Appeals & Judicial Review

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At present, in the UK there are rights of appeal against the following decisions:

1. Refusal of Human Rights Protection claims and revocation of protection status.
2. Refusal of a visa and refusal to vary leave to remain in some situations where the application was made before the Immigration Act 2014 was in force.
3. Refusal to issue European Economic Area Family Permits as well as certain other EA decisions where appeal rights are contained in Regulation 36 of the Immigration (European Economic Area) Regulations 2016.
4. Deprivation of British citizenship where section 40A of the British Nationality Act 1981 applies.

Where there is no right of appeal it may be possible for a person to apply for Administrative Review of a refusal of an application if it can be proven that a case working error has occurred. If a case is lost in the First-Tier Tribunal we may be able to argue that the decision was legally wrong. For example, it may be possible that the Tribunal did not apply the correct law, wrongly interpreted the law, did not follow the correct procedure, or had insufficient evidence to support its decision. The applicant must ask the First-Tier Tribunal for permission to appeal to the Upper Tribunal. The deadline to ask the Upper Tribunal for permission to appeal is 14 days after the date of the decision if you are inside the UK, and one month after the date of the decision if you are outside the UK.

What is the difference between an appeal and a judicial review?

In a judicial review proceeding we challenge the way in which the decision was made, rather than whether the decision or the conclusion reached is correct. In this way, judicial review is not really concerned with the conclusion; it focuses more so on the procedures that have been followed. Accordingly, the High Court will not substitute what it thinks is the correct decision and this means that the Home Office will be able to make the same decision again, so long as it is done lawfully. If you want to argue the decision itself is incorrect, you should choose to appeal, as judicial review may not be the best way to challenge the actual outcome of your case.

What is the cost of submitting Judicial Review Applications?

You will usually have to pay a court fee to start your case.  The fee for permission to apply for Judicial Review is £154. If the application for Judicial Review is refused and you need to make a request for the refusal to be reconsidered, the cost is £385.  If permission to proceed with the Judicial Review has been granted by a Judge, the case will proceed to a substantive hearing. The cost for this will be £700.

How long does a Judicial Review case take?

Before bringing any Judicial Review proceedings, the claimant must think carefully about the implications of doing so.  Before submitting an application for leave to Judicially Review there are codes of practice for pre-trial negotiations. The Pre-action Protocol and Judicial Review Proceeding is a very important stage because it serves to resolve the issues without the need of litigation, or at least to narrow the issues in the litigation.  A Judicial Review claim must be brought within the relevant time limits, which is three months, and if a Pre-Action Protocol was sent, the defendant should normally be given 14 days to respond to the Pre-Action letter.

In order to issue the claim, the claimant has to lodge a form in Court with the relevant fee and must file one copy of the completed Judicial Review Claim Form and an additional copy of the claim form for every defendant and interested party to the claim.  The claimant is required to apply for permission for Judicial Review and the form must be accompanied by certain documents. The claimant must have a sealed copy of the claim form with the bundle on any interested parties within seven days of the claim being issued.  The defendant or any interested parties served with the claim form who wish to take part in the application for permission to apply for Judicial Review must file and serve an Acknowledgement of Service. The Acknowledgement of Service must be filed with the Court within 21 days of the claim papers being served.  The Court may refuse permission to apply for Judicial Review unless satisfied that there is an arguable ground for Judicial Review, having a realistic prospect of success. If permission is refused the claimant should consider the Judge’s reasons for refusing and can either take no action, or may request an application for permission to apply for Judicial Review to be reconsidered at an oral hearing, often referred to as a renewed hearing.  The claimant must provide grounds for renewing the application for permission, and address the Judge’s reasons for refusing permission, by explaining in brief terms why the claimant maintains that these reasons are wrong. The standard time estimate for the renewed permission application is 30 minutes.

To get to this stage of the hearing, in a usual Judicial Review case, can take up to six months or less.

What are the success rates for Judicial Review cases in the UK?

It is difficult for us to provide accurate statistics because there are high rates of settlement being in favour of claimants once an application for Judicial Review is submitted. Overall, our experience paints a picture of relatively high rates of success in Judicial Review and Permission stages, which provide an often effective remedy.

How do I win my Immigration Appeal in the UK?

It is important to note that not all immigration decisions have a right of appeal.  Currently there is only a right of appeal within the UK if the Home Office refuses an application based on:

1. An international protection claim
2. A decision to revoke refugee status for humanitarian protection
3. A claim for the right to remain in the UK under EU law
4. A human rights claim

The most important thing if you wish to appeal is to state which grounds you are relying on. Once submitting the appeal within 14 calendar days after you were sent Notice of the Decision by the Home Office, there will be a period of delay.  You must send the Tribunal a copy of your reasons for refusal together with the Notice of the Decision, the application form and your Grounds. You must pay the fee and after submitting the appeal, you should prepare the documents for the Judge to look at. The documents will have to include the evidence that you will rely on to support your case.  These will usually include witness statements, documentary evidence, legal arguments and on occasion country information and expert reports.

Danielle invites you to take a look at her blog, where you will see the diverse range of clients that she has helped in both appeals and judicial review cases.

If you have any questions about the process or would like to appeal the courts or Home Office decision, please contact Danielle on 020 7267 4133. Danielle will only charge you for the first consultation if you decide to become her client and if she can assist you.