Judicial reviews and injunctions

Judicial review is the legal process that allows a person to challenge the lawfulness of a decision, action or failure to act of a public body such as a government department. There are a number of confusions to the impact on a judicial review application and an immigration appeal. They are not the same. The outcomes are different.

Immigration removal cases, where there has been an asylum or human rights claim, should not usually reach the stage of JR until after they have had access to the appeals system.

Types of event that could be subject to JR are:

• a failure to act, such as a delay in issuing a document or making a decision;
• 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);
• a refusal to accept that further submissions amount to a fresh claim;
• a decision to certify a claim as clearly unfounded;
• detention.

It is important to understand the grounds of the judicial review, and the procedure laws must be carefully followed. You must submit and give notice where possible.

The Home Office will only consider deferring removal if a JR application made in England and Wales is properly lodged with the Administrative Court in accordance with Practice Direction 54A Section II of the Civil Procedure Rules, or properly lodged with the Upper Tribunal in accordance with the Tribunal Procedures (Upper Tribunal) Rules 2008 (as amended).

The Home Office will normally defer removal where a JR application made in England and Wales has been properly lodged with the Administrative Court or the Upper Tribunal in accordance with the relevant procedure rules. However, removal will not automatically be deferred where there has been less than 6 months since a previous JR or statutory appeal or the person is within the removal window, or the person is being removed by special arrangements (including by charter flight).

Since 1 March 2011, an end-to-end process has been in place for working with families with children (see family returns process). This new process provides families with greater support and advice when considering their options for voluntarily leaving the UK (assisted return). Where families are not prepared to return voluntarily they may be given the opportunity to leave under their own steam (required return) before enforcement action (ensured return) is considered.

As part of the assisted return stage of the new process, all families liable for return are given the opportunity to attend a family return conference to discuss their options for returning home and raise any legal challenges or further submissions regarding their departure. Where necessary, families are then given a minimum of 2 weeks
after their family return conference to think about how best to go home before the Home Office consider setting removal directions.

Cases certified under section 94, section 94B or section 96 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) and regulation 33 of the Immigration (European Economic Area) Regulations 2016, as well as third country cases do not attract a statutory in-country right of appeal. When you give notice of removal to a person in these cases, you must satisfy yourself that they have the opportunity to access the courts before their departure is enforced. If notice of removal is given at the same time as the NSA or third country decisions this is likely to be their first opportunity for legal redress.

A minimum of 5 working days’ notice must therefore be given between giving notice of removal and the removal itself (unless the case has already been reviewed by JR, or in some circumstances where the individual has received such notice previously, see NSA cases already reviewed by JR or following a failed removal. Where a certification decision is taken in a third country case to certify the asylum claim on safe third country grounds under paragraph 5(1) of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004 (the 2004 Act), they
must be given a minimum of 5 working days in order to challenge that decision.

If a subsequent human rights claim is separately certified as clearly unfounded under paragraph 5(4) of Schedule 3 to the 2004 Act, whether following a notice of removal or not, a further notice period of at least 5 working days must be given. This applies whether or not the person has previously been served with notice of a removal window (and whether or not the removal window is still open), a limited notice of removal, or notice of removal directions.