A Judicial Review is the legal process that allows individuals or organisations to challenge the lawfulness of decisions made by public bodies, including government departments. In immigration matters, judicial reviews are commonly used where applicants believe the Home Office has made an unfair or unlawful decision.
Importantly, judicial reviews cannot be used to appeal against a decision simply because it is unfavourable. Instead, they offer a mechanism to ensure that decisions are made in accordance with the law and established legal processes and principles. This means that if a decision is found by the court to be unlawful, the court can order the matter to be reconsidered, but it does not automatically grant the applicant the outcome they were seeking.
In this guide, we consider what judicial reviews are, how they work and the key considerations when determining if this route is available and appropriate.
What is Judicial Review?
Judicial Review is a legal challenge used to question whether a decision made by a public authority was lawful. Fundamentally, judicial reviews are there to ensure that government bodies – including the Home Office – act within their powers and follow proper legal procedures when making decisions. They act as a last resort when no other right of appeal or review is available, and since it involves a court process, are time-consuming and costly, making legal advice important before proceeding.
The judicial review process is different from an appeal; it does not assess the merits of a case, but focuses on whether the decision-making process was fair and lawful. As such, a court reviewing a decision will not reassess the facts of a case or substitute its own judgment. Instead, it examines whether the original decision was made fairly, within legal powers and following the correct procedures.
Judicial reviews are therefore limited in their scope, since they are restricted to the issue of ‘lawfulness’ of the Home Office decision. This also means new evidence can generally not be introduced as part of the review process.
Judicial Reviews for immigration applications
For immigration cases, a judicial review is typically used when there is no right of appeal or Administrative Review. It may apply when the Home Office has failed to follow the correct process, acted outside its legal authority or made an unreasonable decision. Grounds for Judicial Review can include procedural unfairness, errors in applying the law or a decision that is irrational.
A person seeking Judicial Review must first send a Pre-Action Protocol (PAP) letter to the Home Office, requesting reconsideration before taking legal action. If the matter is not resolved, an application can be made to the court. If the challenge is successful, the court may order the Home Office to reconsider its decision, but it does not automatically result in the initial application being successful.
Judicial Review can be helpful to those migrants whose visa application has been refused or employers who are facing having their sponsor licence refused, suspended or revoked. A refusal, suspension or revocation of a sponsor licence can have grave consequences. If you are subject to a licence suspension, you cannot sponsor new migrants, although existing sponsored workers will be allowed to continue working. In cases of revocation, any migrants you sponsor will have their leave to remain curtailed and will have 60 calendar days (or the date of their visa expiry if sooner) to find an alternative sponsor or leave the UK.
It may also be possible to challenge civil penalties using the Judicial Review process.
Judicial Review grounds
The grounds for Judicial Review are narrow and must relate to at least one of the following:
- Illegality (e.g., where there was an error in law in the making of the decision)
- Unreasonableness or irrationality
- Unfairness or procedural impropriety
- The decision beached the Human Rights Act 1998 (usually involving an assessment of proportionality)
Judicial Review process
Stage 1: Pre-Action Protocol (PAP) Letter
Before Judicial Review, you will be required to engage with the Home Office and send a letter before claim known as a Pre-Action Protocol letter.
A Pre-Action Protocol letter is a letter before action to the public body whose decision you wish the court to review, in this case, the Home Office. It has a specific format and is designed to avoid litigation and unnecessary costs. The set form of the letter is provided under the Court Practice Rules, and parties should follow the procedure as stipulated within the Protocol.
The letter should contain:
- The defendant and claimant’s names and addresses
- Details of any legal advisers
- The date and details of the decision, act or omission being challenged
- A summary of the facts and the legal basis for the claim
- Contain the details of any information you are seeking together with an explanation why you consider the information necessary and/or relevant
- If there is a third person who is an ‘interested party’, then their details should be included within the letter. The interested party should also be sent a copy of the letter
- Details of the documents that are considered relevant and necessary
- Proposed response date, ideally giving 14 days-notice to the other party
- You should send the letter in good time to enable the response to be considered before the time limit for issuing the claim expires, unless there is a good reason this is not possible.
If the decision is not a positive outcome, you will have to decide whether to escalate the matter further and issue a formal Judicial Review claim. Any claim must be brought within three months of the original decision being given.
