1. Judicial Review
Immigration Judicial Review against a UK Visa Refusal Decision
The immigration judicial review is a type of a court proceeding in which a judge examines the lawfulness of a decision. A judicial review is made to the Upper Tribunal. It is a remedy of the last resort because it can only be used where there is no other adequate alternative is available.
The UK immigration judicial review focuses on the procedure rather than the outcome of a determination. In fact, judicial review is not really concerned with the outcome, as long as a decision maker- Home Office, ECO or immigration officer- has followed the right procedure. Therefore, the tribunal does not substitute what it deems is the ‘correct’ decision. Accordingly, 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.
Perhaps, if someone wants to argue that a decision was incorrect, judicial review may not be the best option. Therefore, may look for alternative remedies, such as appealing against the ruling to a higher court. Nevertheless, immigration judicial review in the UK has a very broad context. And it is quite frequently used to challenge a UK visa and immigration refusal and 10 year ban decisions.
Examples of Judicial Review
Indeed, the types of decisions which may fall within the range of Judicial Review include:
– Decisions of local authorities in the exercise of their duties to provide various welfare benefits and special education for children in need of such education
– Certain decisions of the immigration authorities and the Immigration and Asylum Chamber
– Decisions of regulatory bodies
– Decisions relating to prisoner’s rights
Immigration Judicial Review Vs. UK Visa Appeal
The UK immigration judicial review questions the correctness of the procedure that has been adopted to reach a decision. However, an immigration appeal questions the rightfulness of a decision. After the implementation of the Immigration Act 2024, the right of appeal against a UK visa and immigration refusal is only limited on Human Rights grounds. An immigration judicial review can be filed against nearly all types of UK visa refusal decisions if there are sufficient grounds to prove that a decision maker has not followed the correct procedure.
In terms of Part 54 of Judicial Review and Statutory Review, Civil Procedure Rules, it is essential that an applicant should file a judicial review promptly and in any event, within 3 months of a UK visa refusal or ban.
Immigration Judicial Review Processing Time
Perhaps, the average processing time for a UK immigration judicial review depends on the stage in which a decision is reached. Therefore, if a decision is reached at the Immigration Pre-action Protocol (PEP) Letters then the whole process can conclude within 2-4 weeks. However, if it goes to the substantive hearing stage then it may up to 9-10 months.
We have now (Jan 5, 2021) entered lockdown for the third time. The courts and tribunals must continue to function. The position remains that attendance in person where necessary is permitted under the proposed new regulations.
2. Challenge Refusals
How Immigration Judicial Review Can Help Challenge Visa Refusal?
Most of the applicants after getting a UK visa refusal letter point out the discrepancies made in the refusal decision. However, very few applicants file a judicial review for reconsideration. In fact, Judicial Review can be a viable recourse against a UK visa and immigration refusal decision. especially where an applicant has received successive refusals and a reapplication ceased to remain a viable option. Therefore, UK immigration judicial review is one of the potent recourse for challenging:
- All type of UK visitor visa refusals
- PBS Tier 1, Tier 2 work, Tier 4 student and Tier 5 temporary work visa refusals
- UK Visa 10 Year Ban
- Other Types of UK visa refusals with no or limited right of appeal
From 25 June, 2013, there will be no right of appeal against the refusal of a family visit visa application
UK Family, Tourist, Business Visitor Visa Refusals
In fact, prior to June 25, 2013, applicants could appeal against a UK family visitor visa refusal. Moreover, after April 15, 2015, with the abolishment of even a limited right of appeal, there is no other legal recourse, apart from Judicial Review, to challenge UK visitor visa refusal decisions. However, instead of filing a judicial review, in most of the situations, it is expedient to reapply after a UK visitor visa refusal. Nevertheless, if a tourist, family or business visitor visa is refused on multiple occasions then an applicant may opt for filing a judicial review to challenge a UK visitor visa refusal decision.
Moreover, after a UK visitor visa 10-year ban, a reapplication is only seldom a viable solution. Therefore, after receiving a UK visa 10-year ban, an applicant needs to look into efficacy of challenging a visitor visa refusal through judicial review on the merits of the application and the details of refusal letter.
