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What is a judicial review?
A judicial review is a type of legal challenge where an individual asks the High Court or Upper Tribunal to review the lawfulness of a decision, action or failure to act of a public body or government department. It can also be used to challenge secondary legislation, the immigration rules or policy, or the compatibility of an act of Parliament with the Convention rights under the ECHR.
It can only be used where there is no avenue of appeal or where all avenues of appeal have been exhausted. It is different from a statutory appeal because the court should not normally substitute what it thinks is the ‘correct’ decision, it will only decide if the decision made was lawful.
The Judicial Review Process
Pre-action protocol :
Normally a person who wishes to challenge a decision of the Home Office should write first to the department asking for the decision to be reviewed. This is called the pre-action protocol (PAP).
PAP letters and the responses to them should be carefully considered. This is a good opportunity to prevent judicial review proceedings being brought at all, either by re-making the decision in the applicant’s favour (where appropriate) or by setting out clearly the reasons for maintaining the existing decision.
Paper permission stage:
If a person wants a judicial review of a decision they must first apply to the Upper Tribunal or High Court for permission. This should be done as soon as possible, but normally no longer than 3 months from the date of the decision, although the courts can decide to accept applications after that time limit.
The person who brings a claim for judicial review is known as the claimant (applicant in the Upper Tribunal) and the person against whom the judicial review is brought is the defendant (the respondent in the Upper Tribunal), 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. References in the remainder of this document are to claimants and defendants but apply equally to applicants and respondents.
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 Upper Tribunal or 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 GLD who will in turn notify the Home Office in cases progressing through High Court or directly on the Home Office in Upper Tribunal cases. The Upper Tribunal Rules do not formally require service of the sealed claim form although letters issued by the Upper Tribunal do inform applicants that they must do this.
Once the grounds have been served on GLD or the Home Office, there are 21 days to file a paper response to the claim, this is known as an Acknowledgement of Service (AoS). The AoS allows the Home Office to confirm whether it accepts the claim detailed in the judicial review or whether we wish to contest the claim. If we are contesting the claim the AoS, will include our 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.
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.
However, a significant majority of claims which are not settled pre-permission are refused permission to proceed. 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.
Oral permission stage:
In some cases, the judge will not be able to reach a decision on whether permission should be granted on the basis of the paper documents before him. In these circumstances, an oral permission hearing (OPH) will be ordered.
Also, if permission is refused on the papers a claimant has 7 days plus 2 working days for postage (High Court) and 9 days (Upper Tribunal) in which they can ‘renew’ the application to an OPH. This time period can be abridged to a shorter period if the application is deemed urgent. If so, this will be stated on the Order refusing permission on the papers.
At an OPH the claimant (normally via their legal representatives) before a single judge will explain why they should be granted permission and the Home Office 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 Upper Tribunal or High Court will then decide whether permission should be granted. A claim that is certified as being ‘totally without merit’ cannot renew to an OPH.
Sometimes an 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 (ie 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. However, it does not allow for much time to prepare the substantive defense.
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.
Substantive hearing :
Once a case is granted permission to proceed it will go on to a substantive hearing, unless settled or withdrawn, although occasionally there may be a pre- hearing known as a case management conference, or an interim relief hearing to take a view on an urgent element of the judicial review. 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). 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.
The case will then have a substantive court hearing at which oral arguments are made by both the claimant and defendant. The court will then deliver a final judgment, which will either allow the claim and provide a form of relief in a court order, or dismiss the claim upholding the Home Office’s position.
Settling cases
A judicial review claim can be settled at any point before a substantive hearing, if the Home Office and the claimant are able to come to an agreement on resolving the matter under dispute.
Discussions between the parties about settlement may be conducted on a ‘without prejudice basis’ which means that the court will not see the relevant correspondence. Agreements to settle are then set out in consent order, which is provided to the court (although in some circumstances elements of the agreement are kept private between the parties – this applies particularly to awards of damages). The court will normally approve (seal) a consent order signed by both sides at which point it becomes a binding court order. The court could potentially disagree that the judicial review should be settled as proposed but this is extremely rare. A claimant can also withdraw their judicial review at any point should they wish to do so.