Judicial Review

• What is Judicial Review?
• Who can bring a claim for judicial review?
• What is the process for judicial review?
• Pre-action stage
• Permission stage
• Acknowledgment of Service and Summary Grounds of Defence
• Decision on Permission
• The hearing
• Grounds of the basis of Irrationality
• Acting outside their allocated powers (illegality)
• Violation of Human Rights
• Procedural impropriety
• Why would you consider filing for judicial review?
• Cost of Judicial review

Judicial review is a way to challenge the regulations, rules, order and/or decisions of public bodies because it has not acted lawfully in the Upper Tribunal or High Court. Public bodies can be defined as entities whose performing functions are public in nature. Examples of public bodies can include but are not limited to:

• government ministers
• local authorities
• civil service unions
• NHS Trusts
• regulatory bodies such as the Office for Standards in Education
• courts and tribunals themselves
• any formally established organizations that are publicly funded and deliver a public or governmental service

Central and local governments are public bodies that must obey the law in regards to the decisions and actions they take, in other words, they must abide by ‘public law’. Public law states that public bodies do not abuse their power and act accordingly to the human rights of those it affects. If public bodies are accused of being unlawful and all other legal actions have been exhausted, then a judicial review can be brought about as the last resort. Judicial reviews are not about whether a policy or a decision is right or wrong (which is a matter of opinion) but if it was properly applied (accordingly to the law).

It should be noted that judicial reviews do not concern themselves with primary legislation (ex. Acts of Parliament exclude judicial review). Reviews like this are mainly used in the challenging of secondary legislation (laws made by a minister, regulator, or public authorities).

In order to bring a claim for judicial review, the claimant (person who seeks to challenge the decision) must have ‘sufficient interest’ in the case. This means that it must affect them in some way. Either you are the subject of the decision or you belong to a community that is affected by the decision. Organizations and interested parties with sufficient interest in this issue can also bring a claim to judicial review.

Furthermore, a claim must be brought about within the time limits of no more than 3 months after a decision has been made and grounds for a claim arose.

Under judicial review, judges will examine whether or not public bodies have acted lawfully. If the body is acting irrationally, outside their powers (illegality), found to be incompatible with the Human Rights Act 1998, or found to be guilty of procedural impropriety then the decision can be overturned.

If you decide that you want to go forward with pursuing a judicial review, you must first notify the public body (proposed Defendant) whose decision you are contesting that you are seeking judicial review. This is called the pre-action stage. At this stage, you will give the proposed Defendant the chance to either reconsider or withdraw their original decision. You must notify them via a “pre-action letter” or “letter before claim”. Normally your attorney will write this letter for you. In the pre-action correspondence, you should do the following:

• Detail and explain why you believe the Defendant has acted unfairly, irrationally and/or unlawfully
• Communicate to them how you want the public body to make amends and the time frame which you would like them to do it by
• Request a response within a certain time frame (this is usually 14 days)

It is unlikely that you will receive any response to the letter in the time frame you requested or that it will give the result you are looking for, however, this pre-action protocol is still an important step. Failure to notify the Defendant via a letter of claim may be used against you in your case. There may also be cost consequences for you if you are successful but it is later found that you failed to give the public body a reasonable opportunity to respond to the matter within reasonable time limits. In certain cases, the court may refuse to make an Order for the other side to pay your costs for bringing the claim. If after sending the letter, you have not received a response or are unsatisfied with that response you may then proceed to the permission stage.

After the pre-action stage, you can then apply for permission to have your case heard. To do this, you must first file and serve a ‘judicial review claim’ form. Ask your lawyer what type of claim form you will need to fill out as there are different forms for different courts.

When filling out the form, you will be asked what remedy you seeking, in other words, what you hope to achieve in overturning the decision. Your options will include the following:

• a mandatory order that will legally force the public body to do something
• a prohibiting order that will stop the public body from acting on an unlawful decision
• a quashing order which overturns the unlawful decision
• an injunction order, which is a temporary order requiring action or non-action by the public body while you wait for a decision to be made in a judicial review

In other cases, you may be seeking damages

Again, speak with your lawyer over what remedy to pursue. Usually, if you are seeking a judicial review for an immigration case, your lawyer will advise you to seek an injunction order or a quashing order. However, this will depend on your case and unique circumstances.

Once you have completed the form, submit both the permission stage application along with any supporting documents or evidence relevant to your case to the Upper Tribunal or the High Court. After it has been submitted or ‘lodged’, you must notify (or ‘serve’) the public body (aka, the Defendant) whom you are contesting by sending them a copy of the application along with a case reference number and any accompanying documents.