PBS Tier 1, Tier 2 Work, Tier 4 Student Visa Refusals
In fact, PBS applicants have an option of filing an Administrative Review within 28 or 14 days from the date of an entry clearance and leave to remain refusal decision, respectively. However, an administrative review is a peer-group review and often has obvious flaws. Therefore, the chances of a successful administrative review are usually very low i.e. up to 10-20%.
Moreover, in most of the instances, a reapplication is not a viable option after a refusal of PBS application. Therefore, if a PBS applicant is not satisfied with the outcome then may consider filing an immigration a judicial review. However, before filing a judicial review against a Tier 1 Entrepreneur, Investor, Graduate Entrepreneur, Exceptional Talent, Tier 2 General, Ministers of Religion, Sportsperson, Tier 4 Students and Tier 5 Temporary Workers visa refusal decision, it is important to file an Administrative Review. In fact, it is not appropriate to directly file a Judicial Review when an applicant has an option of administrative review.
10-year Deception and Re-Entry Bans
Challenging Other refusal decisions with No Right of Appeal
In the absence of a right of appeal, immigration judicial review may help challenge a refusal of UK startup, innovator, ancestry or types of visa applications. Accordingly, an immigration judicial review is an effective remedy against most of the refusal decision with no or limited right of appeal. Perhaps, especially after exhausting all the other available options i.e. reapplication, reconsideration and administrative review. Therefore, an applicant can discuss with a specialist immigration solicitor for preparing a substantive judicial review application against a UK visa refusal under the following Acts and legislations:
- Immigration Act 1971
- Immigration Act 1988
- Asylum and Immigration Appeals Act 1993
- Asylum and Immigration Act 1996
- Immigration and Asylum Act 1999
- Nationality, Immigration and Asylum Act 2002
- Asylum and Immigration (Treatment of Claimants, etc.) Act 2004
- Immigration, Asylum and Nationality Act 2006
- UK Borders Act 2007
- Immigration Act 2014
- Immigration Act 2016
Moreover, an applicant can also contact an immigration specialist for making a substantive application for a judicial review against a decision of the First-tier Tribunal, for which no appeal lies with the Upper Tribunal.
Challenging a Refusal Decision in Administrative Court
Furthermore, apart from Judicial Review, a specialist immigration solicitor can also help challenge the following immigration-related decisions in an Administrative Court:
- the validity of primary or subordinate legislation (or of immigration rules)
- the lawfulness of detention
- a decision concerning inclusion on the register of licensed Sponsors maintained by the UKBA
- a decision which determines British citizenship
- the decision of the Upper Tribunal
- a decision relating to asylum support or accommodation
- a decision of the Special Immigration Appeals Commission
- an application for a declaration of incompatibility under the s.4 of the Human
Rights Act 1998; and
- a decision which is certified (or otherwise stated in writing) to have been taken by the Secretary of State wholly or partly in reliance on information which it is considered should not be made public in the interests of national security
Immigration Judicial Review Applications
During 2013/14 to 2019/20 Q3, the Upper Chamber (UTIAC) has received 74,553 UK visa and immigration judicial review applications with the following yearly breakup:
- 2013/14 (7,841)
- 2014/15 (15,179)
- 2015/16 (15,727)
- 2016/17 (13,372)
- 2017/18 (10,011)
- 2018/19 (7,850)
- March-June 2019/20 Q1 (1,731)
- Jul-Sept 2019/20 Q2 (1,516)
- Oct-Dec 2019/20 Q3 (1,326)
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During 2013/14 to 2019/20 Q3, the UTIAC has disposed a total 77,077 immigration judicial review cases for UK visa refusal decisions with the following breakup:
- Determinations: 51,404 judicial review cases, approximately 66.69% of the total 77,077 disposals, decided at the Paper, Oral and Substantive hearings
- Transfers: UTIAC transferred 1,894 judicial review case, nearly 2.46% of the total 77,077 disposals, the Administrative Court
- Other (disposals): 23,803 judicial review cases, approximately 30.88% of the total 77,077 disposal, were withdrawn or not served. Perhaps, mainly due to Home Office conceding/settling the matter at the Acknowledgement of Service stage.
