Understanding Immigration Judicial Review

Immigration judicial review is a legal process in which a court examines the legitimacy of a decision made by the Home Office or the Immigration Tribunal. Rather than assessing whether the final outcome was correct, the focus of judicial review is on the procedural fairness and legal validity of how the decision was reached.

In this form of legal challenge, the court evaluates whether the proper legal procedures were followed and whether the decision-making body acted within the bounds of the law. It does not serve as an appeal on the merits of the decision itself but rather as a safeguard against unlawful or unfair administrative conduct.

Judicial review is considered a remedy of last resort, meaning all other possible routes such as appeals or formal complaints must be exhausted before initiating this legal action. Importantly, the Home Office does not issue notifications advising individuals of their eligibility to pursue a judicial review, which can leave many unaware of this potential avenue.

This legal route is often complex, high-risk, and financially demanding, and should not be undertaken lightly. Given the intricate nature of judicial review proceedings, it is strongly recommended to consult with a legal professional who specialises in this area of immigration law to assess the viability of your case and guide you through the process.

Is Judicial Review the Appropriate Legal Route for Immigration Decisions?

When faced with an adverse immigration decision from the Home Office, it’s essential to identify the correct legal mechanism for challenging it. If your concern is that the decision was factually incorrect rather than legally flawed, then pursuing an appeal to the First-tier Tribunal may be more suitable than initiating judicial review proceedings. Appeals are full evidential hearings where a judge examines the facts and circumstances of the case. If successful, the judge may overturn the Home Office decision or remit the matter for reconsideration. Your right to appeal will be specified within the decision letter.

Should you wish to dispute a decision made by the First-tier Tribunal, an appeal to the Upper Tribunal may be possible, providing a further alternative to judicial review.

In scenarios where no statutory right of appeal exists, you may be eligible to seek an Administrative Review. This is an internal Home Office mechanism that allows for a paper-based review of your case, focused solely on identifying casework errors you have highlighted. You will be informed in your decision letter whether administrative review is an option.

Administrative Review vs. Judicial Review: What’s the Distinction?

Common Situations Where Judicial Review May Apply in Immigration Law

Judicial review is a remedy available only in limited circumstances. It may be appropriate in the following instances:

• Your immigration application has been refused, and you are left without a right of appeal or further internal review.

• The Home Office has certified your asylum or human rights claim as “clearly unfounded,” thereby denying you an appeal.

• You have submitted further evidence which has been rejected as not constituting a “fresh claim,” and you have no right to appeal.

• Both the First-tier and Upper Tribunals have refused permission to appeal, yet you maintain that the decision involves an error of law.

• You are challenging the legality of your immigration detention.

• You are seeking to prevent an imminent removal or deportation from the UK.

Legal Grounds for Judicial Review in Immigration Cases

There are three principal legal grounds on which an immigration decision may be challenged through judicial review:

• Illegality – The decision-maker acted beyond the legal authority granted to them.

• Procedural Unfairness – The process leading to the decision was flawed or biased.

• Irrationality – The decision was so unreasonable that no rational decision-maker could have reached it.

Additionally, any decision that is incompatible with the rights enshrined in the Human Rights Act 1998 may also be eligible for judicial review.

If the court finds in your favour, the decision will not be re-made by the judge but instead returned to the Home Office for reconsideration.

It is vital to note that judicial review is not the appropriate remedy if you are merely dissatisfied with the outcome of a decision or if an alternative legal route, such as an appeal or administrative review, is available.

Time Constraints for Immigration Judicial Review

Applications for judicial review in immigration cases must be submitted promptly, and no later than:

• 3 months from the date of the Home Office decision you intend to challenge.

• 1 month from receiving the written reasons of a First-tier Tribunal decision or notice that a set-aside request has failed.

Delays can severely impact the viability of your claim. Therefore, early legal advice is crucial if you are considering this route.

Jurisdiction: Where to Lodge an Immigration Judicial Review

Most immigration-related judicial reviews are handled by the Upper Tribunal (Immigration and Asylum Chamber). However, certain types of claims must be submitted to the Administrative Court (High Court). These include challenges involving:

• The validity of immigration rules or legislation.

• The legality of immigration detention.

• Refusal to include a sponsor on the UKVI register.

• Refusal of British citizenship.

• Refusal of asylum support.

• Decisions by the Upper Tribunal or the Special Immigration Appeals Commission.

• Human Rights Act 1998 declarations of incompatibility.

• National security-related certifications.

• Trafficking decisions by a competent authority.

The Judicial Review Procedure in the Upper Tribunal

Step 1: Pre-Action Protocol Letter

Before starting formal proceedings, a Pre-Action Protocol Letter must be sent to the Home Office. This document outlines the reasons why the decision is believed to be unlawful, procedurally flawed, irrational, or contrary to human rights law. The Home Office typically responds within 14 days, either by reconsidering the decision or maintaining their stance.

Step 2: Issuing Judicial Review Proceedings

If the response to your pre-action letter is unsatisfactory, you can proceed by filing an application for judicial review. The form must be submitted within the specified time limit and should include:

• Detailed legal grounds.

• Supporting documentary evidence.

• A bundle of all relevant documents, properly paginated and indexed.

The Home Office must be served with this application, and proof of service must be provided to the tribunal within 9 days.

Step 3: Home Office Acknowledgement

Once served, the Home Office has 21 days to file an acknowledgment of service. They may opt to reverse their decision or defend it by filing a written defence.

