Judicial review (JR) is a process by which a person can challenge the lawfulness of a decision made by a public body or the failure of a public body to act. Examples of the types of matters that can be subject to JR from the immigration perspective include:
- Failure to act e.g. delay in making a decision;
- Refusal to accept that further representations amount to a fresh claim;
- Decision certifying a claim as unfounded;
- Detention and removal.
An application for permission to apply for JR must be made promptly and no later than three months from the date of the decision being challenged. Within this three-month period, a person seeking judicial review of a decision is generally expected to have also complied with the Pre-Action Protocol. This means that individuals must act quickly once an eligible issue arises.
Any application made outside of the three-month time frame will be out of time, and an application for an extension of time must be made when filing the JR. Whether an extension of time is granted depends on the reasons for the delay and the court’s discretion. This is not recommended, and neither is filing a claim at the very end of the three-month period as it defeats the purpose of parties being required to act “promptly.”
A remedy of last resort
Judicial review is a remedy of last resort. This means that if a decision can be challenged or resolved via alternative means such as an appeal, administrative review or during the Pre-Action Protocol, an application for judicial review should generally be filed. Where a party files an application for judicial review in these circumstances, it not only faces the risk of permission being refused but also being faced with costly penalties.
Except for limited circumstances, all parties seeking to have a decision judicially reviewed must first comply with the Pre-Action Protocol. This gives the person seeking to bring the claim an opportunity to present his case to the local authority. It equally gives the local authority an opportunity to review its decision or failure to act and consider whether the decisions should be remade, or action is taken. The idea is to encourage early settlement of the claim before applying to the courts. With respect to a decision made by the Home Office, the Home Office has 14 days to respond from the date a letter before the claim/Pre-Action Protocol letter is received, except where an extension is sought.
Grounds for judicial review
The grounds for judicial review are limited and are:
- Illegality: where the decision-maker has wrongly applied the law, wrongly applied its power or acted beyond its powers;
- Irrationality: where the decision is so unreasonable that no reasonable authority could have ever made it;
- Procedural impropriety: where incorrect procedures have been followed in arriving at the issue under challenge; or
- Breach of legitimate expectation: where a public body has failed to act in accordance with an expectation that it has created.
The deciding court cannot remake a decision but it can grant any of the following reliefs at its own discretion and upon the ground(s) for judicial review being made out:
- A quashing order against the decision in question;
- A declaration;
- A mandatory order requiring a public body to carry out its legal duties;
- A prohibitory order restraining a body from acting beyond its powers;
- A stay or injunction;
Following the independent Faulks review of March 2021, the government has launched a consultation to consider several proposals to reform the current judicial review system. The consultation is due to last until the end of this month and the government is expected to legislate on the matter in late 2021 or 2022.
The proposals are significant and include:
- Removing the requirement to bring a claim promptly;
- Allowing parties to agree an extension to the three-month time limit for bringing a claim;
- Restricting the quashing order as a remedy in certain situations.
Even if the procedure is relaxed to incorporate the proposals, it is unlikely to be without restrictions or checks and balances in place to avoid the judicial review process being abused as a remedy.
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Connaught Law and authors accept no responsibility for loss that may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Connaught Law. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Connaught Law.
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- 29 October 2021