5. Success Rate
Successful Immigration Judicial Review Decisions
From 2013/14 to 2019/20 Q3, the Upper Chamber (UTIAC) has disposed a total 77,077 judicial review cases relating to UK visa and immigration refusal decisions. During the period, UTIAC transferred 1,894 judicial review cases to the Administrative Court, which accounts for nearly 2.46% of the total 77,077 disposals. Therefore, the Upper Chamber has decided 75,183 of which 28,095 cases decided in the favour of the appellants at different stages of the immigration judicial review process:
- Acknowledgement of Service: 23,803 of the total 77,077 disposals settling/conceding at the Acknowledgement of Service stage
- Paper Hearings: 4,002 of the total 55,195 Paper Hearings allowed/granted in favour of the appellant
- Oral Renewal or Reconsideration Hearings: 3,298 of the total 13,518 Oral Renewal or Reconsideration hearings allowed/granted in favour of the appellant
- Substantive Hearings: 287 of the total 974 Substantive hearings allowed/granted in favour of the appellant
Immigration Judicial Review Success Rate
The immigration judicial review success rate at the Acknowledgement of Service, Paper, Oral Renewal and Substantive hearing stage is 30.88%, 7.25%, 24.39% and 29.49%, respectively. Therefore, if we combine the total favourable disposals then the immigration judicial review success rate is 37.37% against the UK visa refusal decisions. If 14,095 Totally Without Merit (TWM) immigration judicial review cases at the Paper hearing stage are excluded then the success rate is as high as 45.99%. Moreover, 10-20% of applications are also successful at the Immigration Pre-action Protocol (PEP) Letters stage. Therefore, the chances of a successful immigration judicial review are more than 50%.
the chances are that a favourable settlement will reach for the claimant before trial (well in excess of 50% of cases settled).
UK Visa and Immigration Judicial Review Procedure
The UK visa and immigration judicial review procedure mainly relates to:
- Immigration Pre-action Protocol (PEP) Letters
- Acknowledgement of Service
- Paper Hearing
- Reconsideration Application
- Oral Renewal or Reconsideration Hearing
- Substantive Hearing
If an immigration judicial review is refused then can applicant can file an appeal against the decision..
“judicial review proceedings” means proceedings within the jurisdiction of the Upper Tribunal pursuant to section 15 or 21 of the 2007 Act
1. Immigration Pre-action Protocol Letters
Perhaps, the purpose of a immigration pre-action protocol (PAP) letters is to warn the Home Office/Entry Clearance Officer (ECO): if the mistake is not corrected (i.e. the rejection decision is not overturned) then the applicant will lodge a legal action (i.e. judicial review). Accordingly, the immigration pre-action protocol letters explains the details as to why the refusal decision is wrong by giving concrete reasons. Indeed, this serving of immigration pre-action protocol letters provides the Home Office/ECO an opportunity to avoid the judicial review.
Immigration Pre-action Protocol Letters: Response Time
The immigration pre-action protocol letters response time is usually set to fourteen (14) days. However, if a case is of urgent nature then an applicant’s representative (solicitor) can intimate a shorter deadline. In fact, the Home Office often ignores the Pre-action protocol (PEP) letters. Therefore, once the time limit of 14 days expires then the applicant’s representative lodges an immigration judicial review.
