This relates to the UK Immigration Judicial Review Procedure, decisions and success rate. Certainly, an applicant can file an immigration judicial against a UK visa and immigration refusal and decision with no or limited right of appeal. Accordingly, the post covers the following topics:
- Immigration judicial review frequently asked questions (FAQs)
- UK Immigration Judicial Review Procedure to challenge a refusal
- UK Immigration judicial review success rate 2013-18
1) Immigration judicial review frequently asked questions (FAQs)
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. Accordingly, 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.
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.
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.
What is a Per-action Protocol (PEP) Letter?
A Pre-action Protocol (PEP) letter needs to be initiated, which is to warn the Home Office and Entry Clearance Officer that 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.
2) Immigration Judicial Review Procedure to challenge a refusal
Prior to 2013 most immigration judicial review applications had to be made in the High Court. However, this has changed. And most of the applications for a judicial review of an immigration decision are made in the Upper Tribunal. Accordingly, immigration judicial review applications for challenging a visitor visa, Tier 1 entrepreneur etc. refusal decision lodged in the Upper Tribunal.
Immigration 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’.
Moreover, details and 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;
Other forms in the immigration judicial review procedure
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
Statement of Facts
The statement of fact is a summary of the subject matter and the material facts of the case.
Statement of Reasons: the grounds for immigration judicial review
The statement of reasons forms part of the explanation of the reason to challenge a refusal decision. This explanation later referred to as ‘grounds for immigration 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 an applicant is seeking
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 immigration judicial review applications
This 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 by the Home Office
As per the UK immigration judicial review procedure, an appellant needs to wait after executing the application. The Home Office is supposed to respond by furnishing an ‘Acknowledgement of Service’ within 14 days. Perhaps, the Home Office quite often fails to respond within 14 days. However, the tribunal usually does not take any action for the delay.
After the receipt of an Acknowledgement of Service, which includes the Summary Grounds of Defence, that explains why the 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 immigration judicial review will need to be formally withdrawn, which requires a court order. Once the process of immigration judicial review is initiated, then it cannot be ended by just walking away as a formal order is needed to complete the process.
An immigration judicial review decision on papers
In case the Home Office does not concede then the case will be contested. Once the claimant lodged the claim form and the 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.
An immigration judicial review decision after an 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 for approx. one hour of the 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 permission is refused, an appeal can be lodged with the Court of Appeals.
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 immigration 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 of 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 an immigration 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, the 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 refers to as either ‘conceding’ or ‘settling’ the case.
Immigration judicial review procedure for a 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.
The main hearing: immigration judicial review procedure
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.
Appealing 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.
3) UK Immigration judicial review success rate 2013-18
According to Official Statistics, since Nov 2013, UTIAC has determined 42,705 Immigration Judicial Review Cases. Apparently, a majority of the cases settled on ‘paper’ in favour of claimants. Therefore, only 8,885 and 679 cases went through Oral or Substantive Hearing, respectively. In total 52,269 Judicial Review Applications determined on paper, oral or substantive hearing.
Immigration Judicial Review Success Rate
The immigration judicial review success rate has remained as high as 29% and 38% for oral and substantive hearing, respectively. Moreover, the ratio of the cases totally without merit has remained as low as 10.03%. As per procedure, unsuccessful cases at the Oral Hearing usually request Substantive Hearing. Therefore, the judicial review success rate is as high as 32.20%.
Most cases settle before the permission stage and of these a very high percentage settle in a claimant’s favour. The permission stage presents a substantial hurdle. The surviving claims roughly around 80% weed-out at this stage. But of those claims proceeding beyond permission, the chances are that a favourable settlement will reach for the claimant before trial (well in excess of 50% of cases settled).
UK Immigration Judicial Review Success Rate 2017/18
During 2017/18 Q3, a total of 3,246 Judicial Review Applications determined. 255 applications were found to be Totally Without Merit. The Immigration Judicial Review Success Rate for Oral Hearing and Substantive Hearing was 25% and 20%, respectively.
Immigration Judicial Review Decisions 2017/18 Q2
During 2017/18 Q2, a total of 2,593 Judicial Review Applications determined on papers. 211 applications were found to be Totally Without Merit. The Immigration Judicial Review Success Rate for Oral Hearing and Substantive Hearing was 29% and 38%, respectively.
During 2017/18 Q1, a total of 3,170 Judicial Review Applications determined. 439 applications were found to be Totally Without Merit. The Immigration Judicial Review Success Rate for Oral Hearing and Substantive Hearing was 28% and 38%, respectively.
Immigration Judicial Review Statistics 2016/17
During 2016/17, a total of 13,151 Judicial Review Applications determined. 2,214 applications were found to be Totally Without Merit. The Immigration Judicial Review Success Rate for Oral Hearing and Substantive Hearing was 22% and 28%, respectively.
UK Immigration Judicial Review Success Rate 2015/16
During 2015/16, a total of 16,792 Judicial Review Applications determined. Nevertheless, 6,318 applications dismissed as these don’t no merit. The Immigration Judicial Review Success Rate for Oral Hearing and Substantive Hearing was 23% and 19%, respectively.
Immigration Judicial Review Decisions 2014/15
During 2014/15, a total of 10,083 Judicial Review Applications determined. However, 1,920 applications had no merit. The Immigration Judicial Review Success Rate for Oral Hearing and Substantive Hearing was 19% and 29%, respectively.
Immigration Judicial Review Success Rate 2013/14
During 2013/15, a total of 3,234 Judicial Review Applications determined on papers and oral hearing. However, 693 applications had no merit. The Immigration Judicial Review Success Rate for Oral Hearing was 16.0%.
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