What to do when your application has been refused by the Home Office or you have exhausted all other appeal options.
Judicial review is the conduct that allows you to attempt to challenge the outcome of a court proceeding, such as a decision, action, or lack of action made by a public body exercising a public law function. This public body will likely be the Home Office in asylum and immigration cases.
The purpose of a judicial review (JR) is to challenge how a decision has been made, if you believe it was unlawful, unreasonable, or unfair. Judicial review is not about whether the final decision of the proceeding was right or wrong, but whether or not the law was applied appropriately and the relevant steps taken.
You may consider a judicial review if:
-You have been informed that your asylum claim will be transferred to another European country under the Dublin regulations, and you feel you need to argue that your human rights will be breached in that country
-Your asylum claim has been certified (no right of appeal within the UK)
-Your further submissions have been rejected as repeated claim, without right of appeal
-There has been an inaccuracy in use of law- the law has been applied incorrectly and/or misinterpreted
-You have been unlawfully detained
-You have been denied permission to appeal at the Upper Tribunal
-There has been an error of fact- the outcome has been based on incorrect data
-You wish to attempt to apply for interim relief facing imminent removal
-Your immigration application has been refused without right of appeal on human rights grounds
If the judicial review is successful, the original decision is nullified, and the case will typically go back to the Home Office. They may be able to make the same decision again, but now make the decision ensuring use of the proper processes, or considering all appropriate law or evidence reasonably.
The initial step in the judicial review procedure is to compose a formal letter to the defendant, laying out your proposed claim and intentions. This is known as a pre-action protocol (or PAP) letter. A response is usually expected within 14 days.
If the response to the PAP is unsatisfactory, you may file a judicial review claim in the Administrative Court. The first stage is to apply for “permission” to apply for judicial review. The criterion for obtaining permission to advance with the claim is that you have an arguable case.
To apply for permission, you must complete a short claim form, setting out your facts and your grounds; you will provide documents explaining the background to the case and relevant legal information; and finally submit these papers to the Administrative Court for a fee. This permission stage will involve an amount of effort considering documents, chronology, and analysis of your material.
If permission to apply for JR is refused, you can then submit an application for renewal of permission for JR within 7 days. This will mean that the new application will be decided after a court hearing.
An application to apply for JR should be made early, within three months from when the grounds initially became relevant- unless the court considers that there is good reason for extending the time given to create the application. The case leave for JR can be refused if you have not acted promptly.
How can we help?
We can assess the success rate of your case and advise if judicial review is the appropriate action for you.
Can I get legal aid?
The Legal Aid Agency can allow legal aid for work undertaken before permission is granted for a judicial review, but this is exceedingly challenging to attain. This means that legal aid lawyers working on a JR are taking a risk, and unlikely to do so without confidence in a strong case. The lawyer will be granted the legal aid funding for the work completed pre-permission stage if permission is consequently granted, will go unpaid for the work if permission is not granted.
You can represent yourself in a judicial review, but you will need to pay all fees yourself and in the case of your loss, you are responsible for the costs of the proceedings.