Prior to 2013 most immigration judicial review applications had to be made in the High Court. However, since November 2013 the Upper Tribunal (Immigration and Asylum Chamber) (UTIAC) decides immigration judicial reviews. Accordingly, the lawyer files and lodge the judicial review claim form T480 in the UTIAC. Perhaps, for correspondence with the court, the judicial review claim form requires address details. And it is critical to notify the court of any subsequent changes of address while the claim is pending before the tribunal. Furthermore, apart from T480, the other T series forms used in the various stages of the immigration judicial review procedure are:
- 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
Grounds of UK Visa and Immigration Judicial Review
Quite clearly, the statement of fact on T485 claim form, is a summary of the subject matter and the material facts of the case. Moreover, the statement of reasons forms part of the explanation of the reasons for challenging a decision. Indeed, this explanation later referred to as ‘grounds for immigration judicial review’. As a practice, solicitors usually ask barristers to complete this part of the application as this explains the error(s) and omissions made by the Home Office/ECO whilst reaching an unlawful decision. For instance, if Home Office has ignored evidence then T485 claim form will clearly explain the details. Moreover, the judicial review claim form will also solicit the remedies such as:
- reversing or reconsidering a refusal decision
- compelling the Home Office to act in a certain way
- claiming damages if an appellant has suffered as a result of the decision
How to file an urgent immigration judicial review?
Perhaps, this requires filling another or an extra form depending on the nature of the remedy. In fact, Form T483 is for the urgent consideration of the court. For instance, it is quite possible to justify an urgent immigration judicial review in case of a UK visitor visa refusal for attending a family wedding or funeral.
3. Acknowledgement of Service
In fact, after lodging the UK immigration judicial review, an appellant needs to wait for the response of the Home Office. Perhaps, as per procedure, the Home Office needs to furnish a response (i.e. Acknowledgement of Service) within 14 days. However, the Home Office quite often fails to respond within 14 days. And the tribunal usually does not take any action for the delay.
What acknowledgement of service usually states?
As per practice, the acknowledgement of service usually includes the summary grounds of defence. And accordingly, explains the reasons why the Home Office is contesting the claim. Perhaps, the acknowledgement of service is quite often an aggressive document. In fact, it is a routine practice of the Home Office lawyers to allege that an immigration judicial review against is without merit. Perhaps, irrespective of the merits of the case.
Nevertheless, at times the Acknowledgement of Service suggests to settle/concede a case by reconsidering a refusal decision or even agreeing to issue a visa. Quite clearly, even in such instances, the appellant solicitor needs to formally withdraw the judicial review with a court order as once the process of immigration judicial review is initiated, then it cannot end by just walking away as a formal order is required to complete the process! However, if the Home Office does not concede then the appellant contests the refusal decision through a paper hearing.
Perhaps, in the light of the official statistics, it is important to note that nearly 23,803 of the total 77,077 UK Immigration Judicial Review cases has been withdrawn or settled at the Acknowledgement of Service stage before the Paper, Oral or Substantive hearings. Therefore, the UK judicial review success rate at the Acknowledgement of Service stage is approximately 30.88%.
4. Paper Hearing
Once the claimant lodged the claim form and the defendant provides the Acknowledgement of Service along with with the Summary Grounds of Defence, then both the parties need to contest. And a UTIAC judge gives a decision on the merits of the case. Therefore, if the judge holds that there are sufficient grounds, then there is no need for an oral hearing, and permission to proceed further is granted for a full hearing. However, If the judge considers that the case is ‘not arguable’ on the basis of paperwork, then refuses permission for a hearing. Perhaps, this quite often happens even for cases with very strong merit, which may eventually become successful. Therefore, if the permission is rejected on the papers, then it is usually possible to apply for an oral renewal or a reconsideration hearing.
Immigration Judicial Review Success Rate at Paper Hearing
From 2013/14 to 2019/20 Q3, the Upper Chamber (UTIAC) has disposed a total 55,195 judicial review cases against UK visa and immigration rejection decisions at the Paper hearing stage with the following results:
- 4,002 judicial review applications has been Allowed/Granted
- 51,193 judicial review applications has been Dismissed/Refused, which included 14,095 Totally Without Merit (TWM) applications
The UK immigration Judicial Review success and refusal rate at the Paper hearing stage is 7.25% and 92.75%, respectively. However, if we exclude the Totally Without Merit 14,095 applications then the UK judicial review success and refusal rate at the Paper hearing stage is 9.74% and 90.26%, respectively.
Please note: in refusing permission for judicial review, a judge can certify a case to be ‘totally without merit (TWM)’. Moreover, the ‘Totally Without Merit’ figures are only available for applications for permission to lodge Judicial Reviews dealt with on papers. The determination and refusal numbers, therefore, exclude the permission applications dealt with orally and which are included in the total Determined Cases.
