Judicial Review is an important remedy and is used to challenged decisions made by public bodies, or those made on their behalf. In immigration cases, it can be used to challenge decisions which do not provide a statutory right of appeal.
Whilst important, an application for Judicial Review should only be used when it is appropriate to do so. A decision can only be challenged by way of Judicial Review if the decision is unlawful, and there is no alternative remedy.
The lawfulness of a decision can be challenged on numerous grounds, these can usually be categorised into illegality, irrationality and unfairness. In Immigration cases, the decision-making body is usually the Home Office or the Entry Clearance Officers (through the Foreign and Commonwealth Office).
Judicial Review procedure
Judicial Review proceedings are lodged before the High Court or the Upper Tribunal (for most Immigration matters). In most cases, the Claimant must first seek permission from the relevant Court. This application must be made as soon as possible, but no later than 3 months before the relevant decision is made.
The application also requires the pre-action protocol procedure to be followed, in most cases. This means the proposed Claimant should send the Defendant a letter before action which complies with the Pre-Action Protocol on Judicial Reviews. This letter should contain specific information such as an outline of the grounds for Judicial review and must also provide sufficient time for the proposed Defendant to respond.
Both parties have an ongoing duty to review the merits of the case and must take necessary action if they consider that the merits of their case fall below the necessary threshold.
If there is no response to the Pre-Action Protocol within the specified timescale, or the response is negative, the proposed Claimants may then proceed to lodge an application for permission for Judicial review, if they consider there still are sufficient merits to proceed.
The permission application is normally dealt by a single judge on papers, and a written decision is provided. If permission is granted, the matter proceeds to a full hearing and necessary directions are given.
If, however, the permission application is refused, the Claimant can request an oral permission hearing, if they still consider there are sufficient merits to do so.
Once the matter proceeds to a full hearing, the Judge can then decide an appropriate remedy for the application. In most cases, the losing party will be liable for the costs of the other party.
Remedies
A Judicial Review challenge can lead to various remedies which are:
- A quashing order: This overturns the earlier decision and requires the public authority to make a fresh decision
- A prohibiting order: This is used to prevent the public body from taking a certain action. In Immigration cases, this can be an order to prevent the removal of an individual from the UK until a decision on his case is made.
- Mandatory order: This requires the public body to take certain action. This can be used in delay cases and can require the body to make a decision within a certain timescale. This is also used in unlawful detention cases, where the release of an individual can be ordered.
- Declaration: This order is used to declare the lawfulness of a decision and is routinely used in unlawful detention which can then lead to an award of damages.
Comment
Judicial Review proceedings are complex proceedings which can have consequences for the parties involved. In most cases, it is suitable to seek legal advice before commencing these proceedings.