Certain immigration decisions of the Home Office UKVI or Immigration Tribunal can only be challenged in High Court, Administrative Court, by way of Judicial Review. Since the 1st November 2013, the Upper Tribunal (Immigration and Asylum Chamber) (“UT(IAC)”) has been the appropriate jurisdiction for starting a judicial review in the majority of decisions relating to immigration and asylum, not the Administrative Court.

The following immigration decisions, however, can only be challenged in the Administrative Court, High Court by way of Judicial Review:

  • A challenge to the validity of primary or subordinate legislation (or of immigration rules);
  • A challenge to the lawfulness of detention;
  • A challenge to a decision concerning inclusion on the register of licensed Sponsors maintained by the Home Office, UKVI;
  • A challenge to a decision concerning refusal or deprivation of British citizenship;
  • A challenge to a decision relating to asylum support or accommodation;
  • A challenge to the decision of the Upper Tribunal (UT) where no further appeal lies to the Court of Appeal;
  • A challenge to a decision of the Special Immigration Appeals Commission; and
  • An application for a declaration of incompatibility under the s.4 of the Human Rights Act 1998.
  • A challenge to a decision which is certified (or otherwise stated in writing) to have been taken by the Secretary of State wholly or partly in reliance on information which it is considered should not be made public in the interests of national security.

 While the Upper Tribunal’s and High Court’s approach to judicial review is similar there are key differences.

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FAQs - Application To High Court For Reconsideration Of Permission At An Oral Hearing

What is the time limit for filing an application to Administrative Court, High Court for reconsideration of permission for Judicial Review at an Oral Hearing?

If your paper application for permission to proceed with the Judicial Review in High Court has been refused by the High Court judge, you have 7 days to file an application for decision to refuse permission to be reconsidered at an oral hearing.

What is an Oral Permission Hearing (OPH) at Administrative Court, High Court involving an Immigration Judicial Review?

At an Oral Permission Hearing (OPH) the claimant (normally via their legal representatives) before a single High Court judge will explain why they should be granted permission and the Home Office, UKVI will be given an opportunity to explain why permission should not be granted. The Home Office will instruct a barrister (counsel) to argue why permission should be refused. The High Court will then decide whether permission should be granted. A claim that is certified as being ‘totally without merit’ cannot renew to an Oral Permission Hearing (OPH).

What is a Rolled Up Hearing at Administative Court, High Court involving an immigration Judicial Review (JR)?

Sometimes an Oral Permission Hearing (OPH) is heard at the same time as the substantive hearing and this is called a rolled up hearing. This is more likely to happen where one party has made an application for the case to be expedited (i.e. heard sooner). A rolled up hearing has the advantage of getting the matter dealt with quickly and in practice is cheaper than the two stage process. At a rolled up hearing the judge will decide whether to grant permission as well as deciding the outcome of the judicial review if permission is granted.

What happens if permission to apply for Judicial Review is gratned or refused at Oral Permission Hearing (OPH)?

If permission to proceed with Judicial Review is granted, the matter will proceed to substantive JR hearing. If permission is refused, the Counsel for the Applicant can seek permission from the High Court to appeal to the Court of Appeal against the decision of the High Court to refuse permission to proceed with the Judicial Review.

What are the costs implications if an application for permission to apply for Judicial Review is refused by High Court at Oral Permission Hearing (OPH) stage?

The general rule is that the party losing a substantive claim for judicial review will be ordered to pay the costs of the other parties. However, the Judge considering the matter has discretion to deal with the issue of costs as he/she considers appropriate in all of the circumstances. Costs may be awarded in respect of an unsuccessful paper application. Any application by the defendant/interested party for costs will normally be made in the Acknowledgment of Service.

Can I appeal against the refusal of permission by the High Court at Oral Permission Hearing (OPH)?

If the High Court refuses your application for permission to apply for Judicial Review (JR), your legal representative can orally apply to the High Court for permission to appeal to the Court of Appeal against the decision of the High Court to refuse permission. In most cases, such oral request is also refused by the High Court which leaves the Applicant with the option of applying to the Court of Appeal itself for permission to appeal to the Court of Appeal to challenge the decision of the High Court.

Can Sunrise Solicitors act for my Judicial Review Oral Permission Hearing (OPH) at Administrative Court, High Court on No Win No Fee basis?

