What is judicial review?

Judicial review is a court process that challenges the lawfulness of a decision made by a public body such as the Home Office. The judge does not decide whether the decision was right. The judge decides whether it was lawful. Most immigration judicial reviews are heard by the Upper Tribunal.

How judicial review works

Judicial review is a way to challenge the lawfulness of a decision or other conduct by a public body. In an immigration matter that body can be the Home Office, the First-tier Tribunal or a local council.^{[1]HM Courts & Tribunals Service, Apply for a judicial review in an immigration or asylum case} The application goes to the Upper Tribunal (Immigration and Asylum Chamber). The Pre-Action Protocol says that tribunal has jurisdiction over judicial reviews of most immigration decisions.^{[2]Ministry of Justice, Pre-Action Protocol for Judicial Review}

The judge looks at how the decision was made. The judge does not look at whether it was the right outcome. GOV.UK says you should use judicial review only if you challenge a decision on the grounds that it is unlawful, illegal, irrational or unreasonable. If you believe the decision was wrong rather than unlawful, GOV.UK points you to a right of appeal instead.^{[1]HM Courts & Tribunals Service, Apply for a judicial review in an immigration or asylum case} The Pre-Action Protocol adds that judicial review should be used only where no adequate alternative remedy, such as a right of appeal, is available.^{[2]Ministry of Justice, Pre-Action Protocol for Judicial Review}

The Upper Tribunal must receive your application no later than 3 months after the date of the decision you are challenging. If you apply late, you must explain why on the form, and a judge decides whether the application can still be considered.^{[1]HM Courts & Tribunals Service, Apply for a judicial review in an immigration or asylum case}

The stages and what they cost

An immigration judicial review has several stages, and a fee applies at some of them.^{[1]HM Courts & Tribunals Service, Apply for a judicial review in an immigration or asylum case}

The respondent is the public body whose decision you challenge. An interested party is someone directly affected by the claim. If you miss the 9-day service step or the 9-day fee step, the case can be struck out, which ends the claim.^{[1]HM Courts & Tribunals Service, Apply for a judicial review in an immigration or asylum case}

If a judge refuses permission, there are two paths. If the judge finds the application totally without merit, you cannot go further in the tribunal, but you can apply for permission to appeal to the Court of Appeal (form UTIAC14, fee £117). If the application is not totally without merit, you can ask for the permission decision to be reconsidered at a hearing (form UTIAC11, fee £449).^{[1]HM Courts & Tribunals Service, Apply for a judicial review in an immigration or asylum case}

When another court or route applies

GOV.UK lists challenges that do not go to the Upper Tribunal. They go to the Administrative Court instead. They include challenges to the validity of the Immigration Rules or legislation, to the lawfulness of detention and to a refusal of British citizenship.^{[1]HM Courts & Tribunals Service, Apply for a judicial review in an immigration or asylum case} The Administrative Court is part of the High Court and hears judicial reviews of decisions by public bodies.^{[3]HM Courts & Tribunals Service, Administrative Court: bring a case to the court}

If the matter is urgent, for example because removal from the UK is close, you can ask for urgent consideration. Form UTIAC4 goes in with the application at no extra fee. Form UTIAC5 can be sent after applying and costs £298.^{[1]HM Courts & Tribunals Service, Apply for a judicial review in an immigration or asylum case}

Before a claim, the Pre-Action Protocol says parties should generally follow its steps, which include a pre-action protocol letter. The protocol does not affect the 3-month time limit.^{[2]Ministry of Justice, Pre-Action Protocol for Judicial Review}

Example

Tomasz has an application for permission to stay refused. He checks his refusal letter and finds that he has no right of appeal or administrative review. He believes the Home Office applied the wrong rule.

His solicitor files form UTIAC1 and pays £179. Within 9 calendar days of the tribunal’s confirmation, the sealed copies go to the Home Office. The Home Office has 21 days to respond. A judge then decides on permission. If permission is granted, Tomasz pays £897 within 9 calendar days of the decision being sent. The two fees named on GOV.UK add up to £1,076.

That figure is tribunal fees only. GOV.UK says an unsuccessful claimant may also have to pay the respondent’s court costs.^{[1]HM Courts & Tribunals Service, Apply for a judicial review in an immigration or asylum case} This example describes the steps. It does not say how any case will end.

What people get wrong

People often treat judicial review as a second appeal on the facts. It is not. GOV.UK says not to apply if you believe the decision was wrong, only if you think it was unlawful. A judge who finds a decision unlawful then decides what remedy to give.

The second mistake is missing a short deadline. The 3-month limit, the 9-day service step and the 9-day fee step are all in the GOV.UK guidance, and a missed step can end the claim.^{[1]HM Courts & Tribunals Service, Apply for a judicial review in an immigration or asylum case}

The bottom line

Judicial review tests the lawfulness of a public body’s decision. It is used where an appeal or review is not available or not suitable, and it has strict time limits and fees. The 3-month limit starts from the date of the decision. GOV.UK recommends independent legal advice if you are unsure which route applies.