Step 4: Permission to Proceed

A judge of the Upper Tribunal will assess whether permission to proceed should be granted. This is usually done on paper. If permission is refused, you can request an oral hearing (unless your case is certified as “totally without merit”). If permission is granted, the case proceeds to a full judicial review hearing.

The Final Hearing

During the full hearing, the tribunal will listen to legal arguments from both sides. If the Home Office’s decision is found to be unlawful, the judge will not substitute their own judgment but will direct the Home Office to re-make the decision lawfully.

At least 21 working days before the hearing, you must serve:

• A skeleton argument.

• A complete bundle of evidence.

The Home Office will also submit their skeleton argument. After the hearing, the tribunal will issue a judgment, which may include directives for costs typically, the losing party pays the legal costs of both sides.

Immigration Judicial Review: Timelines and Key Considerations

Estimated Processing Times for Immigration Judicial Reviews

The duration of an immigration judicial review varies significantly depending on how far the case progresses before resolution. A critical factor influencing the overall timescale is the procedural stage at which the claim is conceded, settled, or adjudicated.

If the Home Office reconsiders and reverses its decision upon receipt of a Pre-Action Protocol Letter, you may receive a response within approximately 14 days.

Conversely, if the Home Office elects to fully contest the claim through all judicial stages, and the matter proceeds to a final hearing, the entire process could extend over 12 months or more before a definitive outcome is delivered.

Court Fees for Immigration Judicial Review Claims

Applicants pursuing an immigration judicial review should be aware of the applicable court fees:

• £154 – Filing an initial judicial review application

• £385 – Requesting an oral reconsideration of a permission refusal

• £770 – Attending a full judicial review hearing (this is reduced to £385 if an oral reconsideration fee has already been paid)

Applicants with limited financial resources may be eligible for fee remission or a reduction, subject to specific eligibility criteria.

Outcomes of a Successful Judicial Review

Where a judicial review results in a finding that the Home Office’s decision was unlawful, irrational, procedurally unfair, or in violation of human rights, the court does not typically substitute its own decision. Instead, the case is remitted to the original decision-making body for reconsideration in accordance with legal principles.

Depending on the nature of the case, the Tribunal may:

• Issue a Mandatory Order – Directing the Home Office to make a lawful decision within a defined timeframe

• Grant a Prohibitory Order – Preventing unlawful action, such as removal from the UK

• Make a Quashing Order – Overturning the previous decision, requiring a fresh evaluation

• Grant an Injunction – Temporarily halting removal or other action pending a lawful decision

• Declare Legal Position – Clarifying a disputed point of law for future reference

While the Home Office may still reach the same conclusion upon reconsideration, it must do so by following proper legal processes and considering all relevant evidence and case law.

If Your Judicial Review Is Unsuccessful

In the event your claim is dismissed, you may have the option to seek permission to appeal to the Court of Appeal. This is a complex legal step, and consultation with an immigration judicial review specialist is strongly advised before proceeding.

Legal Costs in Judicial Review Proceedings

Cost implications are a key factor when deciding whether to pursue judicial review. The general rule in judicial review cases is that the losing party pays the legal costs of the successful party.

This means:

• If your claim is successful, the Home Office may be required to cover your legal expenses

• If you are unsuccessful, you may be ordered to pay the Home Office’s legal costs

The Tribunal exercises discretion in awarding costs, and will assess the overall conduct of both parties before and during proceedings. The following considerations are especially important:

• Whether the Pre-Action Protocol was followed appropriately

• Whether the claims and defenses were pursued reasonably

• The degree of success achieved by each party

Applicants are advised to consider the risks of potential cost liability before initiating proceedings.

Immigration Status During Judicial Review Proceedings

Commencing an immigration judicial review does not automatically extend your immigration leave under Section 3C of the Immigration Act 1971. The interaction between judicial review and immigration status is legally nuanced.

If you are uncertain about your lawful status during proceedings, it is advisable to obtain legal guidance tailored to your specific circumstances.

Risk of Removal During Judicial Review Proceedings

Filing an application for judicial review does not in itself prevent removal or deportation from the UK. However, the Home Office may postpone enforcement action if the court grants permission for the judicial review to proceed.

That said, deferral of removal may be refused in certain cases, including where:

• A judicial review was filed within six months of a prior similar claim or appeal

• The same or similar issues could have reasonably been raised in an earlier matter

• The judicial review was lodged during a three-month ‘removal window’

• The challenge relates to scheduled charter flight removal

In such circumstances, you may still be able to apply for an urgent injunction to halt removal pending judicial review.

How Link And Day Lawyers Can Support You

Our team of expert immigration professionals collaborates closely with both private individuals and corporate clients across the UK and internationally to deliver meticulously prepared judicial review applications challenging Home Office visa and immigration refusal decisions. We also offer high-level legal representation throughout the judicial review process.

For those aiming to dispute a refusal by the Home Office through judicial review, our specialists offer a blend of in-depth legal guidance and strategic advocacy, all delivered with professionalism and empathy.

Whether you’re seeking an assessment of your case’s eligibility for judicial review, support in drafting and submitting your judicial review application, or experienced representation at a judicial review hearing, our legal professionals provide comprehensive, client-focused assistance. Backed by years of experience, we have a strong track record of successfully navigating complex immigration review proceedings.

Understanding that every case is unique, our immigration experts develop bespoke legal strategies tailored to suit the specific goals and circumstances of each client.