Stage 1 – Procedural Hurdles
This chapter includes:
- Requirement of Public Body
- Requirement of Sufficient Interest
- Public Law Issue
- Time Limit for Judicial Review
- Existence of Alternative Remedies
Judicial review is only available against the decisions of a Public Body. If the body whose decision is challenged is a private body, for example, a private school, an airliner, a mobile phone company, then the remedy for an aggrieved person will lie in private law.
Some private bodies who were once under Government control are also considered as public bodies. The test for public bodies is a source of its’ powers if the body is set up under statute or by some delegated legislation then it will be held as a public body.
Examples Public Bodies
- Gas Board, Water and Electric Supply Board, Regulatory bodies, British Rail, British Telecom, Universities, are a few examples of Public Bodies who have been privatised over the years.
- Ahmad is unhappy with the decision of the Gas Board, he can ask to seek permission to lodge Judicial review as the Gas Board will be treated as a public body
Only the person who is affected by the decision of a public body is entitled to seek permission to apply for a Judicial Review in a High Court. Courts apply a strict criterion and it is the discretion of the court to grant or refuse an application for Judicial Review. Permission is normally granted where an arguable case has been shown. A dissatisfied person (who is not permitted to lodge a JR) may apply to the Court of Appeal for permission to appeal against a refusal of permission.
- Frank has been refused further leave to remain by the Home Office, as Frank is directly affected by the decision of the Home Office, he holds sufficient interest and can seek a Judicial Review of Home Office’s decision.
- Mike has been refused further leave to remain by Home Office, Mike’s roommate/ Charity working with immigrants wants to lodge a Judicial Review on behalf of Mike. The roommate and Charity will not be allowed to pursue a Judicial Review on behalf of Mike as they are not directly affected by the decision of Home Office.
Public Law Issue
Judicial Review is only available on the issues of Public law. Matters of private laws are dealt with differently and under private law’s procedural rules. For Judicial Review, the respondent must be a public body and rights at issue must be a public right.
However, there is an exception to the general rule, which is, where the case involves both Public and Private law elements and in particular where the Public Law Element is collateral (auxiliary/ additional) to the private law, a person can apply to seek a Judicial Review.
It is important to note that the matters of Public Policy are not for Judicial Review. The matters of Public policy are determined by the Government and not by the Judiciary.
- Mike is an employ of London University and he is made redundant or discharged from his duties unfairly. Mike cannot pursue a Judicial Review as the issue is not of a Public Law and is dealt with under private law of employment.
- Jones has applied to the local authority for accommodation and his application is refused and he is made homeless. Jones can apply for Judicial Review of the decision made by the Local Authority as it is a matter of Public Law
- Ali wants to live in the UK and extend his further leave to remain after the completion of five years. Government policy only allows for a stay of up to a maximum of five years. Ali cannot seek a Judicial review of the UK Government’s policy which restricts the maximum stay up to five years.
Generally, under Civil Procedure Rules 1998, an action under Judicial Review must be brought within a 3-month time period from the date when the actual decision was made. However, where there are shorter time periods specified in the statute, then Judicial Review must be lodged within that time frame.
The existence of Alternative Remedies
The availability of alternative remedies is an important factor in deciding whether Judicial Review will be allowed. As a general principle, a leave for Judicial review should not be granted where an alternative remedy is available.
The important point is if a right of appeal is granted with the decision, this right must be used first before seeking permission to apply for Judicial Review. However, in exceptional circumstances, a High Court may waive this condition and grant a leave to apply for Judicial Review
- Yasmin’s application for a work permit is refused by Home Office. However, she is given a right of appeal. Yasmin cannot apply for Judicial Review before considering and lodging the appeal.
- Yarba’s application and Appeal both have been refused, he can apply for Judicial Review as he has no other alternative remedy available
While every effort has been made to ensure the accuracy of the information provided in this article, it does not constitute legal advice and cannot be relied upon as such. Each legal case and issue may have unique facts and circumstances, as a result, legalally does not accept any responsibility for liabilities arising as a result of reliance upon the information provided. For further help and guidance, you can always rely on and seek advice from our experienced lawyers.
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