere to the rights of the individual to be impacted.
  4. Procedural unfairness – It is important for public bodies to act fairly and appropriately. Though, they could be seen as impartial. Just for an example, the public bodies must not let decisions to be taken by people who have any personal relationship with either of the parties or have financial interest in the end result that could seem to be bias. In case, there are express procedures that are depicted as per the law then it is pivotal to do follow them.

What are the Stages in a typical JR? 

  1. Pre action protocol – It is the foremost step in which a formal letter is been written to the proposed defendant by your end letting him be aware of the proposed claim and what you are expecting. Also referred to as PAP – Pre Action Protocol letter, usually the response is requested within 14 days.
  2. Permission to proceed – In case the defendant’s response to the letter is not satisfactory that you can seek to pursue a JR by filing in the claim with the respective fee in High Court or Upper Tribunal. It includes completion of a claim form, settings your grounds on the basis of facts with relevant legal provisions, a statement reflecting your financial means, cost protection etc. It is indeed the intensive phase of the JR process for the claimant.
  3. The substantive stage – In case the permission is allowed by the court and judges, the claim will move forward to the full hearing. The evidence from the defendant side will be awaited and any interested party. In urgent cases, many a times, a judge order that both permission stage and substantive stage will be heard at the same point of time, also referred to as rolled up hearing. It even happens when one party makes an application for the case to be heard sooner. Certainly, a rolled up hearing has the benefit of handling the matter fast and at a rapid pace and is also cheaper than the two stage process. The final hearing takes place a few months after the evidence receipt and both sides counsel that time and provide the respective summaries of the legal cases. The judge will go through the important parts of the papers and if it gets done, the hearing will be done promptly.     
  4. Judgement – The judge may let everyone know of the judgement there only or shortly afterwards but usually, it is handed down and provided in writing later. After the judgment, a debate takes place focusing on matters like who will pay for the cost, and whether permission needs to be provided to appeal the decision or so.
  5. Appeal – Usually, judges refuse the permission to appeal and the losing party has to apply to the court of appeal to get the permission directly. The cost could be revised on the basis of appeal for legal action needs that will be applicable to all stages of JR.

How we can help you?

Considering the legal criticalities and complexities associated with Judicial Review, it is pretty much important to always seek for the counsel from the experts only. And Immigration Solicitors4Me is one stop platform with a wealth of expertise and experience, backed with reliable and professional solicitors who can instruct counsels for drafting grounds related to JR or for opinions or others in the efficient way. We take care of every step of the proceeding well and feel free to discuss with us anything openly and get the assurance of availing none but the best services.