We can also act for you on no win no fee basis in relation to your application to the High Court for reconsideration of permission for Judicial Review at an oral hearing if we find that the chances of success in your application are 100%. The fee to be charged on No Win No Fee basis will depend on the complexity of the case and chances of success in the case. If your application for reconsiderataion of permission for Judicial Review at an oral hearing is unsuccessful, you will not have to pay our fees for our professional services.

FAQs - Pre Action Protocol (PAP) Against Home Office UKVI

What is a Pre Action Protocol (PAP) against Home Office UKVI?

A pre-action protocol (PAP) letter is a letter written to the Home Office, UKVI in order to try and resolve a dispute concerning an immigration matter before Judicial Review (JR) proceedings are started against the Home Office UKVI. A Pre-Action Protocol (PAP) letter may also be called a ’letter before claim’ or a ’letter before action’.  All of these terms refer to the same thing.

What is the time limit to submit a Pre Action Protocol (PAP) for Judicial Review (JR) against the Home Office UKVI?

You must have submitted the Pre Action Protocol (PAP) to the Home Office UKVI before you file the immigration Judicial Review against the Home Office UKVI. The time limit for filing an immigration judicial review against ther Home Office UKVI is 3 months from the date of the decision you are challenging.

Within how many days the the Home Office UKVI litigation depratment will respond to my Pre Action Protocol (PAP) letter?

The Home Office UKVI should respond to your Pre Action Protocol (PAP) letter within 14 days of receiving your Pre Action Protocol (PAP) letter. In some cases, the Home Office UKVI may ask for more time to respond to your Pre Action Protocol (PAP) letter. You can agree to such extended time for the response to your Pre Action Protocol (PAP) letter as long as you do not miss the deadline of filing Judicial Review in the relevant court within 3 months of the decision you are challenging.

What is the purpose of a Pre Action Protocol (PAP) letter against the Home Office UKVI?

The purpose of pre-action protocol (PAP) letter is to identify the issues in dispute and establish whether litigation with the Home Office, UKVI can be avoided. The letter contains the date and details of the immigration decision (the refusal letter), act or omission of the Home Office UKVI being challenged and a clear summary of the facts on which the Judicial Review claim against the Home Office, UKVI is based. It also contains the details of any relevant information that the applicant is seeking from the Home Office, UKVI and an explanation of why this is considered relevant.

What are the implications of filing Judicial Review (JR) against the Home Office UKVI without complying with Pre Action Protocol (PAP)?

The court may make a legal costs order against you if you proceed to issue Judicial Review proceedings against the Home Office UKVI without complying with Pre Action Protocol (PAP).

What are the cost implications for the Home Office UKVI if they do not respond to the Pre Action Protocol (PAP) letter at all before the filing of Judicial Review (JR) in the court?

The court may penalise the Home Office UKVI by making a legal costs order against the Home Office UKVI for not responding to the Pre Action Protocol (PAP) within the given 14 days and/or before the filing of Judicial Review in the court.

What are the possible resonses of the Home Office UKVI to the Pre Action Protocol (PAP) letter?

The Home Office UKVI may respond to the Pre Action Protocol (PAP) as follows:

  • The Home Office UKVI may maintain their decision to refuse your immigration application;
  • The Home Office UKVI may agree to reconsider the application or your immigration matter;
  • The Home Office UKVI may agree to withdraw the refusal decision and grant you the relief you asked for.

FAQs - Judicial Review (JR) In High Court After Grant Of Permission

What happens after the permission to apply for Judicial Review (JR) is granted by the Administrative Court, High Court?

f permission is granted, either initially on the papers, or at an oral hearing, the Defendant is then required to respond fully and formally. Up to this point he will probably have relied upon "Summary grounds of opposition". The Defendant must now set out the decision-maker's position in full, providing evidence in the form of witness statements explaining the history of the case, the procedure followed, the reasoning process and so on.

What is the normal time limit for defendant to file grounds of defense after the grant of permission for Judicial Review (JR)?

Once permission is granted, the defendant must submit detailed grounds of defense within a specified time frame (35 days from the date of permission grant).

Is there a requirement to file Skeleton Arguments before the Substantive Judicial Review (JR) hearing?

Nearer the hearing date counsel for both sides will submit written arguments as to why the claim should either be allowed (on behalf of the claimant) or dismissed (on behalf of the Home Office). These are called skeleton arguments.

What is the court procedure for Substantive Judicial Review (JR) hearing at Administrative Court, High Court?

