To JR or not to JR?

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A recent academic report on immigration judicial reviews provides interesting insight into the issue of when a judicial review is a good idea.

We address this issue in the Toolkit section on judicial reviews.

The report (Immigration Judicial Reviews: An Empirical Study) sheds light on this question from the perspective of litigants (people seeking a judicial review of a Home Office decision), legal representatives and judges.

What is a judicial review?

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.

Why might you need a judicial review?

You don’t always get the right to appeal a negative immigration/asylum decision. Read more in the After a Refusal section of the Right to Remain Toolkit here.

Situations in which you may want to consider a judicial review include:

  • if your asylum or human rights claim has been certified by the Home Office (no right of appeal within the UK)
  • if your further submissions have been rejected as not a fresh claim, with no right of appeal
  • if you have been detained unlawfully
  • if you have been refused permission to appeal at the Upper Tribunal and you still believe you can demonstrate an error of law has occurred in deciding your application
  • to try and challenge an imminent removal (apply for interim relief – an injunction).
  • if your immigration application has been refused, you have no right of appeal, and an administrative review has not resolved the matter satisfactorily.

Is a Judicial Review a good idea?

In the Right to Remain Toolkit, we suggest that people think very carefully about whether a Judicial Review is right for them:

What do claimants, lawyers and judges say?

Firstly, it’s worth noting that over 90% of judicial review applications are refused at the permission stage, on the papers.

However, some people will already have spent a lot of money on private lawyers to get that far. It’s very difficult to get legal aid representation for a judicial review application. Read more in the Your Legal Case section of our Toolkit here.

In the report, the case files examined as well as interviews with judges and legal representatives show a clear (and well-known) problem with bad representation – some lawyers being very happy to take money off people for judicial review applications that clearly have no merit.

The problem of copy and paste template applications, that circulate especially in detention centres, is highlighted. Sometimes these are people without legal representation, desperate to take action themselves; other times, they are submitted by poor quality lawyers.

In the report, one judge highlights that representing yourself (being a “litigant in person”) may be better that having a bad legal representative. They point out that a bad representative might:

pursue challenges which are hopeless where they should be doing something different instead; when there’s a much easier, quicker, cheaper alternative than judicial review proceedings.

The judge explains that:

litigants in person are very good at explaining what their situation actually is. They might not be good at identifying case law or legal language, but they can tell you the facts and if we know the facts then we can probably work out what the situation is, as long as we’ve got enough of the bare bones there to start from.

However, judicial reviews are not easy to navigate without legal representation.

One interviewee in the report, Gladstone said:

I had to get all the documents done and submitted, my statement of events, and everything else … It wasn’t a straightforward process at all. There’s a strict process that you have to follow, lodging the application itself, serving notice. It’s quite longwinded and it isn’t as clear cut or straightforward as one would have thought… It was just a horrible experience. I did all my research, I did put a lot of hours into doing the research.

In fact, Gladstone says, “I don’t think the judicial review process is actually set up for anybody to challenge the Home Office on their own.”

The Judicial Working Group on Litigants in Person agrees, noting that the system has been designed on the basis that people will be advised and represented.

Judicial reviews are technical and legalistic with strict rules that have to be followed. They also have a limited role, which can be difficult for people to understand – as the report points out, there is a “conceptual difference” between judicial reviews and appeals. Judicial reviews is more about the way the decision was made than the decision itself. The legal representatives interviewed stressed how difficult this could be to get across to clients, with “less vulnerable” clients struggling to understand the distinction.

The report points out that judicial reviews are an “unwieldy, expensive, and inaccessible remedy compared with ordinary tribunal appeals”, added to which are the difficulties of getting legal aid for a case, and the “lack of finality for both the claimant and the Home Office.”

Despite all this, we must remember the crucial role – sometimes life-and-death role – that judicial reviews can play.

As Sangeen, one of the interviewees in the report says:

“It was judicial review that saved my life. If there was no judicial review, the Home Office would have deported me a long time ago.”

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