Stage 2: Permission Stage
If you do not receive a favourable response to the Pre-Action Protocol letter or do not receive a response at all, then you can apply to the Upper Tribunal (or, in some cases, the High Court) for permission to apply for Judicial Review. The application is document-based and takes place without an oral hearing. The court will consider whether the case has legal merit. A judge reviews the application and will either refuse or allow permission for a full hearing based on the documentation submitted.
If permission is granted, the case moves to the next stage.
If the court refuses the paper application for permission, you may be able to apply within seven days for a renewal of permission for Judicial Review, which will be listed for a court hearing. Where permission is granted for Judicial Review, the matter will be listed for a substantive hearing where the Upper Tribunal will decide whether the decision of the Home Office is in accordance with the relevant law. An application for Judicial Review is made to the Upper Tribunal (Immigration and Asylum Chamber) or, in some cases, the High Court. The court first considers whether the case has legal merit. A judge reviews the application and decides if permission should be granted for a full hearing.
Permission may be refused if the judge believes the case is weak, lacks legal grounds or should have been dealt with through other legal remedies. If permission is denied, the applicant can request an oral hearing to argue why the case should proceed.
Stage 3: Substantive Hearing
If permission is approved, a full Judicial Review hearing takes place. A judge examines whether the Home Office followed the correct legal process and whether the decision was made fairly and lawfully. The court does not reassess the original evidence but focuses on the legality of the decision-making process.
Both the applicant’s legal representatives and the Home Office’s legal team present arguments. The judge then decides whether the challenge is justified.
Stage 4: Outcome and Remedies
When the court or tribunal rules on a case of Judicial Review, it is not concerned with the merits of the case, but how the decision was made. Therefore, it does not have the power to substitute its decision for UKVI and cannot overturn it. The remedies include:
- A mandatory order that requires the authority or body under review to take specific action e.g., looking again at the decision to refuse, revoke, or suspend a sponsorship licence, or impose a civil penalty
- A prohibiting order restraining the body under review from doing something (e.g., stopping a licence suspension)
- A quashing order setting aside a decision on the ground that it is unlawful
- Damages, restitution, or the recovery of a sum due
- A costs award
If the challenge is successful, the court may quash the original decision. This means the Home Office must reconsider the application using the correct legal process. The judge may also issue a mandatory order, requiring the Home Office to take specific action, or a prohibiting order, preventing it from acting unlawfully in a similar way in the future. However, the court does not have the power to approve a visa application directly. The Home Office must review the case again, following proper legal procedures.
If the challenge is unsuccessful, the original decision remains in place. The applicant may be required to pay legal costs for both parties. In some cases, there may be an option to appeal the decision or request a reconsideration, but this depends on the legal grounds of the case.
Judicial Review can also result in a settlement, where the Home Office agrees to review the decision before the case reaches a full hearing.
How much does a Judicial Review cost?
The cost of a Judicial Review varies depending on the complexity of the case, legal representation fees and court charges. Fees are payable at different stages of the process, making it important for applicants to understand the financial implications before proceeding.
The court fee for submitting a Judicial Review application to the Upper Tribunal (Immigration and Asylum Chamber) is typically £154. If the case is granted permission to proceed, an additional fee of £770 is required for a hearing. If the matter is taken to the High Court, costs can be significantly higher.
Legal representation adds further expense, with solicitor and barrister fees varying widely. The total cost of legal assistance can range from £3,000 to over £10,000, depending on the case’s complexity and the level of work required. Some applicants may qualify for legal aid, but this depends on their financial circumstances and the strength of their case.
If a Judicial Review is unsuccessful, the applicant may also be ordered to pay the Home Office’s legal costs. Seeking professional advice before pursuing a challenge is strongly recommended to assess both legal and financial risks.
Judicial Review Risks & Considerations
Judicial Review can be an effective way to challenge unlawful decisions made by the Home Office or other public bodies. However, it carries certain risks and requires careful consideration before proceeding.
Costs and Financial Risk
Judicial Review can be expensive. The court fees alone can exceed £900, and legal representation increases costs. If the challenge is unsuccessful, the applicant may be required to pay not only their own legal fees but also a portion of the Home Office’s costs. Seeking legal aid may be an option for some applicants, but it is only available in limited circumstances.