5. Reconsideration Application
For seeking an oral renewal, an appellant’s lawyer needs to devise a reconsideration application, which includes:
- a reconsideration application form
- the refusal of permission (paper hearing)
- a short statement of reasons to enumerate why the earlier judgment was wrong?
A barrister usually drafts the reconsideration application and submits it within seven (7) days from the date of paper hearing refusal. However, after submitting reconsideration application there is a waiting time of a min 4-8 weeks for receiving notification for the reconsideration hearing. Perhaps, the waiting time depends on the workload of the courts. Therefore, it may take several weeks for the receiving the intimation for the date of the reconsideration hearing.
6. Oral Renewal or Reconsideration Hearing
The Oral Renewal/Reconsideration Hearing is a short hearing wherein the appellant lawyer addresses the judge directly in person. Therefore, it is an opportunity to persuade a judge that the case is arguable on its merits. As a matter of fact, in other types of judicial reviews, the respondent is not represented at oral renewal hearing. However, in immigration cases, the Home Office often assigns a lawyer for opposing the application.
As per procedure, the court usually allocates one hour for the reconsideration hearing. However, the immigration judicial review hearings may often exceed the scheduled time. During the course of the hearing both the parties make their submissions. And accordingly a UTIAC judge decides the case there and then, and announces the verdict in the court. If the court grants permission then the next stage is the full hearing. However, if the court refuses an oral renewal application then appellant can go the Court of Appeals.
When the Home Office may negotiate a settlement?
It is customary for the Home Office to negotiate a ‘settlement’, in the event permission for a substantive hearing at the ‘papers’ or ‘oral renewal’ stage. A grant of permission is a strong indication that a judge thinks there are definite merits to the case. Accordingly, this compels the Home Office to consider whether it is wise to defend the refusal decision any further.
In case the Home Office decides to yield, this refers to as either ‘conceding’ or ‘settling’ the case. Therefore, 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.
However, if the Home Office does not concede, then in term of The Upper Tribunal (Procedure) Rules 2008 both the parties need to undertake a few steps prior to a full hearing. Perhaps, these usually include an exchange of bundles and skeleton arguments.
Judicial Review Oral Renewal Success Rate
Apparently, from 2013/14 to 2019/20 Q3, the UTIAC has disposed a total 13,518 immigration judicial review cases for UK visa refusal has been decided at the Oral renewal or reconsideration hearing stage. Accordingly, 3,298 judicial review applications have been Allowed/Granted at the Oral renewal stage. However, 10,220 judicial review applications has been Dismissed/Refused at the Oral renewal stage. Therefore, the UK immigration Judicial Review success and refusal rate at the Oral renewal or reconsideration stage is 24.39% and 75.61%, respectively.
7. Substantive Hearing
The appellant will first submit the reasons for challenging the refusal decision, which is unlawful. Afterwards, the respondent will rebuke the reasons i.e. will explain as to why the refusal decision is not unlawful? Accordingly, the judge makes a decision there and then and announces it in court. Therefore, if the immigration judicial review is successful, then the refusal decision is normally ‘quashed’. However, at times the tribunal may also issue a mandatory order for the issuance of the visa. However, if Upper Tribunal dismisses the immigration judicial review at the substantive hearing, then there is a right of appeal available. Accordingly, the appellant can file an appeal at the Court of Appeals. However, this requires permission from the upper chamber.
Judicial Review Substantive Hearing Success Rate
Apparently, from 2013/14 to 2019/20 Q3, the UTIAC has disposed a total 974 immigration judicial review cases for UK visa refusal has been decided at the Substantive hearing stage. Accordingly, 287 judicial review applications have been Allowed/Granted at the Substantive hearing stage. However, 687 judicial review applications has been Dismissed/Refused at the Oral renewal stage. Therefore, the UK immigration Judicial Review success and refusal rate at the Substantive hearing stage is 29.49% and 70.51%, respectively.