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Judicial reviews

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 a successful judicial review, the court will not substitute what it thinks is the "correct" decision. If you are successful in your judicial review, the case will normally go back to the Home Office, or the court found to have made an error of law. They may be able to make the same decision again, but this time make the decision following the proper process or considering all relevant case law or evidence reasonably.

Since 2013, most judicial reviews in asylum and immigration cases in England and Wales are heard in the Upper Tribunal.

Previously, most judicial reviews were heard in the High Court. Some immigration and asylum judicial reviews in England and Wales are still heard in the High Court. These include judicial reviews challenging the lawfulness of detention and challenges to decisions of the Upper Tribunal.

If you have a judicial review hearing, the documents that the court sends you or your lawyer will tell you which court your judicial review is being heard in.

In Scotland, judicial reviews are heard in the Outer House of the Court of Session. In Northern Ireland, they are heard at the High Court in Belfast. See Other Courts section for more information.

Judicial reviews and legal aid

Recent funding cuts mean it is now much more difficult to get legal aid for a judicial review.

If you have had an appeal hearing or determination on the same, or substantially the same, issue within 12 months and you lost the appeal, legal aid for a judicial review will not be available.

The government has brought in measures in England and Wales that mean, in general, legal aid lawyers only get funding for working on a judicial review if permission to proceed with that judicial review is granted. The Legal Aid Agency can allow legal aid for work done before permission is granted for a judicial review, but this is very hard to get. If you want to find out more, read this Legal Aid Handbook summary.

This means that legal aid lawyers taking on a judicial review are taking a risk, and are only likely to do this if they feel you have a strong case. The lawyer can receive the legal aid funding for the work done pre-permission stage if permission is subsequently granted, but if permission is refused that work will remain unpaid.

If your case would not qualify for legal aid under the current rules, you may be able to apply for exceptional legal aid funding, if you can show that your human rights or European Union rights would be breached if you do not have legal aid.

Is a judicial review your best option?

Judicial reviews are very complicated and you should always seek legal advice where possible on applying for a judicial review.

If you are unable to get legal aid for a judicial review, it is possible to represent yourself but this can be very difficult and there are risks in representing yourself in a judicial review. You will have to pay the fees yourself (see below) and if you lose, you are liable for the costs of the proceedings. A bad judgment may also be very unhelpful for your case, and for others.

It may seem like a judicial review is your only legal option, especially if you have no right of appeal or if your removal/deportation is imminent. This does not necessarily mean it's the right thing to do.

Think carefully about whether a judicial review is the best way to spend your time, energy and possibly money. A private lawyer may charge you a great deal of money for a judicial review, even if there is little hope it will help your situation.

Sometimes people see judicial reviews as a way of slowing down the process of removal/deportation. This is understandable when the asylum and immigration system can move so fast, denying you your rights. A poor application for a judicial review, however, may just speed up the process because a judge may order that any further applications are no bar to your removal/deportation.

ACTION SECTION

Look carefully at your case and the legal process and decide if a judicial review is the right option for you, or if there are better ways of using your (and your friends/supporters') resources.

Reasons you may consider a judicial review

Time limits

An application for judicial review should be made as soon as is reasonably possible, and no later than 3 months after the decision that you are trying to challenge was made. In asylum and immigration cases, this decision will usually be the one made by the Home Office.

Pre-action stage

If you intend to apply for a judicial review, you should write to the Home Office informing them of this, giving them chance to withdraw their decision or correct an error without having to go the point of a judicial review. This is called the "pre-action" stage. The letter you write to the Home Office is called a "pre-action letter" or "letter before claim".

If you have a lawyer, they should write the pre-action letter for you. They will then usually "instruct" a barrister to represent you if the judicial review gets to a permission hearing, and then at the full hearing if permission is granted.

The pre-action stage does not affect the 3 month time limit for applying for a judicial review.

Read the "Pre-Action Protocol for Judicial Review" on the Ministry of Justice website for details of what should be included in this letter and what to do with it.

In the letter, you should:

You are unlikely to receive any response to this letter (but it's still an important stage of the process, and may be used against you if you fail to do it). If you do not receive a response with the time limit, or the response is not satisfactory, and you want to continue to apply for a judicial review, you can move on to the permission stage.

Fees

If you are not applying for a judicial review through a legal aid lawyer, you have to pay the fees for the judicial review application.

The fee is £154 to apply for permission for a judicial review.

If you are refused permission, and you apply for reconsideration at a hearing of the decision on permission (see "renew", below), the fee is £350.

