Judicial Review Pre-Action Protocol

Judicial review is a legal process that is available only in:

• The High Court
• The Upper Tribunal Immigration and Asylum Chamber for immigration, nationality and asylum cases

Judicial review can be used to challenge the lawfulness of decisions, actions and the failure to act of public bodies. These could be a government department such as the Home Office, a local authority, or other body involved in a public law function.

The judicial review procedure is a complex process, and anyone who wishes to make such a claim should usually refer to a solicitor.

Before commencing the judicial review procedure, certain pre-action steps must be taken by both parties, except in urgent cases.

Immigration judicial review

Immigration judicial review refers to the process of legally challenging a decision made in your immigration, asylum, or human rights application. Usually, this decision is made by the Home Office, but sometimes the process can be used to challenge a decision made by the first-tier Tribunal.

It’s important to note that judicial review does not determine if the decision in your case was right or wrong, but rather whether the process of reaching that decision was lawful.

To challenge the validity of a decision there are different routes including an appeal or an administrative review. The judicial review route is usually taken when there is no such alternative route, ie it’s a last resort.

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There are several aims of the judicial review pre-action protocol, as follows:

• Identify the issues in dispute
• Share information and relevant documents
• Help arrive at informed decisions as to whether and how to proceed with a judicial review claim
• Promote out-of-court settlements – ie to avoid unnecessary legal proceedings
• Avoid or limit legal costs
• Help achieve efficient use of the court’s time and resources if a settlement cannot be reached

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Since judicial review is a last resort remedy, the court may ask both parties to provide evidence that they have considered alternative ways of resolving their dispute. Alternative complaint and dispute resolution options may include:

• Negotiation
• Internal complaint
• Ombudsman
• Mediation

There is a time limit for judicial review to be started which is no later than three months after the grounds for a claim first arose, and exploring ADR cannot be an excuse for failing to comply with this time limit. However, all efforts should be made to follow alternative dispute resolution (ADR) options in a timely fashion, as the court could ask both parties for evidence of such efforts.

In the event that the parties need to submit a claim in order to comply with the time limit but are still in the process of considering settlement or the narrowing down of the issues in dispute, they may agree to stay the proceedings. In this case, they may make a joint application to the court for a direction to that effect.

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Part of the judicial review pre-action protocol permits the claimant to request pre-action disclosure (information and documents) from the defendant. This information allows the claimant to understand why the decision being challenged was made, and to be able to better identify the issues that will form the basis of the complaint.

Any requests for information must only be for these purposes and need to be proportionate. Unless there is good reason not to, the defendant has a duty to comply with such requests for information providing they meet these requirements. If a defendant fails to provide the requested information, it is possible that the court could impose cost sanctions on them, particularly if the failure to provide the information is in breach of statutory or common laws.

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If you decide you wish to proceed with a judicial review, before you can submit a claim for judicial review, you must send a “letter before claim” or “pre-action letter” to the other side, the defendant.

The purpose of the “letter before claim” is to set out the key facts of the case and the reasons for the decisions being challenged. This letter gives the defendant a chance to amend or withdraw their decision if they wish, so that court proceedings can be avoided.

In most cases, the “letter before claim” must conform to the standard format and contain the following:

• Date and details of the decision
• Act or omission being challenged
• Summary of the facts
• The legal basis for the claim
• The information which the claimant is seeking and why it is relevant to the claim
• Details of the party who is bringing the claim
• Request for a response from defendant within a reasonable time limit (usually 14 days)

Immigration, nationality and asylum cases

For immigration, nationality, and asylum cases, instead of sending a “letter of claim” to the Home Office, there is a form that should be completed. The form asks for the following:

• Your personal information – name, date of birth etc
• Your legal representative
• Your case reference numbers
• Type of claim
• The substance of your claim – details of the challenge and the action you would like the Home Office to take
• Any information or documents you are requesting from the Home Office
• Any alternative dispute resolution proposals
• Your proposed date to receive a response, usually 14 days

You may use your own letter format, you are not required to use the Home Office’s standardised form. It is highly recommended that you seek the assistance of an immigration professional with your letter of claim, as the letter must provide all of the information outlined in the pre-action protocol which can be complex.

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In immigration cases, the Home Office will usually respond to your pre-action protocol letter within 14 days. If they do not adhere to the required timescale, unless they have good reasons, sanctions could be imposed. If the Home Office is not able to respond within the proposed response time they should provide an interim response, in which they should propose a response time extension and clarifying why they need this. This request will not affect the time limit for making a case for judicial review.

The letter of response sent to the claimant should state if the defendant has conceded, conceded in part, or denied the claim. It should clearly explain what is and what is not being conceded, and why; provide a full explanation for the decision, a timescale for the issuing of the new decision and send you any relevant documentation requested. Any claims or documents that cannot be addressed or sent must be fully explained in the response.

If the Home Office does not respond to you within the proposed time limit and no interim letter is forthcoming, or if you are not satisfied with the response provided then you can proceed with submitting a judicial review to the Upper Tribunal Immigration and Asylum Chamber.

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Judicial review cases that are deemed urgent will not need to follow the pre-action protocol. Here are a few examples of urgent cases:

• Applying for an injunction to stop your imminent removal from the UK
• Urgent need for an application to force a local authority to act where it has unlawfully refused to do so, for example where a local housing authority has failed to provide interim accommodation for a homeless claimant

Where the pre-action protocol does not need to be followed, the claimant must still alert the defendant of the impending claim. This can be done by telephone and the sending of the draft claim form via email or fax.

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The judicial review process is a complex, legalistic process that can be difficult to navigate alone. So it is highly recommended that the assistance of a legal expert is sought.

Here at Manchester Immigration Lawyers, our team is highly experienced in judicial review cases and we can help you even if your case is very complex.

When you appoint our team, your assigned lawyer will explain the pre-action protocol process and will ensure that it is complied with by carrying forward the required steps on your behalf. Here are some of the ways we can assist you. We will:

• Answer any questions you have about pre-action protocols
• Help you request documents and information from the Home Office in line with the limits of the pre-action protocol
• Prepare and send your letter before claim for you
• Liaise with the Home Office on your behalf to determine any alternative dispute resolution (ADR) options
• Prepare your application for judicial review if legal proceedings are unavoidable
• In urgent cases, advise if the pre-action protocol applies
• Advise on and handle the judicial review process on your behalf

For more information about how we can help you with pre-action protocols or the judicial review itself, contact us today on 0161 660 1680 or complete our online enquiry form.