Where an application for entry clearance or leave to remain has been refused by the Home Office, and the individual has not been granted necessary rights to appeal against the refusal, the Home Office can be challenged by way of Judicial Review.
In line with the Civil Procedure Rules, a Pre-Action Protocol notice, which is a documentary evidence or information given via a Pre-Action letter, must be submitted to the Home Office, allowing them at least a minimum of 14 days to evaluate and change their decision.
The applicant can make an application to the Upper Tribunal for permission to apply for Judicial Review, if the Pre-Action Protocol letter has not been responded to by the Home Office within 14 days or if the decision to refuse is maintained by the Home Office. This application is normally made on papers and without a court hearing, the court will grant permissions and refusals on paper. The period after negotiations between the Claimant’s solicitors and the solicitors representing the Home Office, UKBA (the Treasury Solicitors) can be resolved by consent when the majority of the applications for permission to apply for Judicial Review.
An application for renewal of permission for Judicial Review can be made within 7 working days for the application of permission to be decided after a court hearing if the permission has been refused by the Upper Tribunal. After the court hearing, the application for permission will be granted or refused if the court lists the matter for hearing.
The Judicial Review will be listed for substantive hearing if the application for permission is granted either after the hearing in the court or at the stage of application on papers. This statement illustrates that it can be decided whether or not the decisions of the Home Office, UKBA are in accordance with the relevant laws by the Upper Tribunal.
Generally, before making a claim for Judicial Review, the protocol sets out certain codes of good practice that contain the steps which parties should follow. The avoidance of unnecessary litigation is the objective of the pre-action protocol.
A letter should be sent to the defendant (Home Office, UKBA) before the claimant makes a claim for Judicial Review (JR) against the Home Office, UKBA. Avoiding litigation with the Home Office, UKBA and identifying the issues in dispute is regarded as the purpose of the letter. There are some required features that should be contained in the letter such as the date and details of the decision of the refusal letter, any form of act or omission being challenged and an adequate summary of facts against the Home Office, UKBA which is based on the Judicial Review claim.
The details of any relevant information made by the claimant seeking from the Home Office, UKBA should also be included in the letter as well as an explanation of why the information is considered relevant. With exception to the circumstance where by the case requires immediate action to be taken, the claim against the UKBA by the Judicial Review (JR) should not be made until the anticipated reply date stated on the letter before the claim has passed.
Unless there are good reasons for not responding within the 14 days period, certain sanctions will be imposed if the Defendant (Home Office, UKBA) does not respond to the letter before the pre-action protocol letter within 14 days. If the UKBA responds within the 14 day period but continues to maintain their decision to refuse application or they do not reply to the pre-action protocol letter within the specified period, an application for permission to apply for Judicial Review can be filed in the Upper Tribunal.
The time limit specified by CPR 54.5(1) does not affect the protocol, that is, after the grounds upon which the claim is based first arose, a prompt application for permission to apply for Judicial Review must be made and not later than 3 months.
A claim form (Form N461) is required for the application for permission to apply for Judicial Review and the form must comprise of or be accompanied by:
The claim form must consist of information required by Part 16 of the Civil Procedure Rules supplemented by paragraph 16 of the Practice Direction, if the applicant is seeking to raise any issue under the Human Rights Act 1998 or any solution available under this Act.
The following must also be attached to the claim form:
In the scenario where it was not possible for the applicant to file the above document, he or she must be able to indicate which documents they have been unable to file and they should also be able to specify why the documents are currently unavailable. The defendant or interested party may strive for prolonged time for the lodging of its acknowledgement of service awaiting receipt of the missing documents.
Sufficient additional copies of the claim form must be lodged by the individual for the court to seal them, that is, stamp them with the court seal, this would enable the applicant to serve them on the defendant or interested party. Any interested parties or the defendant will be served copies of these documents as soon as the sealed copies are returned to the applicant.
Relevant legislative provisions and statutory instruments are required for proper consideration of this application must be provided by the solicitors if they represent the applicant and if the applicant is acting in person, he or she should also comply with these requirements.
SERVICE ON THE DEFENDANT AND ANY INTERESTED PARTIES
Unless the court directs otherwise, the sealed copy of the claim and other accompanied documents must be served on the defendant or on any interested party within 7 days from the issued date, that is, the date shown on the court.
A Certificate of Service in Form N215 in the relevant Administrative Court Office must be lodged the applicant within 7 days of serving the defendant or interested parties.
APPLICATION FOR URGENT CONSIDERATION OR INTERIM ORDER
A Request for Urgent Consideration, Form N463 (which can be acquired from the HMCS website or the relevant Administrative Court Office) must be completed by the applicant, if he or she wants their application for permission to be considered or heard by a Judge as a matter of urgency and to look for an interim injunction. The above mentioned form sets out the motives for urgency and the timescale sought for consideration of the application for permission, that is, within 72 hours or earlier if it is necessary and this also includes the date that the substantive hearing should take place.
