Is Judicial Review the Appropriate Legal Process?
If you believe that an immigration decision is incorrect rather than unlawful, an appeal to the First-tier Tribunal may be a more appropriate course of action. An immigration appeal involves a full hearing before a judge, who has the power to overturn the decision or remit it to the Home Office for reconsideration.
Where a First-tier Tribunal decision is in dispute, an appeal to the Upper Tribunal may be an alternative to judicial review.
If no appeal rights are available, Administrative Review may provide a means of addressing casework errors without resorting to judicial review. Administrative Review is an internal Home Office process conducted based on documentary submissions without an oral hearing.
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Grounds for Judicial Review in Immigration Cases
Judicial review claims typically rely on three main grounds:
- Illegality – The decision-maker acted beyond their legal authority.
- Procedural unfairness – The process leading to the decision was improper.
- Irrationality – The decision was so unreasonable that no rational decision-maker could have reached it.
Additionally, a decision may be challenged on the basis that it breaches rights protected under the Human Rights Act 1998.
If a judge determines that a decision is unlawful, they will not remake the decision but will return it to the Home Office for reconsideration.
Time Limits for Judicial Review in Immigration Cases
Judicial review applications must be submitted promptly and no later than three months from the date of the Home Office decision being challenged. If challenging a First-tier Tribunal decision, an application must be made within one month from when the Tribunal issued written reasons or refused to set aside its decision.
Given the strict deadlines, applicants should seek legal advice as soon as possible if considering judicial review.
Applying for Judicial Review in an Immigration Case
Most judicial review applications relating to immigration decisions are lodged with the Upper Tribunal (Immigration and Asylum Chamber). However, certain matters—such as the validity of immigration rules, the lawfulness of detention, or refusal of British citizenship – must be filed with the Administrative Court (High Court).
If you are considering a judicial review in the Administrative Court, contact our specialist immigration judicial review lawyers for further guidance.
The Judicial Review Process
Pre-Action Protocol Letter
Before initiating judicial review proceedings, a Pre-Action Protocol Letter (Letter Before Claim) should be sent to the Home Office. This letter sets out legal arguments, identifying why the decision was unlawful, irrational, or procedurally unfair. The Home Office typically responds within 14 days.
If the Home Office withdraws its decision upon receipt of the letter, the matter may be resolved without formal judicial review proceedings.
Issuing Judicial Review Proceedings
If the Home Office maintains its decision, an application for judicial review must be filed with the Upper Tribunal or Administrative Court within the prescribed time limits. The application must include:
- A completed judicial review application form
- Detailed grounds for review
- Supporting evidence and statutory material
- A paginated bundle of relevant documents
A copy of the application must be served on the Home Office within nine days.
Permission to Apply for Judicial Review
A judge will review the case and either grant or refuse permission to proceed. If permission is refused on paper, the applicant may request an oral renewal hearing within seven days (unless certified as totally without merit).
Full Judicial Review Hearing
If permission is granted, a full hearing will be scheduled. The judge will hear legal arguments and issue a final ruling on the lawfulness of the Home Office decision. This process can take several months to over a year.
If the claim is successful, the judge may issue one or more of the following orders:
- Quashing Order – Invalidates the Home Office’s decision.
- Mandatory Order – Directs the Home Office to take a specific action.
- Prohibitory Order – Prevents the Home Office from taking an action.
- Injunction – Temporarily prevents removal or deportation.
- Declaration – Establishes a point of law for future cases.
Costs and Fees
Judicial review proceedings involve various fees:
- Initial application – £154
- Oral renewal hearing – £385
- Full hearing – £770 (reduced to £385 if an oral renewal fee has been paid)
Applicants on low incomes may be eligible for fee reductions.
The unsuccessful party is generally liable for the other party’s costs. However, costs awards depend on case circumstances and adherence to the Pre-Action Protocol.
Immigration Status and Judicial Review Proceedings
Judicial review proceedings do not automatically extend an applicant’s leave to remain under Section 3C of the Immigration Act 1971. Individuals should seek legal advice regarding the impact of judicial review on their immigration status.