Judicial Review to Challenge UK Visa Refusals and Bans

Judicial review is a type of a court proceeding in which a judge examines the lawfulness of a decision or action executed by a public body.

In other words, judicial review is a challenge to the way in which a determination has been given, rather than the rights and wrongs of the outcome reached. It is not really concerned with the outcomes of that process and whether these were ‘right’, as long as the right procedures have been followed. The tribunal will not substitute what it deems is the ‘correct’ decision.

This may mean that the public body will be able to make the same decision again, so long as it does so in a lawful way. If someone wants to argue that a decision was incorrect, judicial review may not be the best option. There are alternative remedies, such as appealing against the ruling to a higher court.

Judicial Review has a very broad context and it can be used to challenge a UK Visa and Immigration Refusal Decision of the Immigration Authorities and Immigration Appellate Authority.

Judicial Review Against a UK Visa, Immigration Refusal Decision

UK Visa Blog Immigration, Settlement, Refusal, Appeal Solicitors

As explained in our post on Remedies for UK Visa Refusal, Judicial Review is one of the potent recourse against a UK Visa and Immigration Refusal Decision. Therefore, this post covers a number of relating to Judicial Review in the context of UK Visa or Immigration Refusals:

  1. UK Visa, Immigration Refusal Decision- Appeal Vs Judicial Review;
  2. Administrative Review Leading to a Judicial Review;
  3. Implications of Judicial Review Against UK Visitor Visa Refusal;
  4. Family Visitor Visa Refusal- Reapply Vs. Judicial Review;
  5. Business Visit Visa Refusal- Reapply or Judicial Review;
  6. General Tourist Visa Refusal- Reapply or Judicial Review;
  7. Business Immigration UK- Tier-1 Entrepreneur Refusal and Judicial Review;
  8. Not Appealable Decisions- Judicial Review Against Ban;
  9. How to File a Judicial Review against a UK Visa or Immigration Refusal Decision?

UK Visa, Immigration Refusal Decision- Appeal Vs Judicial Review

The Judicial Review questions the “Correctness of the Procedure” that has been adopted to reach a “Decision”; whereas an APPEAL questions the “Rightfulness of a Decision” i.e. whether a decision was Right or Wrong.

The right of appeal against a UK Visa and Immigration Refusal is not ubiquitous i.e. an appeal can only be filed against an appealable refusal decision; whereas, Judicial Review can be filed against nearly all types of UK Visa and Immigration Decisions, provided that there are sufficient grounds to prove that correct procedure has not been adopted for reaching a refusal decision.

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Administrative Review Leading to a Judicial Review

Administrative Review, which is a peer-group review, against a refusal decision is allowed in some instances e.g. an applicant can file an administrative review if a Tier 1 Entrepreneur Application or Tier 1 Student Application has been refused within 28 days of the refusal decision i.e. 28 days from the receipt of the refusal letter.

For these types of refusal decisions pertaining to Point Based System (PBS) Tier 1 Entrepreneur, Investor, Graduate Entrepreneur, Exceptional Talent, Tier 2 Workers, Tier 4 Students and Tier 5 Temporary Workers, an Administrative Review should precede a Judicial Review i.e. it is not appropriate to directly file a Judicial Review. However, in case of such types of applications where there is either no provision of an administrative review or no right of appeal such a visitor visas, the applicants need to file a Pre-action Protocol (PEP) before a Judicial Review.

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Applicant Can File a Judicial Review after UK Visit Visa Refusal

Most of the applicants after getting a UK visa refusal letter point out the discrepancies that have been made by the immigration officer in the Refusal Decision. However, very few applicants bother to file a judicial review for reconsideration. Judicial Review can be a viable recourse, for a UK Visa and Immigration Refusal Decision, in most of the cases, especially in those cases where applicants have received more than a couple of successive refusals and think that they were denied a visa without following the proper procedure.

Visiting the UK for family, business and tourism is quite a significant and frequent purpose for most of the applicants. Therefore, it is recommended that after successive refusals applicants may consult an authorised and specialist immigration solicitor for filing a Judicial Review. Like an Appeal case, usually, the turnover/processing time for a Judicial Review is around 6-8 months. See Also: When to Reapply or Challenge a UK Visa or Immigration Refusal Decision.

