What is a Judicial Review?
Submitting a Judicial Review is how members of the public can challenge the lawfulness of decision made public bodies. In the field of immigration, a Judicial Review can be submitted where the refusal of an application does not grant the applicant an automatic right of appeal. It can also be taken where all appeal rights have been exhausted. In an immigration context, Judicial Review is a remedy available in the Upper Tribunal or in the Administrative Court (part of the High Court). It is a remedy designed to keep a check on any public body carrying out a public decision-making function. It might be the Home Office, one of the Upper Tribunals, a local authority or an Ombudsman.
The Judicial Review process is one of the primary ways in which the courts ensure that the Government and its agencies use the powers that they have both lawfully and reasonably. This very process emphasises the Court’s wide-ranging power within British jurisdiction. It can quash a decision, grant an injunction, or even award damages. What the Court is looking for, in order for it to grant a remedy is either: illegality, irrationality or unfairness in a decision reached.
The Limitation Period for Filing a Judicial Review:
Time is everything in a Judicial review. The Claim Form must be filed with the Upper Tribunal/Administrative Court promptly and in any event not later than three months after the grounds upon which the Claim is based first arose (CPR Part 54.4).
Before one submits a substantive review, it is necessary to submit a pre-action protocol. This details the skeletal facts of the case and is essentially a form of mediation. It seeks to settle the matter before the case goes to the courts. A Pre-Action Protocol letter sent to the opponent(s) in a set form provided under the Court Practice Rules. The Protocol sets out a code of good practice designed to avoid unnecessary litigation and wasted legal costs. The letter should ideally give 14 days’ notice to the other party wherever possible.
What are the Grounds for Judicial Review?
Grounds for judicial review relate to the procedure surrounding a decision taken by a public body or the substance of that decision. Broadly, there are three main grounds for a judicial review:
This is a very broad ground for review and covers a wide range of possible abuses by public authorities. When public authorities act outside of their legal authority, they are acting ultra vires.
Where there is reason to believe a public body has acted unfairly. This could be in the decision or action it has taken, the process followed, the circumstances that were considered when reaching a decision or a breach of promise following a decision
Lord Diplock explained that irrationality means unreasonableness, where the decision reached by the public body is unreasonable, perverse or disproportionate.
Remedies for Judicial Review:
If the Court hearing a Judicial Review case grants the Application, there are six possible remedies:
Quashing Order – striking out the original decision, and requesting the public body to take the decision again, lawfully;
Mandatory Order – ordering the Public Body to do something it has to do;
Prohibiting Order – forbidding the Body from doing something unlawful in the future;
Declaration – for example declaring that a legislative provision is incompatible with the Human Rights Act;
Injunction – a temporary remedy pending the hearing of the full Application for Judicial Review;
Damages – may be available, particularly where there has a been a breach of an individual’s rights under the Human Rights Act
Why choose Adam Bernard Solicitors?
What is important to stress regarding this area of law is that when one is submitting a Judicial Review one is not seeking to review the merits of the decision. Instead, one is seeking to question the manner in which that decision was reached. Only the most experienced immigration solicitors have the ability to submit such reviews as it requires considerable expertise in this field of law. Our immigration solicitors have challenged many decisions of the Home Office through this means and the successes of our clients is testament to our ability when doing so.
When submitting a Judicial Review, it is fundamental that you receive the best and most comprehensive immigration advice to deal with all elements of your claim. Our team have supported clients from London and beyond to protect their rights against the unlawfulness of a Home Office decision