If you are granted permission, the fee for proceeding with the judicial review – which must be paid within 7 days of being informed you have permission – is £700.

For up-to-date information on fees and forms for applying for judicial review, go to the Ministry of Justice judicial review website.

If you do not have any or much income, you can apply for a reduction in the fees. See the application forms and guidance here.

Permission stage

To have a judicial review heard, you must apply for permission. The process described here on applying for permission is for judicial reviews in England and Wales only. Read more about judicial reviews in Northern Ireland here.

When applying for permission, you need the "judicial review claim" form.

You should always check you are using the correct form and paying the correct fee. Check the Upper Tribunal website for the latest information.

At the time of writing, if you are applying for a judicial review that would generally be heard at the Upper Tribunal, you need to use form T480.

jr claim form

Some judicial reviews are still heard in the Administrative Court (the High Court).

These include challenges to unlawful detention and challenges to decisions made by the Upper Tribunal. Read this Free Movement blog post for the type of judicial reviews still heard at the High Court.

If this applies to you, you need to use a different form and apply for permission to the High Court. You can find the application form and guidance here and more information on applying for judicial review at the High Court here.

Remedy

When completing the application for permission for judicial review (the judicial review claim form), you need to say what remedy you are seeking in applying for a judicial review. This needs to be one of the following:

Questions in the form

Lodging your permission application

To lodge (submit) your permission application in England, you can send it by pre-paid post (ask at the post office) or by document exchange, or take the form in person to the Upper Tribunal (Upper Tribunal Immigration and Asylum Chamber, Field House, 15-25 Breams Building, London, EC4A 1DZ).

You may be able to lodge your application in person at regional offices of the Tribunal. You can ask the Tribunal for information about this - see contact details here.

When you lodge your application for permission, you must also file two copies of the documents you wish to rely on (including the decision you are challenging).

These should be put together in a file, called a bundle. You should number each page, and include an index (a list of the contents with the relevant page number next to each item).

The decision on whether you are granted permission to proceed with a judicial review will usually be made on the papers: a judge considers the documents and written arguments that have been lodged.

If you are refused permission

If your application for permission is refused on the papers – you do not go to court but a judge looks at your documents and makes a decision – you may be able to apply to "renew" the decision. This means you are asking the court to reconsider the decision – in an oral hearing rather than on the papers – to not grant you permission for a judicial review of your case.

If permission is refused on the papers and the case is deemed as "totally without merit", you do not have the right to apply to renew the decision.

You should receive information about the procedure for asking for renewal with the written refusal of permission.

If you are granted permission

ACTION SECTION

If you applied for permission without a lawyer and have been granted permission, you now stand a better chance of a legal aid lawyer taking on your case. Go back to your previous lawyer, or try to find a new lawyer. If they take on your case, they will instruct a barrister to represent you in the hearing.

If you cannot find a legal aid lawyer to represent you, you may be able to find a lawyer to take on your case pro bono.

The rest of this section assumes you do not have a lawyer to represent you.

If you are granted permission, you need to pay the fee (see above) for proceeding with the judicial review within 7 days of being informed you have permission. You should receive information about this along with notification of permission being granted. This information should also tell you what else you need to submit in advance of the hearing.

Remember: if you change address, you must inform the Tribunal/court. Otherwise they may send vital information to the wrong address.

The Home Office must file and serve its detailed grounds within 35 days of permission being granted. This means they must set out the basis on which they are defending the claim (if they are defending the claim. In some cases, the Home Office will withdraw or change their decision without you having to go to a full hearing). Their grounds must include any written evidence they want to rely on.

If you want to rely on additional grounds during your judicial review hearing (other than those you set out in your application), you need to give written notice to the Tribunal and the Home Office no later than 7 working days before the date of the hearing.

You also need to serve a skeleton argument on the Tribunal and the Home Office, no later than 21 days before the hearing. Your skeleton argument should include a list of the legal points you wish to raise (and any relevant authorities such as case law with page references to the passages relied on); a chronology of events in your legal case, such as Home Office decision, court decisions and any subsequent applications by you (with page references to the bundle of documents); and a list of essential documents to be read in advance by the Tribunal (if different from those served with the application).

You also need to serve a bundle of all the relevant documents upon the Tribunal and the Home Office. Serving the bundle means officially submitting/sending it. Keep proof of how and when this was done. The documents should include all those referred to in your skeleton argument. These might include witness statements, any "written submissions" you have prepared and any relevant letters or emails from the Tribunal or from the Home Office.