Once the judicial review claim is lodged, the Defendant will have 21 days from the date of service to file an acknowledgment of service. The acknowledgment of service must set out the summary grounds for contesting the claim. In some cases, the Defendant will concede and offer to settle the case.

If the Defendant does not file a defense, the court will consider the case based on the documents filed by you.

After the application is lodged and the Defendant has had an opportunity to respond, a judge will then review the application and any supporting documents attached to it and then decide whether to grant you the permission to proceed with a judicial review. Unless you are applying for an urgent injunction, this decision will be made within 3-6 months.

It should be noted that some judicial review claims are denied permission by the Administrative Court on the grounds that they are unlikely to be successful.

If your case has merit and you are granted permission, your case will proceed to trial. Before your day in court, you will need to submit a skeleton argument no later than 21 working days before the hearing. This skeleton argument should include:

• A list of legal points you intend to raise
• A timeline of the events of your legal case
• A list of essential documents to be read in advance by the Tribunal/High Court

In addition, you will have directions to file an agreed trial bundle that consolidates all the documents that you rely upon and the documents that the Defendant is relying on.

On the day of the hearing, either you (if you are representing yourself) or your lawyer will state the legal argument via an oral hearing to the judge who will then hear it and consider it in detail. The judge will then adjourn the case, create a written judgment on the decision and give reason(s) on whether or not the Defendant acted lawfully and decides what then should be done.

According to the law, a decision can be overturned on the ground of irrationality if it is, “so unreasonable that no reasonable person, acting reasonably, could have made it”.  As reasoning is subjective, it can be difficult to make a case for it.  Usually when irrationality is being argued it is also accompanied by more provable arguments such as a violation of human rights or procedural impropriety.

A general concept to argue here would be if the Defendant was acting proportionately.  This means that the action given is appropriately related and is justified within reason.

A decision can be overturned on the grounds of illegality if the public body was found to be acting outside of their allocated legal powers.

A decision can be overturned if a public body has acted in a way that is incompatible with the Human Rights Act 1998 unless it is acting in accordance to what Parliament’s orders.

A decision can be overturned on the ground of procedural impropriety (procedural unfairness) if the process that resulted in the decision was improper. Examples of procedural impropriety are but are not limited to the following:

• Bias where the decision was made by an individual who was not impartial. This means that the person deciding had a financial interest, personal relationship with one of the parties, etc.
• Lack of fair hearing (Was there a right to appeal? Did both sides exercise their right to be heard? Were reasons given on the decision?)
• Legitimate expectations were not met. (Did the public body keep their promise to the people or community?)

A judicial review is usually a last resort in an attempt to overturn a decision. If you have been refused a UK visa you may appeal the decision to the Home Office. Providing that fails, you can then seek a judicial review. This is a very complex process and your application can be refused permission if it has not been properly argued, if you have failed to follow the proper procedure outlined above regarding time limits for bringing your claim, or not engaging in the pre-action protocol. Therefore, it is highly recommended that you seek legal advice from an experienced attorney before you continue down this path.

There are certain circumstances where you could ask for a judicial review in regard to immigration. These would include:

• If you have been told that your asylum claim will be transferred to another European country for inadmissibility reasons

• If you have no right of appeal because your asylum or human rights claim has been certified by the Home Office

• If you have exhausted all other legal routes for an appeal

• If you have been unlawfully detained

• If you believe and can prove that there was an error of law regarding the decision of your application and you have been denied to appeal at the Upper Tribunal

• If you would like to apply for an injunction to stop your imminent removal

You should also take into account that judicial reviews are risky. Even if your decision is overturned, you may not be granted the remedy you are seeking as it will be made at the court’s discretion and not automatically applied. You may receive exactly the same decision if the High Court believes that the remedy you are seeking interferes with public interest or public function.

It should be noted that the cost of judicial review can be very expensive. Not only must you pay for the fees and expenses of your own lawyer or team of lawyers but if you lose you are usually responsible for paying opposing counsel’s legal fees as well. Needless to say, this can be quite costly with an average estimated cost of thousands of pounds. In addition, you will need to pay any court fees which are as follows:

• £154 to apply for permission for a judicial review
• £350 if refused permission and applying for reconsideration at a hearing on the decision
• £700 to pay for the judicial review proceedings if granted permission

Reduced fees are available for those who are struggling financially as well as legal aid although it is difficult to get. You have the option to represent yourself but this is not recommended as this is risky and requires someone with advanced legal knowledge.