Judicial Review Immigration
Introduction to Judicial Review Immigration
Introduction to Judicial Review Immigration
Judicial review immigration is a request for a review of the decision of a public body or in the case of Immigration law, it will be a request against the decision of the UKVI/ Home Office. Judicial Review provides the means by which the UK courts control the exercise of powers of public bodies such as Government, Government departments, Local Authorities, Tribunals, State and semi-State organizations. It is the last remedy to an applicant and is used where there is no alternative remedy available and used as a last resort.
- The Home Office, Passport Office, Foreign Office, Local Borough Councils. British Government itself are among those bodies whose exercise of powers are controlled by the Courts through Judicial review
- Michael’s application for further leave to remain was refused by the Home Office, his appeal was also refused as he has no other remedy available he is allowed to seek permission to apply for Judicial Review Immigration.
Purpose of JR
The purpose of Judicial Review Immigration is to ensure that the Government and its’ bodies must exercise their powers in a lawful manner and only exercise powers given to them and must not go beyond the powers given to them and the decision maker must follow the rules of fairness, justice and reasonableness. Importantly Judicial Review is concerned with the legality of the decision made and not with the merits of the decision
Appeal OR Review
Judicial Review Immigration is not an appeal from a decision, but it is a review of the manner in which a public body has made its’ decision
Any breach of human rights on the part of a public body will be subject to Judicial Review.
Stages in Judicial Review immigration:
For a successful claim under Judicial Review immigration, a person has to pass two stages. A person has to pass stage 1 first and get permission first to lodge a Judicial Review and only then can proceed to stage 2
Stage 1 (Procedural Hurdles)
Stage 2 (Grounds of JR)
JR must be Against a Public Body
Illegality / Ultra Vires Decision
Person must have Sufficient Interest
Matter/Issue must be of Public Law
Time Limit 3 Months from the date of the Decision
Non-availability of Alternative Remedies
- Abdul has received a decision from the Home office and his Visa is refused, in order for Abdul to pursue a Judicial Review against the decision of the Home Office, Abdul has to first pass all procedural hurdles in stage one and then he must have a valid ground/grounds (among the three grounds) to lodge a Judicial Review.
- Shelly’s daughter has been refused admission to the nearest Junior school where she lives by her local council. In order to Lodge a Judicial Review, she has to pass all hurdles in Stage 1 and she must also have valid ground/grounds in stage 2
Judicial review is only available against the decisions of a Public Body. If the body whose decision is challenged is a private body, for example, a private school, an airliner, a mobile phone company, then the remedy for an aggrieved person will lie in private law.
Some private bodies who were once under Government control are also considered as public bodies. The test for public bodies is a source of its’ powers if the body is set up under statute or by some delegated legislation then it will be held as a public body.
- Gas Board, Water and Electric Supply Board, Regulatory bodies, British Rail, British Telecom, Universities, are a few examples of Public Bodies who have been privatised over the years.
- Ahmad is unhappy with the decision of the Gas Board, he can ask to seek permission to lodge Judicial review as the Gas Board will be treated as a public body
Only the person who is affected by the decision of a public body is entitled to seek permission to apply for a Judicial Review in a High Court. Courts apply a strict criterion and it is the discretion of the court to grant or refuse an application for Judicial Review. Permission is normally granted where an arguable case has been shown. A dissatisfied person (who is not permitted to lodge a JR) may apply to the Court of Appeal for permission to appeal against a refusal of permission.
- Frank has been refused further leave to remain by the Home Office, as Frank is directly affected by the decision of the Home Office, he holds sufficient interest and can seek a Judicial Review of Home Office’s decision.
- Mike has been refused further leave to remain by Home Office, Mike’s roommate/ Charity working with immigrants wants to lodge a Judicial Review on behalf of Mike. The roommate and Charity will not be allowed to pursue a Judicial Review on behalf of Mike as they are not directly affected by the decision of Home Office.
Public Law Issue
Judicial Review is only available on the issues of Public law. Matters of private laws are dealt with differently and under private law’s procedural rules. For Judicial Review, the respondent must be a public body and rights at issue must be a public right.
However, there is an exception to the general rule, which is, where the case involves both Public and Private law elements and in particular where the Public Law Element is collateral (auxiliary/ additional) to the private law, a person can apply to seek a Judicial Review.
It is important to note that the matters of Public Policy are not for Judicial Review. The matters of Public policy are determined by the Government and not by the Judiciary.
