This relates to Judicial Review Procedure Immigration Cases and provides the details of the steps involved in filing a judicial review for UK Visa and Immigration Refusals and 10 Year Ban decisions such as visit visa refusal, family visit visa refusal, Tier 1 Entrepreneur Refusals and bans.
Judicial Review Procedure
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.
Immigration Judicial Review Time Limit
In terms of Part 54 of Judicial Review and Statutory Review, Civil Procedure Rules, it is essential that a claim must be filed/lodged as soon as possible and in any event, within 3 months of the decision that is being challenged.
PART 54 – JUDICIAL REVIEW AND STATUTORY REVIEW – Civil Procedure Rules
Time limit for filing claim form
(1) The claim form must be filed –
(a) promptly; and
(b) in any event not later than 3 months after the grounds to make the claim first arose.
How Long Does a Judicial Review Take?
Since a judicial review consists of a series of steps viz. Pre-action Protocol (PEP), lodging judicial review, Acknowledgement of Service, A Decision “on the papers”, Oral Hearing, Reconsideration Hearing, Negotiations and Settlement, Main Hearing and Appeal, therefore, it usually takes 6-8 months before a final decision is reached.
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.
Lodging Judicial Review
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.
Acknowledgement of Service
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 order. Once 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.
A Decision “On the Papers”
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.
Judicial Review Oral Hearing
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.
Judicial Review Oral Renewal or Reconsideration Hearing
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.
Negotiations and Settlement
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.
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.
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.
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.