The Home Office published new enforcement instructions and guidance on 31 October 2016 on, among other things, judicial reviews and injunctions.
The new guidance limits even further the situations in which judicial review proceedings will lead to the Home Office suspending a forced removal or deportation.
A judicial review is a form of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body. In asylum and immigration cases, that public body will usually be the Home Office.
A judicial review can challenge the way a decision has been made, if you believe it was illegal, irrational, or unfair. It is not really about whether the decision was “right”, but whether the law has been correctly applied and the right procedures have been followed.
In some cases, judicial review proceedings against a removal/deportation (if permission for pursuing a judicial review has been granted) will mean that the Home Office will defer the removal/deportation.
There are, however, several exceptions to this. The Home Office will not defer removal if:
- Within the previous six months, an application for judicial review of removal directions has been brought AND
- the Home Office decides that the new application for judicial review is on the same or virtually identical grounds, or on the same evidence, as the previous application; or decides that the grounds raised in the new application could reasonably have been raised in the previous application.
The time period for this consideration used to be three months, but as of last week is now six months.
There is now also a new situation in which judicial review proceedings will not defer removal:
- if the judicial review proceedings are brought during the three month removal window. During the removal window period, an injunction will be required to stop removal.
As before, if you are due to be removed on a charter flight and bring judicial review proceedings against the removal. An injunction will be needed to stop the removal.
Here’s a handy diagram provided by the Home Office (from their 2018 guidance document) to summarise when judicial review proceedings will suspend removal, and when they won’t. Note the handy get-out the Home Office gives itself, of deciding whether or not a judicial review is “bound to fail” (a question for a judge, not the Home Office, but never mind that).
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