Family Visitor Visa Refusal- Reapply Vs. Judicial Review

Prior to June 25, 2013, appeals were allowed for refusals of UK Family Visitor Visa Application. Accordingly, many family visitors after getting the refusal used to file either an oral or written appeal.

After June 25, 2013, and especially after April 15, 2015, with the removal of even a limited right of appeal against a UK Visa Refusal, the applicants have no other legal recourse apart from filing a Judicial Review after the receipt of a refusal decision. See Also: When to Reapply or Challenge a UK Visa or Immigration Refusal Decision.

Business Visit Visa Refusal- Reapply or Judicial Review

Many prominent businesspersons, who have travelled across the globe have often faced with an adverse decision on their UK Visitor Visa Application due to their inability to satisfy the Entry Clearance Officer (ECO), in a befitting manner so as to clarify their purpose and intentions of visiting the UK for business purpose.

Therefore, after receiving more than one refusal decision, it is better to discuss with a professional immigration solicitor/adviser before reapplying. At times, it is expedient to file a judicial review rather than submitting a fresh application and making the same mistakes. See Also: When to Reapply or Challenge a UK Visa or Immigration Refusal Decision.

General Tourist Visa Refusal- Reapply or Judicial Review

These types of visitor visas are usually refused because of the inability of the applicant to make his/her intentions, circumstances and reasons of visiting the UK clear in his/her visit visa application. Therefore, it is not possible for the evaluating officer to grant a visa as the onus of proof is on the applicant and the decision is based on a balance of probability for which an applicant is required to give a compelling evidence. Therefore, it is better to hire the service of an able immigration solicitor/consultant before reapplying. Depending on the quality of previous visit visa application, the immigration solicitor might give the advice to file a judicial review instead of reapplying. See Also: When to Reapply or Challenge a UK Visa or Immigration Refusal Decision.

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Judicial Review Against a Tier-1 Entrepreneur Refusal  Decision

The refusal letter of Tier-1 Entrepreneur clearly provides for an Administrative Review. However, if the Administrative Review is not successful, then an applicant can file a Judicial Review.

Since unlike a visitor visa application, usually, Tier-1 Entrepreneur Applicants usually don’t reapply after their first refusal. Therefore, the implications of filing a judicial review are more profound after the receipt of a rejection decision on a Tier-1 Entrepreneur Application, and it is the recommended action – especially if the applicant is convinced that the evaluating officer has committed a mistake of the procedure.

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Judicial Review to Challenge UK Visa or Immigration Ban

A refusal u/s 320(7A) of the Immigration Rules and for visitors, under paragraph V 3.6 of Appendix V, contracts an automatic ten (10) year ban, and in the absence of any appeal rights, filing a Judicial Review is the only legal recourse available to an applicant in most of the cases such as all types of visitor visa and PBS (Tier 1, Tier 2, Tier 4 & Tier 5) applications.

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Filing a Judicial Review against a UK Visa Refusal Decision

A judicial review application is made to either the High Court or the Upper Tribunal. It is a remedy of the last resort because it can only be used where there is no adequate alternative available.

It is essential that an application for judicial review be lodged as soon as possible and in any event, within 3 months of the decision that is being challenged. It consists of the following stages:

  1. Pre-action Protocol (PEP);
  2. Lodging a Judicial Review;
  3. Acknowledgement of Service;
  4. Decision “on the papers” Judicial Review against a UK Visa Refusal;
  5. Oral Renewal Application (Reconsideration Hearing);
  6. Oral Renewal or Reconsideration Hearing;
  7. Negotiations and Settlement, Judicial Review against a UK Visa Refusal Decision;
  8. Main Hearing;
  9. Appealing the Judicial Review Decision;

PEP Letter Against a UK Visa or Immigration Refusal Decision

A Pre-action Protocol (PEP) letter needs to be initiated, which is to warn the Home Office and Entry Clearance Officer that a legal action will be lodged if the mistake is not corrected.

