Judicial Review

Judicial review is a mechanism by which the High Court ensures that certain bodies act within the law. The court is not concerned with the merits of the decision sought to be challenged. Limitations of judicial review include being a discretionary remedy of last resort and will not often be a direct route to achieving a specific desired outcome. Where a statutory right of appeal exists an application for judicial review is unlikely to be entertained, even if it needs to be exercised out of country.

Since 15 February 2010, a two-tier tribunal appeal system has been in operation which has recently been held to have had significant implications for the scope of judicial reviews against the refusal of the Upper Tribunal (Immigration and Asylum Chamber) to grant permission to appeal. It is now confined to cases where some important point of principle or practice or some other compelling reason exists. There does appear to remain scope for bringing judicial review proceedings in relation to non-appealable decisions of the First-tier Tribunal and excluded decisions of the Upper Tribunal (procedural, ancilliary or preliminary) other than refusal of permission to appeal.

Examples of decisions that may be susceptible to review include:
•    ‘immigration decisions’ against which there is no right of appeal (e.g. removal directions, certified claims, decisions not to treat a claim as a fresh claim or refusal of applications deemed not to have made within the currency of leave);

•    decisions of the Tribunal that are not ‘decisions on the appeal’ and therefore not subsumed within the decision that is susceptible to appeal.

The legal framework is governed by the Senior Courts Act 1981, s. 31 and Part 54 of the Civil Procedure Rules 1998 (as amended). An application must generally be brought ‘promptly’ and in any event not later than three months of the decision and the pre-action protocol complied with. Good reasons will be needed for not doing so. The claim form (N461) and supporting documents need to be served on the defendant who will be given an opportunity to respond before a decision is made on the papers by a High Court Judge. In extremely urgent cases, form (N463) may be used to seek injunctive relief. Refusal of permission to bring a claim for judicial review can be renewed orally in the Administrative Court on Form (86B) within 7 days. If permission is granted  the case will proceed to substantive hearing unless an agreement can be reached between the parties.

The most useful summary of how to attack a decision comes from Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223, where the Court of Appeal held that the decision had to be reasonable in the sense that the authority:
a.    had to ask itself the right question in law,
b.    had to take into account any matters which, expressly or by implication, it was required to take into account by the provisions which conferred the discretion,
c.    had to ignore any matters which it was required to leave out of account, and
d.    must not take a decision which was “so absurd that no sensible person could ever dream it lay within the powers of the authority”.

Although the merits of the decision cannot be challenged, the reasoning in the decision or lack thereof may therefore constitute a basis of challenge to the decision. An alternative basis for challenge could be the process by which a decision has been reached. This can be challenged on four broad grounds:

a.    in reaching the decision the decision maker has given no, or insufficient weight, to a legitimate expectation of the claimant,
b.    the decision maker has failed to consult,
c.    the decision maker has failed to give a person directly or adversely affected by the decision an opportunity to be heard,
d.    the decision is flawed in apparent bias.

It must be remembered that the end result of a successful judicial review may well be that the decision maker reaches the same decision again but by a lawful route.

Applicants may be eligible for legal aid if they satisfy the means and merits tests and if this is possible, direct access will not be available.

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