JUDICIAL REVIEW

Normally aperson 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 the pre-action protocol (PAP)

PAP letters and the responses to them should be carefully considered and drafted by a knowledgeable expert. 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.

If a person wants a judicial review of a decision then an application must first be made before 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. The person who brings a claim for judicial review is known as the claimant (applicant in the Upper Tribunal) and the person against whom the judicial review is brought is the defendant (the respondent in the Upper Tribunal), normally the Secretary of State for the Home Department (‘SSHD’) but it can be an Immigration Officer or Entry Clearance Officer when their decision is being challenged.

References in the remainder of this document are to claimants and defendants but apply equally to applicants and respondents. The claimant sets out the grounds of their claim, and includes any evidence they wish to rely on and asks for permission to be granted. Once received by the Upper Tribunal or High Court the application is ‘sealed’ by the court. This means the court stamps the application to show it has been received. The papers must then be served on GLD who will in turn notify the Home Office in cases progressing through High Court or directly on the Home Office in Upper Tribunal cases. The Upper Tribunal Rules do not formally require service of the sealed claim form although letters issued by the Upper Tribunal do inform applicants that they must do this.

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 (AoS). The AoS 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 we are contesting the claim the AoS, will include our summary grounds of defence (SG) 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 Page 7 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.

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 defence within a Page 8 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.

The case will then have a substantive court hearing at which oral arguments are made by both the claimant and defendant. The court will then deliver a final judgment, which will either allow the claim and provide a form of relief in a court order, or dismiss the claim upholding the Home Office’s position.

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.

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 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 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.