- Mike is an employ of London University and he has been made redundant or discharged from his duties unfairly. Mike cannot pursue a Judicial Review as the issue is not of a Public Law and is dealt with under private law of employment.
- Jones has applied to the local authority for accommodation and his application is refused and he is made homeless. Jones can apply for Judicial Review of the decision made by the Local Authority as it is a matter of Public Law
- Ali wants to live in the UK and extend his further leave to remain after the completion of five years. Government policy only allows for a stay of up to a maximum of five years. Ali cannot seek a Judicial review of the UK Government’s policy which restricts the maximum stay up to five years.
Generally, under Civil Procedure Rules 1998, an action under Judicial Review must be brought within a 3-month time period from the date when the actual decision was made. However, where there are shorter time periods specified in the statute, then Judicial Review must be lodged within that time frame. In the case of a review against the decision of Home Office, the time is 3 months from the date of actual decision where a person can request a Judicial Review.
The different time period is allowed for different types of Judicial Review for example in the case of Immigration appeals the time period is 3 months and in the case of Judicial review of the decision of a local authority in regards to housing it is 30 days.
Ali’s application for further leave to remain was refused on 1st January 2017, he has a 3 months’ time period from this date of the decision to apply for Judicial Review unless otherwise is specified in the statute
Existence of Alternative Remedies
The availability of alternative remedies is an important factor in deciding whether Judicial Review will be allowed. As a general principle, a leave for Judicial review should not be granted where an alternative remedy is available.
The important point is if a right of appeal is granted with the decision, this right must be used first before seeking permission to apply for Judicial Review. However, in exceptional circumstances, a High Court may waive this condition and grant a leave to apply for Judicial Review
- Yasmin’s application for a work permit is refused by Home Office. However, she is given a right of appeal. Yasmin cannot apply for Judicial Review before considering and lodging the appeal.
- Yarba’s application and Appeal both have been refused, he can apply for Judicial Review as he has no other alternative remedy available
Stage 2 (Grounds for Judicial Review immigartion)
Once a person has successfully passed all of the hurdles in stage one and has been granted permission to apply for Judicial Review, he can proceed to stage two. There must be valid ground/grounds to pursue a claim under Judicial Review immigration.
Stage 2 (Grounds for JR)
Illegality / Ultra Vires Decision includes
· Error of law
· Error of Facts
· Onerous Conditions
· Use of power for the wrong purpose
· Relevant consideration and Bad Faith
· Fettering Discretion
· Unauthorised use of power
· Failure to Act and Comply with Policy
· Failing to comply with mandatory procedures
· Breach of natural justice
· Breach of Article 6 of the European Convention on Human Rights
· The Right of fair hearing
· The Duty to act fairly
· The Duty to give reasons
· Legitimate expectation
Illegality (Ultra vires)
Ultra Vires refers to an action which is outside or in excess of the powers of the decision-making public body. Illegality includes “acting for an improper motive, failing to take account of relevant circumstance, failing to respect the requirements of natural justice, being unreasonable”. Courts aim to ensure that the decision-maker has acted according to law and has not gone beyond the powers given to them.
Error of Law
The error of law occurs, where a public body misinterprets or misunderstands the powers which it has been given. Going beyond these powers will make the decision ultra vires and hence illegal
Error of Facts
Only where the mistake of fact is one which is central to the decision maker’s power of decision will it? be held as an error of facts. Crucial errors of facts will be reviewed by courts or where the decision is reached on the basis of facts for which there is no evidence or use of wrong facts or where facts are ignored, these situations will provide some valid grounds for a Judicial Review immigration.
Onerous (Difficult) Conditions
A decision is illegal and may also be unreasonable if the conditions attached to the decision are difficult or impossible to perform.
Use of Power for the wrong purpose
Powers given to a public body must only be used for the purpose it is given. Whenever the power given to a public body is used for a wrong purpose it will make the decision illegal and provides valid grounds to seek Judicial Review
Relevant consideration and Bad Faith
Whenever a public body uses irrelevant consideration into account to reach a decision or wherever there is a failure to decide a case in the manner required by law, this will be illegal and provides valid grounds for Judicial Review
A public body must exercise the discretion given to it when making a decision. It must not adopt a rigid policy which may result in the refusal of an application under a certain category. The authority may act ultra vires(illegal) where it fetters (restricts) the discretion given to it.
Unauthorised Delegation of Power
An unauthorised delegation of power by a public body to another body or person, who makes the decision will make the decision illegal.
