Judicial review – how you can challenge your visa refusal
When can you make a judicial review application?
Upon refusal of your immigration application you may be able to apply for a judicial review of the decision. Judicial review is a court process which reviews the steps the Government or public body has taken to reach a decision on an immigration application. Whereas an appeal reviews the ultimate decision made, judicial review focuses on the legality of the steps taken to reach the said decision.
If you believe that the refusal of your immigration application was based on unfairness, irrationality or illegality, you can ask for a judicial review of the decision process.
How does judicial review work?
Judicial review is one of the results of the separation of powers within the UK. There are three main bodies governing the rule of law:
- Legislative body – Parliament
- Executive body – government and public authorities
- Judicial body – courts
In order to maintain the rule of law, these bodies remain independent of each other and perform different functions. Additionally, each body is capable of reviewing and scrutinising the others’ actions to enable balance between the powers and to ensure the law has been applied fairly and correctly.
Judicial review is the process by which judges oversee the process taken by the Home Office, the governmental body usually involved in immigration cases. Immigration cases taken for judicial review are usually held in the Upper Tribunal.
What are the grounds for making a judicial review application?
Applicants can bring a judicial review claim on specific grounds:
- Illegality – when the law was applied incorrectly or when the decision was made outside of conferred powers
- Irrationality or unreasonableness (Wednesbury)
- Procedural impropriety
- Disproportionality – decision was in breach of the Human Rights Act 1998
- Breach of EU law
Important points to consider when making a judicial review application:
- Judicial review can only be a viable remedy if all other legal remedies have been exercised; it is a final resort
- Judicial review is not an automatic right given to applicants with refused applications. It has to be applied for within the time limit and the courts will decide to accept or reject the application for judicial review based on the merit of the case
- A case of judicial review does not focus on the outcome of the case but rather the procedure; therefore, there is no guarantee that the decision will change
Potential outcomes under judicial review:
If judges conclude there was an error at any stage during the procedure of a case, they have the power to:
- Quash (invalidate) the decision
- Issue a prohibiting order – instructing a body to refrain from doing something
- Issue a mandatory order – compelling authorities to fulfil their duties if there was a failure to act
- Issue a declaration – a judgement that clarifies the rights of the respective parties without ordering the authority to do anything
- Issue an injunction – a court order made to prevent the body from acting unlawfully
- Award damages – a rare remedy where the court grants damages under specific conditions
- Exercise discretion – the choice not to grant a remedy even if the government body has acted unlawfully; this can happen if the applicant has misconducted
How can NA Law Solicitors help with a judicial review application?
As a niche immigration law firm, NA Law Solicitors can advise on whether an application for judicial review is the most appropriate route to pursue. Judicial review is a lengthy and complex process that is very rarely successful without professional legal help. We have extensive contacts with trained barristers that we will work with to represent your matter from the beginning to the end of the entire process.
Contact us today for an initial case assessment to discuss your legal options.