How to judicially review a Home Office immigration decision
Those wanting to challenge home office decisions will hear top London immigration solicitors talk about appeals and Judicial Reviews. It is often assumed that they are the same but they are not.
What is a judicial review?
judicial review is the review of a decision by a public body, such as the Home Office, by the court. Decisions taken by public bodies, for example UK Visas and Immigration can be reviewed if there is:
• Unfairness; or
• Illegality; or
• Irrationality.
At a judicial review hearing, a judge can decide that the decision of the public body was correct in that it was made in accordance with the Home Office procedure to make the decision and is therefore legally correct.
Unlike at an appeal hearing, a judge at a judicial review hearing will not decide whether the decision made by the public body was the right one in the individual circumstances of the case. All the judge at a judicial review hearing can look at is whether the public body followed the correct procedure when the decision was taken, not the rights or wrongs of the Home Office decision.
As often the appeal options against Home Office decisions are limited, the best London immigration solicitors engage in judicial review applications to challenge UK Visas and Immigration decisions.
How can OTS Solicitors help?
OTS Solicitors are Legal 500 London immigration solicitors with extensive experience in challenging Home Office and UK Visas and Immigration decisions by judicial review applications and appeals.
OTS Solicitors have teams of Immigration law solicitors who specialise in advising on judicial review applications and the best ways to challenge Home Office decisions. To speak to one of our experienced London immigration solicitors please call us on 0203 959 9123.
judicial review outcomes
If a decision by the Home Office is found to be lawful, the decision will stand. The best London immigration solicitors advise that if the court finds that the Home Office decision was unlawful, unfair or irrational then the judge will not make a new decision. Instead, the judge will send the Immigration case back to the Home Office for reconsideration.
If the court is satisfied that the Home Office acted unlawfully when making an Immigration decision the court can make:
• A quashing order that stops the Home Office decision; or
• A prohibit order that prevents the Home Office from doing something; or
• A mandatory order that requires the Home Office to act; or
• Make a declaration.
Technically, if a judicial review application is successful the court can award damages to the applicant. However, the best London immigration solicitors advise that the court rarely make damages or compensation orders in judicial review cases.
The top London immigration solicitors say that the majority of judicial review applications challenging Home Office decisions are heard by judges in the upper tribunal but some judicial review applications, for example unlawful detention cases, are heard in the high court.
Why use judicial review to challenge a Home Office Immigration decision?
In many Immigration applications, there is no right of appeal against the Home Office decision to a court or tribunal. The top London immigration solicitors will carefully consider the options to challenge a Home Office decision, such as appeal or administrative review prior to advising on a judicial review application, as a judicial review cannot normally be started if there are alternate ways to challenge a Home Office decision.
judicial review time limits
There are strict time limits to request an administrative review, appeal against a Home Office decision, or start judicial review proceedings. If an Immigration application is refused or rejected it is vital that urgent legal advice from a specialist London Immigration solicitor is taken.
The best London immigration solicitors say that an application for permission to apply to judicially review a Home Office decision has to be submitted within three months of the date of the Home Office decision that is being challenged.
Whilst it is possible to apply beyond the three month limit the application may be refused if the court does not think that there was a very good reason for the delay. Lack of knowledge of the law is not a good reason for delay so it is essential that legal advice is taken quickly if you do not agree with a Home Office decision.
Applying for permission to apply for judicial review
The top London immigration solicitors will tell you that the process of applying for a judicial review of a Home Office decision is complex. You cannot just start judicial review proceedings. An applicant has to apply to a judge for permission for judicial review to take place.
Does a successful judicial review application guarantee that the Home Office will change its decision?
If a judge decides that the original Home Office Immigration decision was unlawful, the Immigration case does not end there. The case is referred back to the Home Office to reconsider. The Home Office could reach the same decision and on a second occasion, there may not be the grounds to apply to court to challenge the second Home Office decision. It will all depend on the individual circumstances of the case.
That is why, in the opinion of the best London immigration solicitors it is vital to ensure that expert advice is taken before submitting an application to the Home Office, to try to avoid the stress and cost of challenging a refused Home Office application.
judicial review and pre action protocol
In most judicial review applications, it is necessary to follow a pre action protocol before starting the judicial review court application. This involves sending a pre-action protocol letter (referred to as a PAP letter) by the applicant who is planning to bring the judicial review court application. The letter sets out their case as to why they believe the Home Office acted unlawfully. The Home Office can then consider the contents of the letter and the merits of the complaints before the judicial review proceedings are started.
The purpose of the pre action protocol is to try to avoid the need for judicial review proceedings and costs. If the Home Office accept that the original decision making procedure was flawed the judicial review court proceedings may not be necessary. If an unsatisfactory reply is received, then judicial review proceedings can be commenced.
The top London immigration solicitors emphasise the importance of following the judicial review pre-action protocol letter unless the application is urgent. That is because if an applicant does not follow the protocol, without good reason, they may end up having to pay costs.
judicial review hearing and new evidence
Most applicants for a judicial review want to submit additional evidence to the judicial review tribunal or court. The judicial review process is not like an appeal and different rules apply. Normally the judge will consider only the evidence that was before the Home Office caseworker at the time of the original Home Office decision.
Will a judicial review application stop the Home Office implementing its Immigration decision?
The top London immigration solicitors are often asked if a judicial review application will stop the Home Office removal process if a visa extension application has been refused or leave to remain has expired. This will depend on individual circumstances so it is essential that Immigration law advice is taken on the impact of a judicial review application in your situation.
How can OTS Solicitors help?
OTS Solicitors are specialist London immigration solicitors recommended in the legal directory, Legal 500, for their expertise in Immigration law.
OTS Solicitors advise on all aspects of Immigration law. Our London immigration solicitors have substantial experience and success in challenging Home Office decisions and in judicial review applications and Immigration appeals.