Failure to Act and Failure to Comply with policy
A Public body may be under a statutory duty to take action and comply with the policy. It may be held to be acting illegally if it fails to act when it is under the duty to act or comply with the policy. This is a complex area of law and claimants including self-representing litigants should seek professional advice.
A decision is unreasonable and irrational where a public body has acted or reached a decision in a manner so unreasonable that no reasonable public body could have come to it or could have to make such a decision.
“Unreasonableness” is an umbrella term which entails “unreasonableness”, “bad faith”, “dishonesty”, “paying attention to irrelevant circumstances”, and “disregard of a proper decision-making process”.
The Human Rights Act 1998 has provided an additional basis for Judicial Review, on which the legality of actions of the public body will be tested. Breach of human rights is a valid ground for Judicial Review. Proportionality requires that in decision making the public body must always ensure to strike a fair balance between the rights of the individual and the interests of the community. The decision must be proportionate and does not violate the human rights of the applicant.
Final ground for Judicial Review
Procedural Impropriety is referred to as a failure by a public body to “comply” with the “procedures” laid down by statute.
Failing to comply with mandatory procedures
The breach of mandatory procedural requirements will make the decision invalid and will be grounds for a Judicial Review of immigration.
Breach of natural justice
It means that those who are affected by the decision maker’s decision should be dealt with in a fair manner. The rules of natural justice require that the proceedings must be conducted in a way which is fair and fair in all circumstances.
Breach of Article 6 of European Convention on Human Rights
Everybody has a right to a fair trial under Article 6 of the European Convention on Human Rights. Breach of a fair trial will invalidate a decision.
Any bias from the public body and the decision maker will invalidate the decision. The foundation of any justice system lies on a fair hearing. It is often quoted that justice should not only be done but should undoubtedly be seen to be done. Bias includes financial and non-financial bias and is another ground for Judicial Review
The Right of fair hearing
- The right to be given notification of the hearing
- The right to be given indication of any adverse evidence
- The right to be given an opportunity to respond to the evidence
- The right to an oral hearing
- The right to legal representation at a hearing
- The right to question witnesses
The Duty to act fairly
The person whose right has been affected, he/she must have the opportunity both to know and understand any allegations made and to make representation to the decision maker to meet the allegations
The Duty to give reasons
The decision maker is under an obligation to provide the applicant with the reasons for the decision in most cases or provide adequate information as to the basis on which a decision has been reached
Where a person has been led to understand by the words or actions of a decision maker that certain procedures will be followed in reaching a decision, this will give rise to a legitimate expectation in the mind of the complainant.
- Ali was led to believe that there would be an oral hearing, this will give rise to legitimate expectation on Ali’s part that an oral hearing will take place
- Michael was led to believe that he would be able to make a formal representation, this will give rise to legitimate expectation to make a formal representation
Where such expectations have been created, the decision maker or the public body is not free to ignore the procedure which has been promised or indicated.
The granting of a remedy in Judicial Review immigration proceedings is at the discretion of the court. Even where the claimant has established his case, the court has discretion or may refuse a remedy if there has been a delay in commencing proceedings or where the applicant has acted unreasonably, or where it is against the public interest to award a remedy.
A court may award the following remedies
- Quashing Orders: A quashing order sets aside the original decision or nullifies the original decision.
- Prohibiting Order: It prevents a body from making any further decision which is capable of being quashed/nullified by quashing orders
- Mandatory Order: It compels an authority to act in a particular way in making a new decision and a failure to comply with the mandatory order is a serious offence and may amount to contempt of court
- Declarations: A declaration is a statement of the legal position of the parties, public bodies or authorities who are required to respond to a declaration and comply with the terms by rectifying their actions.
- Injunctions: They are court orders to stop someone doing something. In Judicial Review an injunction will stop or restricts a public body from acting in a particular manner. Injunctions may be interim or permanent but are used to prevent a public body from acting unlawfully
- Damages: The court can award damages as well in appropriate cases. Damages are monetary in value and are awarded to compensate a person for his losses and intended to place him in a position where he could have been, had the right decision been made
- Habeas Corpus: They are used to challenge the legality of a decision to detain an individual and are used to bring a person who is under arrest in front of the court to secure a release. They amount to production orders for the release of a detainee.
There can be more than one grounds to rely on when pursuing a Judicial Review. A decision can be argued on illegality, irrationality and procedural impropriety at the same time. Judicial Review is a complex process and should be conducted or carried out with the advice and expertise of a lawyer.
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