The hearing

If permission is granted, a substantive hearing will take place where a judge will consider the claim in detail.

The hearing may not be for several months from when you first applied for a judicial review, although this will depend on the urgency of the case.

You need to take your bundle of documents with you. The Tribunal will have asked you to send them a copy of the bundle in advance of your hearing date, which you must do, but you may want to bring several spare copies of all your documents with you, so that you can give them to the judge or the Home Office in case they haven't got them. If you have any witnesses speaking for you, they will also need a copy of your bundle in case they want to refer to any of the documents during their evidence.

To find out more about preparing for the hearing, read the Bar Council's Guide to Representing Yourself in Court.

At the end of the hearing the judge can give a decision on the day, but that is unusual. The judge usually "reserves" the judgment, which means you will be notified of the decision at a later date.

Outcomes

In a judicial review, the court will not substitute what it thinks is the "correct" decision.

Positive

If you are successful in your judicial review, the case will normally go back to the Home Office (or if you are judicially reviewing a decision of a court, it will go back to that court) found to have made an error of law. They may be able to make the same decision again, but this time make the decision following the proper process or considering all relevant caselaw or evidence reasonably.

If you are applying for emergency relief to stop a removal (see below) and are successful, the court will issue an injunction to prevent that removal from taking place for a certain period of time.

If you argued that you needed time to proceed with certain aspects of the legal process, you will need to proceed with those.

If you argued you should not be removed while important other cases that have relevance to your case were waiting to be heard, you should not be removed until that case/those cases are decided. Be aware that the Home Office may move very swiftly to remove you if that case is decided in a way that is unhelpful for your case.

Negative

If you are not successful in a judicial review, it is possible to ask permission to appeal the decision at the Court of Appeal but this is very tricky without legal representation.

Judicial review: enough to stop a flight?

Submitting an application for a judicial review is not enough to prevent a removal/deportation.

In some cases, judicial review proceedings against the 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:

Urgent application, injunction

If you have been informed by the Home Office that you are liable to removal/deportation, you may be able to apply for an urgent judicial review to try and secure an injunction to prevent that removal/deportation.

An injunction is an emergency, interim measure.

In applying for an injunction, you are asking a judge to issue an injunction after looking at "the papers" of your urgent application (you will not present evidence at a hearing). You would be asking for an injunction - stopping a removal/deportation from taking place - to allow time for a full judicial review hearing or other decision-making process to take place. Asking just for an injunction to stop a flight, without making clear that there is some legal avenue to pursue, is unlikely to be successful.

For example, it may be argued that the refusal of a fresh claim by the Home Office was unreasonable and an error of law, and that removal should be postponed ("stayed") while a judicial review decides if the Home Office must reconsider the fresh claim.

You may know that an important case that has relevance to your case is due to be decided. You may apply for an injunction in order that your removal is stayed while that other case is decided. Be aware that the Home Office may move very swiftly to remove you if that case is decided in a way that is unhelpful for your case

Making an application

To apply for the emergency measure of an injunction, you need to complete the form for permission for a judicial review (a "judicial review claim form"), if you haven't already. See above for information on this form.

You also need to complete an "Application for urgent consideration form". You can find the form (T483) here.

You need to explain why the application is urgent, and how quickly you require the application to be considered. This is likely to be before the end of your removal notice period (before the removal window begins).

You also need to state the date by which you wish the substantive hearing to take place (if you are granted permission).

You must include a draft order with your application. The draft order is what you are suggesting the judge should order. For example, your draft order may ask for your removal to be postponed while you wait for completion of a vital medico-legal report to substantiate your testimony of torture in country of origin.

You must also explain the grounds (the reasons) on which the injunction should be granted. Remember that an injunction is part of a judicial review, so the grounds for the injunction should reflect this. Would your removal be the result of an illegal, unfair or irrational/disproportionate decision?

You should include the notice of being liable to removal/deportation, recent relevant Home Office refusals or appeal dismissals, and other relevant evidence to support the application.

Within the working hours of the Upper Tribunal, you should fax the completed forms and above documents to the Upper Tribunal Immigration and Asylum Chamber. The fax number is 0870 324 0185. For fax numbers of Welsh and regional offices, see the Tribunal website here.

You should make your application within the Upper Tribunal's opening hours whenever possible. If you are making your application "out of hours" (overnight, for example), you need to submit the application to the Administrative Court (the High Court). To do this, you will need to speak to the Royal Courts of Justice out of hours duty clerk (general telephone number is 020 7947 6000).


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