In addition to seeking an interim injunction, the individual must provide a draft order and the bases for the injunction. The applicant must provide the claim form, the draft order and the application for urgency by FAX or post to the defendant and interested parties. In respect to the application, the individual will advise the defendants or interested parties of the application and notify them that they may make representations directly to the Court.
A Judge will contemplate the application within the requested time when he or she deems it fit to do so. The application for permission may be refused by the Judge if he or she considers it appropriate.
The Administrative Court Office will communicate with the individual and the representatives of the other parties to schedule a permission hearing based on the time period directed by the Judge, which is if the Judge directs that an oral hearing must occur within a specific time period.
In the case where a distinctly inappropriate urgency application is prepared, contemplation may, in appropriate cases, be given to making a wasted costs order.
ACKNOWLEDGEMENT OF SERVICE
An acknowledgement of service, that is Form N462, must be filed in the Administrative Court Office by any individual who has been provided with the claim form and he or she wishes to take part in the Judicial Review and this is to be done within 21 days of the proceedings that has been served upon them.
The summary of grounds for contesting the claim must be shown on the acknowledgement of service and those individuals who have not previously been identified or served as an interested party but are considered as interested parties must have their names and addresses on this form.
In not more than 7 days, the individual and interested parties must be served the acknowledgement of service after it has been filed in court. It becomes essential for the party to acquire the permission of the court to take part in any oral hearing that is based on the application for permission if failure to file an acknowledgement for service occurs.
DECISION ON AN APPLICATION FOR PERMISSION TO APPLY FOR JUDICIAL REVIEW
On the papers, a single judge contemplates the applications for permission to proceed with the claim for judicial review. The objective of this process is to certify that applications are speedily dealt with and does not acquire unnecessary expenses.
Upon receiving the Administrative of Service or at the expired time limit for lodging such an acknowledgement, the papers will be forwarded by the Administrative Court Office to the Judge.
The individual, the defendant and any other interested parties that has been served a claim form will receive the decision of the Judge and his or her reasons for the decision (Form JRJ). The applicant must lodge an additional fee of 215 pounds or a further Application for Remission of Fee, i.e. Form EX160, within the 7 day period of service of the judge’s decision with the relevant Administrative Court Office if the Judge grants permission and the individual wishes to purse the claim further. The file will be closed by the Administrative Court if the individual does not lodge the additional fee.
The individual may request a revaluation at an oral hearing based on certain decisions such as if the permission was refused, if it was granted but with conditions or granted on certain grounds only.
RESPONSIBILITY FOR THE COSTS OF THE DEFENDANT IF THE APPLICATION IS UNSUCCESSFUL
Based on the general rule, the costs of the other parties are ordered to be paid by the party losing a substantive claim for Judicial Review. In all of the circumstances, where the Judge deems it appropriate he or she has the discretion to deal with the issue of costs. With respect to any unsuccessful paper application, costs are awarded. The Acknowledgement of Service normally receives any application by the defendant or interested party for costs.
If an application to apply for Judicial review has been granted, the courts may proceed with making case management directions as per CPR 54.10(1) for the purpose of progressing with the case. This may include venue directions relating to the service of claim form as well as all material evidences relating to other individuals and as to expedition.
Parties who have been served a claim form and wish to challenge the claim form (or provide additional grounds in support of it) must do so within thirty five dace of receiving the order granting permission. Within this period they must file and serve on the Court as well as the other parties detailed grounds for challenging the decision or providing additional grounds to support it as well as presenting any written evidence that may be relied upon.
Having completed the above, you may now be represented at the hearing. In an event that you want to rely on documents that was not included in the original filling; having already filed detailed grounds, the party must file a paginated bundle at the courts as at the time the detailed grounds are filed. Please note that it is within the powers of the Courts to extend or cut short the window for lodging evidence.
Listing a case for Hearing
Where the time allotted for lodging evidence has elapsed, the case will then be moved to a warned list and all the concerned parties will be formally informed of this. In an event that an expedition direction has been given, the case will assume priority, particularly against other cases awaiting fixing.
Even though it is a norm for Administrative Courts to give fixed dates for hearings, a need to short warn cases may arise in a bid to make up for the large number of settlement that may be occurring in the list. Where your cases falls among the category of cases to be short warned, you will be formally notified.
Filing Skeleton Argument
This refers to the document lodged by a party with the courts before a major hearing for any judicial review application. To lodge a skeleton argument, the party lodging the skeleton arguments must file it with the court as well as serving it on the other party within 21 days before the date of the hearing or the short warned date, in the event that the case has been short warned.
Skeleton arguments would normally contain the following:-