Procedure at the substantive hearing is very simple:

  • The Case will normally be heard by a single Judge from the Administrative Court Panel, that is Judges appointed to a panel because of their experience, and he will have read the papers beforehand
  • Counsel appearing for the Claimant introduces the case, refers to the witness statements and addresses the Court about the law. Counsel will often refer to cases previously decided by the Courts which concern similar points of law (called "precedents" or "authorities").
  • The GLD's Counsel will then present the case in answer to the Claimant.
  • Finally the Claimant's Counsel will have the last word and will address the Court again on any points arising from the Defendant's case.
  • The Court then considers the rival arguments and delivers a decision, either immediately or after taking time for consideration (a judgment delivered later is called a "reserved judgment").

All parties are required to prepare in advance an outline ("skeleton") argument for the use of the Court at the substantive hearing. This is part of a tendency to encourage parties to reduce their case as much as possible to writing, though the Court will still be anxious to let everybody have their say. So far as witnesses are concerned, remember that the aim of Judicial Review is to examine the legality of a decision, and to ensure that proper procedure is followed: the Court is not well equipped to carry out a fact-finding exercise and will not normally embark upon one. For that reason it is rare for the witnesses who have made statements to be called to give oral evidence or to be cross-examined on their statements. There is power in the Court to order it, but it is rarely exercised. That is another reason why the duty of candour has to be observed.

What are the various remedies which the High Court can grant at Substantive Judicial Review (JR) hearing?

The remedies which the Court may grant following a successful Judicial Review are:

  • A quashing order, by which the Court sets aside or cancels a decision (or subordinate legislation) found unlawful;
  • A prohibiting order, by which the Court forbids the public authority to perform an act found unlawful;
  • A mandatory order, by which the Court instructs the public authority to perform a public duty;
  • A declaration, by which the Court declares what the law is, for example that a decision is unlawful;
  • An injunction, usually an Order not to do something, but it can be positive;
  • Damages, by which (in limited circumstances) the Court can award financial compensation.
  • A declaration whereby the court can declare, by virtue of Section 4 of the Human Rights Act, that a certain provision of primary legislation is incompatible with a convention right.

In practice by far the most common order given by the Court to a successful Claimant is the quashing order on its own, even if the Claimant has sought, say, a prohibiting order with it. Where the Court has quashed a decision and remitted the matter to the decision-maker to make a fresh decision in accordance with the judgment of the Court, it will be unnecessary for the Court to add a prohibiting order as well.

Can Sunrise Solicitors act for my substantive Judicial Review at High Court on no win no fee basis?

We can also act for you on no win no fee basis in relation to your substantive Judicial Review hearing after the grant of permission by the High Court if we find that the chances of success in your Judicial Review claim are 100%. The fee to be charged on No Win No Fee basis will depend on the complexity of the case and chances of success in the case. If your substantive Judicial Review hearing is unsuccessful, you will not have to pay our fees for our professional services.

FAQs - Application To High Court For Permission To Apply For Judicial Review (JR)

Which immigration decisions can only be challenged by way of Judicial Review in the Administrative Court, High Court?

The following immigration decisions, however, can only be challenged in the Administrative Court, High Court by way of Judicial Review:

  • A challenge to the validity of primary or subordinate legislation (or of immigration rules);
  • A challenge to the lawfulness of detention;
  • A challenge to a decision concerning inclusion on the register of licensed Sponsors maintained by the Home Office, UKVI;
  • A challenge to a decision concerning refusal or deprivation of British citizenship;
  • A challenge to a decision relating to asylum support or accommodation;
  • A challenge to the decision of the Upper Tribunal (UT) where no further appeal lies to the Court of Appeal;
  • A challenge to a decision of the Special Immigration Appeals Commission; and
  • An application for a declaration of incompatibility under the s.4 of the Human Rights Act 1998.
  • A challenge to a decision which is certified (or otherwise stated in writing) to have been taken by the Secretary of State wholly or partly in reliance on information which it is considered should not be made public in the interests of national security.

 While the Upper Tribunal’s and High Court’s approach to judicial review is similar there are key differences.

What is the time limit to apply for Judicial Review in Administrative Court, High Court?

The Judicial Review (JR) in the Administrative Court, High Court should be lodged as soon as possible, but not later than 3 months from the date of the decision.

How can I apply for permission for Judicial Review in Administrative Court, High Court to challenge an immigration decision?

You can apply to the High Court for permission to apply for Judicial Review (JR) by using N461 Judicial Review Claim Form. The person who brings a claim for judicial review in High Court is known as the claimant and the person against whom the judicial review is brought is the defendant, normally the Secretary of State for the Home Department (‘SSHD’) but it can be an Immigration Officer or Entry Clearance Officer when their decision is being challenged.