The pre-action letter explains the details as to why the decision that the applicant wants to challenge is wrong and give reasons to that end. This serving of a PEP provides the other side (Home Office/ECO) an ample opportunity to mitigate and avoid any legal action.

Usually, a deadline for a response is set to fourteen (14) days, but if a case has some urgent underpinnings, then a shorter deadline can also be intimated in the PEP.

The Home Office often ignores the Pre-action protocol letters, so once the time limit expires, an application for judicial review is lodged.

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‘Lodging’ Judicial Review against a UK Visa Refusal Decision

Prior to 2013 most immigration judicial review applications had to be made in the High Court. That has now changed, and most of the applications for a judicial review of an immigration decision are presently made in the Upper Tribunal. Judicial review applications of immigration refusal decisions such as refusal of a visitor visa, Tier 1 entrepreneur are required to be lodged in the Upper Tribunal.

  • Judicial Review Claim Form – usually, Form T480 is used for applications in Upper Tribunal. It is titled as ‘Judicial Review Claim Form’ with a subtitle of ‘In the Upper Tribunal Immigration and Asylum Chamber’;
  • Types of Claim Forms – other T series forms are used for various stages of the process:
    • T485 Statement under Upper Tribunal Rule 28A;
    • T482 Fresh Claim JR – Acknowledgement of Service;
    • T483 Fresh Claim JR – Application for Urgent Service;
    • T484 Application Notice;
    • T486 Notice of Change of Solicitor;
  • Details & Address – are required for completing the Form T480 for correspondence with the court. It is critical to notify the court of any subsequent changes of address while the claim is pending before the tribunal;
  • Statement of Facts – is a summary of the subject matter and material facts of the case;
  • Statement of Reasons – forms part of the explanation of the reason to challenge a refusal decision. This explanation is later referred to as ‘grounds for judicial review’.  Solicitors usually ask a barrister to complete this part of the application and deal with the details of the error(s) and omissions made by an Entry Clearance Officer (ECO) whilst reaching an unlawful decision. For instance, if evidence was ignored it is clearly stated and explained on the grounds that why it was important;
  • Remedies – this explains what remedies an appellant is seeking, such as for the decision to be either reversed or reconsidered, for the Home Office to be compelled to act in a certain way or perhaps for damages if an appellant has suffered as a result of the decision he/she is challenging;
  • Urgent Applications – requires filling in another or an extra form depending on the nature of the remedy. Form T483 is for the urgent consideration of the court. Their use is justified in cases such as visit visa refusal decisions such as a family wedding or funeral. Since the abolition of the appeal rights in 2013, it is now quite difficult for the Home Office to maintain that there is an alternative remedy and these applications will probably be easier to justify.

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Acknowledgement of Service, JR Against a UK Visa Refusal Decision

Once the application is executed, an appellant has to wait. The Home Office is supposed to respond by furnishing an ‘Acknowledgement of Service’ within 14 days. The rule mentioned above is quite often breached by the Home Office, but with no known action by a tribunal.

After the receipt of an Acknowledgement of Service, which includes the Summary Grounds of Defence, that explains why Home Office is contesting the claim. This normally is an aggressive document, and it seems to be entirely routine for the Home Office lawyers to allege that an immigration judicial review is ‘totally without merit’ no matter how much strong the case is.

Sometimes the Acknowledgement of Service will suggest to settle or concede a case by reconsidering a refusal decision or even agreeing to issue a visa. In that case, the judicial review will need to be formally withdrawn, which requires a court orderOnce the process of judicial review is initiated, then it cannot be ended by just walking away as a formal order is needed to complete the process.

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Decision “on the papers”, JR Against a UK Visa Refusal Decision

In case the Home Office does not concede then the case will be contested. Once the claimant lodged the claim form and defendant provides the Acknowledgement of Service along with the Summary Grounds of Defence, the case is contested, and a judge needs to give a decision:

  • if the judge holds that there are sufficient grounds (on the papers), then there is no need for an oral hearing, and permission to proceed further is granted for a full hearing;
  • if the judge considers that the case is ‘not arguable’ on the basis of paperwork, then permission for a full hearing will be refused. This usually happens even for quite strong cases, whose challenge becomes successful eventually.

