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Judicial Review and its principles

Judicial Review is a common legal remedy in majority of immigration based applications. One of the main reasons is for the withdrawal of appeal rights and the introduction of Administrative Reviews (AR). The scope of AR is limited and does not permit the Appellant to challenge a decision, or even requesting an application of discretion.

Judicial Review has been a growth area of litigation. One of the main reasons in this increase is due to the increasing role of the Government regulating many areas of life. Public bodies take a vast number of decisions which impacts a persons day to day life.

I hope the following will give you an understanding on the Judicial Review process and when to lodge one, as these can be quite expensive as well as serious implications to future immigration based applications. You must have a legitimate claim, and able to demonstrate that the decision was made unlawfully.

The Court are now Jetly & Anor v The Secretary of State for the Home Department [2019] EWHC 204 (Admin), Mrs Justice Andrews DEB, made a serious remarks on the conduct of the lawyer representing the case in question, putting the matter to SRA for the lack of understanding the CPR rules.

 

Judicial Review

In short, judicial review considers the following grounds:

  1. A failure to act, such as a delay in issuing a document or making a decision.
  2. The setting of removal directions, which usually means that the person lodging the JR believes their removal would infringe their rights (for example, rights under the Refugee Convention, European Convention of Human Rights or European Community instruments).
  3. A refusal to accept that further submissions amount to a fresh claim.
  4. A decision to certify a claim as clearly unfounded.
  5. Detention.

Application form types in a Judicial Review application

The Court sets out specified application forms which are required to be submitted based on the claim and the public body.

You must ensure that the correct form is used, as this failure could lead to your JR application being stricken out and you can land yourself in serious conduct issue including costs being awarded against you.

The judicial review procedure is mainly (but not exclusively) governed by CPR Part 54 and the associated practice directions. CPR Part 54 and the associated practice directions are required reading for any litigant considering judicial proceedings.

Factual disputes

One of the most common grounds of refusal which are usually challenged is a factual matrix error. A decision maker when considering to apply the appropriate law and policies, considers wrong facts, making the decision unlawful. A judicial review application lodged will seek to remedy this error and consequently force the decision maker to either concede or allow the Court to intervene and penalise the defendant.

Further to this, the impact of the Human Rights Act 1998, whereby Section 6 of the Human Rights Act 1998, makes it unlawful for a public authority to act in violation of certain rights under the European Convention of Human Rights. The Court are tasked by the claimant to assess and make their own findings. We know that Brexit will bring new changes to the Human Rights Act and it is likely to be replaced with the Bill of Rights, however this is yet to be finalised.

Illegality of a decision

In most judicial review applications, a claimant will challenge the decision by lodging the claim that the decision was wrong and illegal, as it was not in accordance to the published law. In other words, “illegality” is usually used to describe circumstances where decision makers fail to direct themselves properly about the law. As Lord Scarman stated:

“It is now settled law that an administrative or executive authority entrusted with the exercise of a discretion must direct itself properly in law”. 

The Human Rights Act 1998, since its implementation has played a crucial part in the increase of challenging the decision. The Administrative Court may be required to make findings of fact in order to determine whether the European Convention has been violated.

The Equality Act 2010 has also played it’s role in the challenge of a decision and whether it was illegal of a decision made by a public body. In the case of Brutus v Cozens, it was raised that the Court must consider its facts correctly and apply the rule of law carefully based on the circumstances. However it must be noted that judicial review is a discretionary remedy. It does not mean that all decisions will be intervened by the Administrative Court.

Urgent applications for judicial review

In most cases, an urgent application for judicial review is not required. However where there is case whereby a person is being removed from the UK or a person being refused a welfare benefits, it may be necessary to apply for interim relief. The Administrative Court has procedures in place to make rapid decisions in these types of urgent situation.

You must not make an application out of hours unless it is critical. We find that a number of practitioners file unnecessary claims out of hours, and has serious implications to the matter. Cases are not prepared well and not in line with the CPR rules. An out of hour’s Judge, normally will allow interim relief to avoid the matter to escalate however can penalise you if the claim was done wrongly.

If the urgent application is required, then the claimant must set out the grounds in detail with all material facts as well as evidences to which the claimant wishes to rely upon.

Substantive hearing

Once permission is granted by the Judge of the Admin Court, the matter is listed with specific directions requiring a case to be heard on. You must ensure an trial bundle is lodged with the Skeleton argument and other prepared documents depending on your claim.

The CPR provides you with full directions including a list of directions that you must follow. A claimant must not go before a Judge unless he/she are prepared fully. It is important that your Lawyers have prepared for the matter including the filing of the appropriate appeal bundle to all interesting parties. Important notes to follow:

  1. There must be a Skeleton argument filed 21 working days before the substantive hearing. If there will be a delay to submit this, you must file a consent to all parties to permit the late submission. Usually, you must submit this to also the Admin Court, confirming the agreement of the late submission.
  2. The defendant usually submits their Skeleton argument 14 working days before the substantive hearing.
  3. The Skeleton argument must comply with the CPR.

Now coming to the Trial Bundle, this should also be filed and it is good practice to file this with the Skeleton argument, as it can make references to documents and other evidences to which you rely upon.