The claimant sets out the grounds of their claim, and includes any evidence they wish to rely on and asks for permission to be granted. Once received by the High Court the application is ‘sealed’ by the court. This means the court stamps the application to show it has been received. The papers must then be served on the Defendant, the Secretary of State.

Can I file an application for urgent consideration of my immigration Judicial Review (JR) in the Administrative Court, High Court?

If you want to make an application for your application for permission to be heard/considered by a Judge as a matter of urgency and/or to seek an interim injunction, you must complete a Request for Urgent Consideration, Form N463: Application for urgent consideration. The form sets out the reasons for urgency and the timescale sought for the consideration of the permission application, e.g. within 72 hours or sooner if necessary, and the date by which the substantive hearing should take place.

Where you are seeking an interim injunction, you must, in addition, provide a draft order; and the grounds for the injunction. You must serve the claim form, the draft order and the application for urgency on the Respondent and interested parties (by FAX and by post), advising them of the application and informing them that they may make representations directly to the Court in respect of your application.

A High Court judge will consider the application within the time requested and may make such order as he/she considers appropriate. The judge may refuse your application for permission at this stage if he/she considers it appropriate, in the circumstances, to do so.

If the Judge directs that an oral hearing must take place within a specified time the High Court will liaise with you and the representatives of the other parties to fix a permission hearing within the time period directed.

Within how many days the Defendant i.e. Government Legal Department acting for the SSHD should file an Acknowledgement of Service (AoS) after received a sealed copy of the JR bundle?

Once the grounds have been served on the Defendant, there are 21 days to file a paper response to the claim, this is known as an Acknowledgement of Service (AoS). The Acknowledgement of Service (AoS) allows the Home Office to confirm whether it accepts the claim detailed in the judicial review or whether they wish to contest the claim. If they are contesting the claim the AoS, will include their summary grounds of defence (SG) and any evidence the Home Office wishes to rely on as to why the claim should not be granted permission to proceed.

What is the decision making process for deciding an application for permission to apply for Judicial Review in the Administrative Court, High Court?

Once the court receives these documents a single judge will look at the papers and decide whether or not to grant permission. The test for granting permission is whether the judge thinks the claim is arguable. This is a low threshold. If the judge does not think the claim is arguable, the judicial review will be refused permission to proceed. Both parties are then notified of this decision by means of a court order. If permission is refused, the judge may also certify the claim as being ’totally without merit’. This is added when the judge considers the claim is completely hopeless. A ‘totally without merit’ finding stops the claimant from renewing their judicial review to an oral permission hearing, but they may appeal this decision to the Court of Appeal.

If the judge does consider the claim to be arguable, he or she will grant permission. In this circumstance, the case will proceed to a full substantive hearing. In either case, both parties are notified of the judge’s decision by means of a court order.

What are the costs implications if the application for permission for Judicial Review is refused by the High Court judge on papers?

The general rule is that the party losing a substantive claim for judicial review will be ordered to pay the costs of the other parties. However, the Judge considering the matter has discretion to deal with the issue of costs as he/she considers appropriate in all of the circumstances. Costs may be awarded in respect of an unsuccessful paper application. Any application by the Respondent/interested party for costs will normally be made in the Acknowledgment of Service.

Can Sunrise Solicitors act on no win no fee basis for my application to High Court for permission to apply for Judicial Review (JR)?

We can also act for you on no win no fee basis in relation to your application to the High Court for permission to apply for Judicial Review if we find that the chances of success in your application are 100%. The fee to be charged on No Win No Fee basis will depend on the complexity of the case and chances of success in the case. If the paper application for permission to apply for Judicial Review is unsuccessful, you will not have to pay our fees for our professional services.

What are the various time limits for Judicial Review (JR) in Administrative Court, High Court involving immigration Judicial Review (JR).

It may be helpful to set out in summary form the principal time limits set by the Rules.

  • Claimant required to file his Claim Form "promptly and in any event not later than three months after the grounds to make the claim first arose": CPR 54.5
  • Claimant must serve Claim Form on the Defendant within seven days after date of issue: CPR 54.7
  • Defendant must file Acknowledgement of Service not later than 21 days after service of the Claim Form: CPR 54.8
  • If permission refused on the papers, the Claimant may within 7 days request reconsideration at oral hearing: CPR 54.12
  • If permission granted, the Defendant must file and serve his written evidence within 35 days after service of the order giving permission: CPR 54.14

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