Since 6th April 2015, migrants no longer have a right to appeal under the Points Based System (PBS) except on human rights’ grounds or by relying on the Refugee Convention. The only means an applicant can challenge a Home Office decision is via Administrative or Judicial Review.
Judicial Review is complex, costly and challenging. To manage the process successfully, experienced legal representation is imperative. Applicants must apply to the Court to seek Judicial Review and it will only be granted if the Court believes the case has sound merits.
To remove some of the mystery surrounding the Judicial Review process it is helpful to detail what it involves, what applicants have to show to be successful and the remedies available.
What is Judicial Review?
Judicial review is a process by which the courts exercise a supervisory jurisdiction over the exercise of public functions by public bodies. For example, if your application for Indefinite Leave to Remain has been refused by the Home Office, you may, depending on the circumstances, be able to challenge this decision under Judicial Review .
For Judicial Review to be applicable, there must be a breach of public law rights as opposed to private law rights (for example a breach of contract or a tort). A claim for judicial review may only be brought by a someone with a sufficient interest in the matter.
Judicial Review is a remedy of last resort and should only be considered once all other options have been exhausted.
What is a public body?
A public body is any institution, exercising a public function, whose power is granted by legislation. The Home Office and The UK Border Agency are both public bodies.
On what grounds can a Judicial Review claim be brought?
The classic grounds for judicial review are illegality, irrationality and procedural unfairness. However, it has been said that the key purpose of judicial review is to prevent the abuse or misuse of public power, and, as such, the grounds upon which a claim may be brought continue to expand.
The main permissible grounds for judicial review are:
- illegality—this means that the public body must understand and give effect to the law governing the action in question. It must not only act in accordance with the strict letter of the law, but must also respect the policy and purpose of the legislation. A public body cannot abuse its powers.
- irrationality—this ground is sometimes known as ‘Wednesbury unreasonableness’, after the main case on the matter. It is a difficult ground to establish, as it requires a claimant to show that the decision was so unreasonable that no reasonable person could have reached it.
- procedural unfairness—the requirements of procedural fairness, sometimes known as ‘natural justice’, depend on all the circumstances but the key elements of procedural fairness in most cases are the right to be heard and the absence of bias
- legitimate expectations—if a public body gives a clear assurance as to how it proposes to act whether through an express promise or a consistent practice, it will normally be required to comply with that assurance unless there is a good reason to depart from it. The court will decide independently whether any departure from a legitimate expectation is justified
- material considerations—a decision-maker must inform themselves of and take into account all material considerations surrounding the case. They must also leave out of account all immaterial considerations.
- mistake of fact—although the court will not normally interfere with a public body’s factual conclusions unless they are Wednesbury unreasonable, it may do so if:
- the existence or extent of a public body’s powers depends on the actual existence of some ‘precedent fact’
- a statute, properly interpreted, requires the Court to make factual findings itself
- there has been an objectively verifiable mistake of fact
- proportionality—in claims involving human rights or EU law it may be necessary for the Administrative Court to decide whether an act or decision was proportionate to a legitimate aim.
- failure to give reasons for the decision—although there is no general obligation on a public authority to give reasons for decisions, such an obligation is often imposed by legislation or governmental guidance.
The Court will not intervene merely because it disagrees with or has doubts about the quality or merits of a particular decision. Claimants must demonstrate one of the above factors has occurred.
Is there a time limit in which a Judicial Review claim must be brought?
Yes. All claims must be brought within three months.
What remedies are available for Judicial Review?
The following remedies are available in proceedings for judicial review:
- Quashing order – nullifies the decision made by the public body and is the most common order made in Judicial Review
- Prohibiting order – prohibits a public body from taking an action which would be beyond the scope of its powers
- Mandatory order – requires the public body to fulfil its duties and can be made in conjunction with a quashing order
- Declaration – clarifies the rights and obligations of the parties to the proceedings
- Injunction – stops a public body from preforming a certain action or acting in a certain way
- Damages –only available if there is a claim under European or Human Rights law or a recognised ‘private law’ cause of action.
Embarking on a Judicial Review is not a decision to be made lightly. Your Solicitor will advise you as to whether Judicial Review of the decision applied in your case is the best course of action.
If you require legal advice concerning the Judicial Review process, please contact our Birmingham office on 0121 222 7643.
Sultan Lloyd Solicitors is one of Birmingham’s best immigration law firms and our immigration team has years of experience in assisting people and businesses with immigration applications and appeals.