Immigration Judicial Review Applications

What is an immigration judicial review?

An immigration judicial review is a legal process to challenge the immigration decision made by the Home Office or a court that you think was either illegal, irrational, or unfair. You can apply to the Upper Tribunal Immigration and Asylum Chamber (UTIAC) for a judicial review to challenge the lawfulness of an immigration decision.

Please note the immigration judicial review process is not about working out if the Home Office or the court got their immigration decision wrong. It is about whether the right procedures and the law was followed correctly by the decision maker. The immigration judicial review process considers the decision-making rather than the merits of the immigration decision. If you want to challenge why, rather than how an immigration decision was made and you have a right of appeal, an immigration decision appeal may be more appropriate.

You should take legal advice on the option of an immigration judicial review if:

• Your individual or business immigration application has been unsuccessful and you believe the decision-making process is legally or procedurally flawed and you do not have the right to appeal the decision.
• You have made additional submissions in support of your immigration application but the Home Office has said you have no right of appeal and your additional submissions do not amount to a fresh claim.
• You have been refused permission to appeal at the Upper Tribunal but you think the law was incorrectly applied to the circumstances of your case.
• A human rights or asylum claim has been certified by the Home Office so you do not have a right of appeal from within the UK.
• You want to challenge the decision to transfer an asylum claim to a European country under the inadmissibility rules.
• You have been unlawfully detained or you want to challenge your removal from the UK.

If you have been detained, are at risk of removal, or are concerned about your immigration status during judicial review you may need to apply for an urgent judicial review and an interim injunction order.

Appeal vs administrative review vs judicial review

The Home Office letter refusing your immigration application should explain if you have a right to request an administrative review or appeal the decision. Whatever option you choose there are time limits. If you do not act quickly, you may lose your right to apply for an administrative review, appeal, or seek a judicial review.

If you have the right to make an immigration decision appeal it means you can challenge the immigration decision made by the Home Office by asking an independent court or tribunal to review the Home Office decision. There is a time limit of no later than 14 calendar days to appeal a decision.

You may be able to apply for an administrative review if you don’t have a right of appeal and you want to challenge the Home Office’s decision. Unlike an appeal, the administrative review is an internal review conducted without a hearing and a decision is made based on the documents submitted in support of your administrative review application. The advantage of an administrative review is that the Home Office normally makes a decision within 28 days of the administrative review request but there is a 14-day time limit to apply for the administrative review. If your administrative review is successful the Home Office will reverse its original decision.

Unlike an appeal, the judicial review process will not assess or consider the merits of your immigration application. Instead, the judicial review process will focus on whether the decision-making process was legal, rational, and fair.

The decision on whether to apply for an administrative review, appeal, or to make an immigration judicial review application is a complex one and, therefore, best made with the help of an immigration lawyer who can advise you on the availability, timescales, and costs involved with each option. They will also advise on your likely prospects of success and the impact of an appeal, administrative review, or judicial review refusal on immigration status and any future immigration applications that you may wish to make.

Immigration judicial review process

The immigration judicial review process is conducted in 5 stages:

1. Pre-action stage – a pre-action protocol letter is sent to the Home Office explaining the basis for alleging the Home Office decision was either irrational, unfair, or illegal and the remedy required by you. A time limit of 14 days for a response is normally specified.
2. Apply for permission for a judicial review – a judge decides whether to give permission for the judicial review application to proceed to a hearing. The time limit to apply for the judicial review is no later than three months after a Home Office immigration decision was made or 16 days if you are applying for permission to judicially review an Upper Tribunal decision to refuse permission to appeal a First-tier Tribunal decision.
3. Permission determination – a judge decides whether to permit a judicial review based on your paper application. If permission is granted the Home Office will be notified and may voluntarily review its original decision. If permission is not granted and a judge says the application was without merit you cannot pursue the judicial review. If permission is refused, but the case is said to be not totally without merit, you can ask for an oral hearing to reconsider if permission should be granted.
4. Judicial review hearing – if you are granted permission you can proceed to a substantive judicial review hearing where a judge will decide if the original Home Office decision was unfair, irrational, or illegal.
5. Judicial review decision – if the application is successful the judge will make either a mandatory order (to make the Home Office do something the law says it has to do), a prohibiting order (to stop the Home Office from taking an unlawful decision or action it has not yet taken), or a quashing order (to overturn a Home Office decision and require the Home Office to reconsider the application).

If you are concerned about your immigration status during the judicial review or fear removal, you may need to apply for an urgent injunction order as a preliminary step.

What happens after the judicial review

What happens after the judicial review hearing depends on whether your application is successful or not:

• If your judicial review application is unsuccessful – you may have grounds to appeal the refusal to the court of appeal
• If your judicial review application is successful – the court will not decide on your immigration status. Instead, the decision will be referred back to the Home Office for reconsideration. If the Home Office reconsiders your immigration application by applying the correct procedures and law, they may uphold their original decision by addressing the criticisms of the manner of their original illegal, irrational, or unfair decision. If you apply for a judicial review, it is important to plead your case fully to get the reconsideration outcome you want.