No Guarantee of Visa Approval
Even if a Judicial Review is successful, the court does not compel the Home Office to make a favourable decision. Instead, it orders the Home Office to reconsider the case using the correct legal process. There is still a risk that the Home Office will refuse the application again, even after reconsideration. As such, if the refusal is based on valid grounds rather than a legal error, Judicial Review may not provide a solution.
Time Commitment and Delays
Judicial Review is not a quick process. Preparing the case, submitting a Pre-Action Protocol (PAP) letter and waiting for the court’s decision can take several months. If permission is granted for a full hearing, further delays should be expected. Immigration cases can be particularly time-sensitive, so an applicant must consider whether waiting for Judicial Review is the best option or whether submitting a fresh application might be more effective.
Permission May Be Denied
Before a case proceeds to a full hearing, a judge must decide whether it has sufficient legal merit. If the case is considered weak, permission may be refused at an early stage, leaving the applicant without further recourse. In some cases, an oral hearing can be requested to argue why the case should proceed, but this does not guarantee success.
Alternative Options
Judicial Review should be a last resort when no other appeal or review is available. Applicants should explore all possible alternatives, including reapplying, seeking an Administrative Review or resolving the issue through legal representation before committing to this process.
Need assistance?
DavidsonMorris are UK immigration specialists. We are advisers on all aspects of UK Home Office applications. If you have received a negative Home Office decision, you will need to act quickly to determine your next steps. We can advise on options to appeal or challenge a Home Office decision and the process you will need to follow to engage with the Home Office and assert your rights. For expert guidance on your options, contact us.
Judicial review FAQs
What is Judicial Review?
Judicial Review is a legal process where a court examines whether a public body, such as the Home Office, has made a decision lawfully. It does not reassess the facts of a case but focuses on whether the correct legal procedures were followed.
When can Judicial Review be used in immigration cases?
Judicial Review is only available when no right of appeal or Administrative Review exists. It is typically used when a decision appears unlawful, irrational, or procedurally unfair.
What are the risks of Judicial Review?
The process can be expensive, time-consuming, and does not guarantee a visa approval. If the case is unsuccessful, the applicant may be liable for legal costs. Even if successful, the court will not grant a visa but will order the Home Office to reconsider the decision lawfully.
What is a Pre-Action Protocol (PAP) letter?
Before applying for Judicial Review, a PAP letter must be sent to the Home Office. This formal communication outlines legal concerns and gives the Home Office an opportunity to resolve the issue without court proceedings.
Can new evidence be submitted in Judicial Review?
No, Judicial Review assesses whether the decision was made lawfully based on the evidence originally provided. It does not allow for new evidence unless it is directly relevant to the legal challenge.
How long does Judicial Review take?
The process varies but can take several months or longer, depending on the complexity of the case and court availability.
What happens if Judicial Review is successful?
If the court finds the decision unlawful, it does not grant a visa but requires the Home Office to reconsider the case properly. The outcome will depend on how the Home Office applies the correct legal process.
Should I get legal advice before pursuing Judicial Review?
Given the potential risks and costs, seeking legal advice is strongly recommended to assess whether there is a strong basis for Judicial Review and whether alternative options may be available.
Glossary
| Term | Definition |
|---|---|
| Administrative Review | A process allowing applicants to challenge a visa refusal if a caseworking error is believed to have occurred. |
| Judicial Review | A legal challenge in court to determine whether a Home Office decision was made lawfully. |
| Home Office | The UK government department responsible for immigration, security, and law enforcement. |
| Caseworking Error | A mistake made by the Home Office when assessing a visa application, such as miscalculating points or misinterpreting evidence. |
| Pre-Action Protocol (PAP) | A formal letter sent before a Judicial Review, giving the Home Office an opportunity to reconsider its decision. |
| Upper Tribunal | The court responsible for handling Judicial Review cases related to immigration and asylum matters. |
| Visa Refusal Letter | A formal document issued by the Home Office explaining why a visa application has been refused and outlining any review or appeal rights. |
| Processing Time | The estimated duration for an Administrative or Judicial Review decision to be made, usually within 28 days for Administrative Review. |
| Points-Based System (PBS) | A system used in UK immigration to assess eligibility for work, student, and other visa categories based on points awarded for specific criteria. |
| Immigration Status | The legal position of an individual in the UK, which determines their rights to work, study, and remain in the country. |
