A Brief Guide to Judicial Review Procedure – Challenging a UK Visa Refusal
A judicial review is a form of court proceeding in which a judge reviews the lawfulness of a decision or action made by Home Office. In judicial review, an individual asks the High Court or Upper Tribunal to review the lawfulness of a decision, action or failure to act of a public body or government department. It can also be used to challenge secondary legislation, the immigration rules or policy, or the compatibility of an act of Parliament with the Convention rights under the ECHR.
Pre-Action protocol
The first step in the JR procedure is to write a formal letter to the proposed defendant setting out your proposed claim and what you are seeking. This is known as a pre-action protocol (or PAP) letter.
PAP letters and the responses to them should be carefully considered. This is a good opportunity to prevent judicial review proceedings being brought at all, either by re-making the decision in the applicant’s favour (where appropriate) or by setting out clearly the reasons for maintaining the existing decision.
Paper Permission Stage
If a person wants a judicial review of a decision they must first apply to the Upper Tribunal or High Court for permission. This should be done as soon as possible, but normally no longer than 3 months from the date of the decision, although the courts can decide to accept applications after that time limit. Once the grounds have been served on GLD or the Home Office, there are 21 days to file a paper response to the claim, this is known as an Acknowledgement of Service. The acknowledgment of service allows the Home Office to confirm whether it accepts the claim detailed in the judicial review or whether we wish to contest the claim. If Home Office is contesting the claim the acknowledgment of service, they will include summary grounds of defense and any evidence the Home Office wishes to rely on as to why the claim should not be granted permission to proceed.
Once the court receives these documents a single judge will look at the papers and decide whether or not to grant permission. The test for granting permission is whether the judge thinks the claim is arguable. This is a low threshold. However, a significant majority of claims which are not settled pre-permission are refused permission to proceed. If the judge does not think the claim is arguable, the judicial review will be refused permission to proceed. Both parties are then notified of this decision by means of a court order.
If permission is refused, the judge may also certify the claim as being ’totally without merit’. This is added when the judge considers the claim is completely hopeless. A ‘totally without merit’ finding stops the claimant from renewing their judicial review to an oral permission hearing, but they may appeal this decision to the Court of Appeal.
If the judge does consider the claim to be arguable, he or she will grant permission. In this circumstance, the case will proceed to a full substantive hearing. In either case, both parties are notified of the judge’s decision by means of a court order.
Oral permission stage
In some cases, the judge will not be able to reach a decision on whether permission should be granted on the basis of the paper documents before him. In these circumstances, an oral permission hearing oral permission hearing will be ordered.
Also, if permission is refused on the papers a claimant has 7 days plus 2 working days for postage (High Court) and 9 days (Upper Tribunal) in which they can ‘renew’ the application to an oral permission hearing. This time period can be abridged to a shorter period if the application is deemed urgent. If so, this will be stated in the Order refusing permission on the papers.
Substantive hearing
Once a case is granted permission to proceed it will go on to a substantive hearing unless settled or withdrawn, although occasionally there may be a prehearing known as a case management conference or an interim relief hearing to take a view on an urgent element of the judicial review. Once permission is granted the defendant must submit detailed grounds of defense within a specified time frame (35 days from the date of permission grant). Nearer the hearing date counsel for both sides will submit written arguments as to why the claim should either be allowed (on behalf of the claimant) or dismissed (on behalf of the Home Office). These are called skeleton arguments.
Onward appealing
It is possible to appeal a judicial review decision with permission. This includes a refusal of permission, a finding that a case is ‘totally without merit’ or the final judgment.
Settling cases
A judicial review claim can be settled at any point before a substantive hearing if the Home Office and the claimant are able to come to an agreement on resolving the matter under dispute.
Discussions between the parties about the settlement may be conducted on a ‘without prejudice basis’ which means that the court will not see the relevant correspondence. Agreements to settle are then set out in the consent order, which is provided to the court (although in some circumstances elements of the agreement are kept private between the parties – this applies particularly to awards of damages). The court will normally approve (seal) a consent order signed by both sides at which point it becomes a binding court order. The court could potentially disagree that the judicial review should be settled as proposed but this is extremely rare. A claimant can also withdraw their judicial review at any point should they wish to do so.
Time limits in Judicial Review
Normally a person who wishes to challenge a decision of the Home Office should write first to the department asking for the decision to be reviewed. This is called pre-action protocol. Normally a response is expected within 14 days. However, in cases challenging a grant of planning permission, the 6-week time limit to issue a claim does not leave much time for pre-action correspondence, although you must try to complete it if possible.
If a person wants a judicial review of a decision they must first apply to the Upper Tribunal or High Court for permission. This should be done as soon as possible, but normally no longer than 3 months from the date of the decision, although the courts can decide to accept applications after that time limit.
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