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A Basic Guide To Judicial Review In Immigration Cases

OTS Solicitors is highly ranked in the Legal 500 and one of the most respected, successful niche law firms in London, specialising in immigration, commercial, civil litigationemployment, and family law.  We also provide immigration consultancy and legal advice to nationals in the Middle East, including Saudi Arabia, Abu Dhabi and Dubai.

Judicial review is one of the most important weapons in an immigration solicitor’s armoury.  With the right of appeal all but gone for points-based visa applications (except if there is a human rights element present), judicial review now remains one of the few recourses available to migrants whose immigration applications have been refused.

However, few people outside the legal community have any idea what judicial review is.  This article is designed to provide a clear explanation as to not only what constitutes a judicial review, but how you can use it to turn a failed immigration application into a successful one.

What is judicial review?

The UK legal system is separated into three powers:

  • Legislature – parliament
  • Executive – government bodies
  • Judiciary – the courts

The rule of law demands that each of these functions remain independent, and are capable of keeping each other in check.

judicial review is the process by which the courts oversee the decisions of the executive arm of the government.  Judges of the Administrative Division of the High Court (HC), and the Upper Tribunal (immigration and asylum Chamber) (UT) exercise authority over the lawfulness of acts or omissions of public bodies and a supervisory jurisdiction over inferior courts and tribunals.

As you can imagine, this is particularly important in Immigration law, which is governed by hundreds of Acts, rules, regulations and guidance notes.  These must be interpreted and followed in a consistent way to provide all people (not just migrants) with a certainty as to how public officials will treat them regarding a particular matter.

What are the grounds for judicial review of a public body’s decision?

judicial review can only be brought on specific grounds.  These include:

  • illegality, i.e. where there was an error of law in the making of the decision
  • irrationality (in the Wednesbury sense) or unreasonableness
  • procedural impropriety and unfairness
  • the decision was in breach of the human rights Act 1998 (usually involving an assessment of proportionality), and
  • the decision breaches EU law

Let’s take each one in turn:

Illegality

The illegality ground can be used if the decision maker made an error in law or acted outside the powers conferred to them by the legislature. 

Unreasonableness

This is one of the more difficult grounds on which to bring a judicial review challenge.  The case that provides the definition is Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223.  To be unreasonable, the decision must be “so unreasonable that no reasonable person acting reasonably could have made it”. 

Fairness

Fairness is a frequent ground for challenging an immigration decision on judicial review grounds.  An example of a successful challenge can be found in R (Forrester) v SSHD [2008] EWHC 2307 (Admin).  This case concerned an application for Leave to Remain as a spouse. The in-time application to remain was rejected as invalid because the cheque accompanying the application was not honoured.

Consequently, the claimant was an overstayer when she applied for permission to remain with her husband. The application was refused on the sole ground that she lacked Leave to Remain.

Although the decision was in accordance with the immigration rules. Justice Sullivan was scathing:

'This is a classic example of a thoroughly unreasonable and disproportionate, inflexible, application of a policy, without the slightest regard for the facts of the case, or indeed elementary common sense and humanity. Such an approach diminishes, rather than encourages, respect for the policy in question.'

Another example of unfairness was highlighted in R (London Reading College) v SSHD [2010] EWHC 2561 (Admin), [2010] All ER (D) 154 (Oct).  Here, a Tier 4 sponsor had had its Sponsor Licencerevoked.  The court considered whether the UK Border Agency UKBA (now UK Visa and immigration) had given the college sufficient information to enable it to address the concerns. According to the judge:

'That was necessary both as a matter of fairness but also to ensure that the Defendants were in a position to take a rational decision, a decision based on a proper appreciation of all the facts.'

The UKBA, concluded the court had made its decision in breach of the requirements of procedural fairness and the decision was quashed.

Cases involving children and other vulnerable people have recently been held to require additional procedures to be followed see AM (Afghanistan) v Secretary of State for the Home Department (2017).

Proportionality is also a developing ground for making a judicial review challenge.  In Pham v Secretary of State for the Home Department [2015] the concept was discussed extensively.  The case involved the stripping of the appellant’s British Citizenship and deporting them to Vietnam after it was alleged he participated in terrorist training in Yemen.

Lord Mance endorsed proportionality as a ground for judicial review stating:

‘Removal of British Citizenship under the power provided by section 40(2) of the British nationality Act 1981 is, on any view, a radical step, particularly if the person affected has little real attachment to the country of any other nationality that he possesses and is unlikely to be able to return there. A correspondingly strict standard of judicial review must apply to any exercise of the power contained in section 40(2), and the tool of proportionality is one which would, in my view and for the reasons explained in Kennedy …, be both available and valuable for the purposes of such a review’.

Are there any other requirements for bringing a judicial review challenge?

Yes.  judicial review is a remedy of last resort, meaning all other legal remedies must be exhausted before you can apply for judicial review. You also have to apply to bring a judicial review claim; it is not an automatic right.

What remedies are available under judicial review?

The following remedies are available for judicial review:

  • Quashing order;
  • Prohibiting order;
  • Mandatory order;
  • Declaration;
  • Injunction; and
  • Damages

In any case more than one remedy can be applied for; however, the granting of all remedies is entirely at the court’s discretion.

A note on damages – they are only available in very limited circumstances in judicial review cases.  To receive a damages award, there must be either:

  • A recognised ‘private’ law cause of action such as negligence or breach of statutory duty or;
  • A claim under European law or the human rights Act 1998.

How we can help

OTS Solicitors has been highly ranked in the Legal 500 for immigration and human rights.  Our team has extensive experience in managing judicial review challenges.  Contact our immigration lawyers in London for the best judicial review advice and representation.

OTS Solicitors is one of the most respected immigration law firms in London and is Legal 500 leading firm.  By making an appointment with one of our immigration Solicitors, you can be assured of receiving some of the best legal advice available in the UK today.