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Oral Reconsideration for Permission Refused ‘on the papers’

If the permission is rejected ‘on the papers’ (just on the basis of written arguments of both the parties), then it is usually possible to apply for an oral renewal or a reconsideration hearing.

The Oral Renewal/Reconsideration Hearing is a short hearing wherein the appellant lawyer addresses the judge directly in person. The Home Office does not have to be represented at the Oral Renewal; however, the Home Office usually send its lawyer to oppose the case.

The reconsideration application form is included in the paperwork with the refusal of permission. A short statement of reasons enumerating the reasons as to why the earlier judgment was wrong is added. A barrister usually drafts this document. This is required to furnish within seven (7) days from the date of permission of refusal.

Once this is submitted, then there is a waiting time before a hearing date is notified for the reconsideration hearing.  The waiting time depends on how busy the courts are; and runs into several weeks of notice.

The reconsideration hearing will usually be allocated approx. one hour of court’s time, which includes submissions from either party and the judge announcing the decision with reasons in the court. The hearings often exceed the scheduled time.

In case the permission is granted, then the next stage is to prepare for a full hearing.

In the event a permission is refused, an appeal can be lodged with the Court of Appeals.

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Oral Reconsideration Hearing- JR Against a UK Visa Refusal

Time for an oral renewal or reconsideration hearing is allocated by the court or the tribunal. It is an opportunity to persuade a judge that the case is arguably on its merits. In most judicial reviews the respondent is not represented at renewal hearing; however, in immigration cases, the Home Office often assigns a lawyer to oppose the application. The judge decides the case there and then, and announce the verdict in the court.

In case the permission is refused, then there is a right of appeal to the Court of Appeals. In case a  permission is granted, then the next step is a full hearing.

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Negotiations and Settlement- JR Against a UK Visa Refusal

It is customary for the Home Office to negotiate a ‘settlement’, in the event permission for a judicial review application is granted, whether it occurs at the ‘on the papers’ stage or at an ‘oral renewal’. A grant of permission is a strong indication that a judge thinks there are definite merits to the case. Accordingly, Home Office is compelled to look at the decision so as to consider whether it is wise to defend the refusal decision any further.

In case the Home Office decides to yield, this is referred to as either ‘conceding’ or ‘settling’ the case.

Consent Order

If the Home Office ‘concedes‘, then the Treasury Solicitors (representing the Home Office) will draft a letter, which is called a ‘consent order’. In the consent order, the Home Office suggests the appellant ‘to withdraw the case‘. It also provides the details of concessions/actions that the Home Office is agreeing to undertake within three (3) months from signing of the consent order.

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Main Hearing- Judicial Review Against a UK Visa Refusal

The Upper Tribunal (Procedure) Rules 2008 prescribes a few steps, which the parties are required to undertake prior to a full hearing. These include an exchange of bundles and skeleton arguments.

The appellant will first submit the reasons for challenging the refusal decision, which is unlawful. The respondent will rebuke the reasons i.e. will explain as to why the refusal decision is not unlawful. The judge usually makes a decision there and then and announces it in court.

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Filing an Appeal at the ‘Court of Appeals’ against the Decision

If the judicial review application is successful, then the challenged decision is normally ‘quashed’, and at times a mandatory order is also made to issue a visa.

If the application is dismissed, then a right of appeal available. The appellant can file an appeal at the Court of Appeals, for which a Permission is required to be solicited.

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Related: How Immigration Solicitors help Challenge a UK Visa or Immigration Refusal Decision?When to Reapply or Challenge a UK Visa or Immigration Refusal DecisionDetails of Appeal Process to Challenge a UK Visa Refusal DecisionGrounds of Appeal,  Lodging an AppealAppeal NoticesAppeals: Legal FrameworkAppeals Against An Immigration Refusal Decision, and UK Visa Refusal: Rights of Appeal

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