Step-By-Step Guide for Judicial Review

Format of Substantive Hearing

The Court will decide how the hearing should proceed.

Most hearings follow the following sequence:

  • The claimant will speak first setting out the arguments in support of the grounds of claim
  • The defendant will speak second setting out the arguments in support of the grounds of defence
  • Any interested parties and/or interveners will speak third to support, contest, or clarify anything that has been said; and
  • The claimant will have a right to reply to the other parties’ submissions.

Judicial Review (Without a Hearing)

If all parties agree, the substantive consideration may take place without a hearing, and the judge will decide the claim by considering the papers alone. The parties should inform the Administrative Court Office in writing if all parties have agreed to this course of action. The judge, has a discretion and on consideration of the papers, may refuse to make a decision on the papers and order an oral hearing

Judgment and Orders

When the hearing is concluded the Court will usually give judgment in one of two ways:

  • Orally, then and there, or sometimes after a short adjournment (‘ex tempore’ judgment)
  • The Court may give judgment in writing sometime after the hearing (‘reserved’ judgment)

Urgent Hearing and Out of Hour Contact Telephone Number

  • For urgent hearing, the application N463 Application form must be used
  • the acting barrister or solicitors should telephone 0207 947 6000166 and speak to the Queen’s Bench Division out of hours duty clerk.
  • The out of hours judge may deal with the application on paper. Or especially in cases of immigration the out of hours judge may telephone the representatives acting for the claimant to enable them to make their submissions orally before deciding the application.
  • The representatives will be required to provide a telephone number on which they can be reached. The out of hours judge may also telephone any other party to the application if he or she considers that to be appropriate (this is often done in immigration cases where the application seeks a stay on removal).

Important

The out of hours service is not available to litigants in person.

Cost Implication

  • The most important factor when a person wants to apply for Judicial review is cost which if the person loses he may have to pay. The issue of cost becomes more relevant in cases of Immigration matters, where if a claimant loses his case he may have to pay the cost of Home Office, and until he pays that cost, such person is not allowed to apply for any further leave to remain.
  • The cost could easily be around thousands. Although, the Court has a discretion as to whether costs are payable by one party to another, there are provisions which guide this discretion.
  • Where the Court decides to make an order for costs, the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party, subject to the abovementioned discretion of the Court.
  • It is important to seek for legal advice in the cases of Judicial Review as the cost may have a huge implication on the case.

Judicial Review Under Immigration Law

For Immigration matter the appropriate court is the Upper Tribunal (Immigration and Asylum Chamber)

Most cases under Leave to enter or remain are dealt by Immigration and Asylum Chamber)

The following cases for Judicial Review are dealt by Administrative courts

  • A challenge to the validity of primary or subordinate legislation (or of immigration rules);
  • A challenge to the lawfulness of detention;
  • A challenge to a decision concerning inclusion on the register of licensed Sponsors maintained by the UKBA;
  • A challenge to a decision as which determines British citizenship;
  • A challenge to a decision relating to asylum support or accommodation;
  • A challenge to the decision of the Upper Tribunal;
  • A challenge to a decision of the Special Immigration Appeals Commission; and
  • An application for a declaration of incompatibility under the s.4 of the Human Rights Act 1998.
  • A challenge to a decision which is certified (or otherwise stated in writing) to have been taken by the Secretary of State wholly or partly in reliance on information which it is considered should not be made public in the interests of national security.
  • Challenges to decisions made under the National Referral Mechanism for identifying victims of human trafficking or modern slavery47 are not immigration decisions. They fall within the jurisdiction of the Administrative Court.

Step 1

Following procedure should be followed to apply for a Judicial Review.

  • The applicant must have exhausted all other remedies available to him first before seeking for a judicial review. It must be used as a last resort.
  • The applicant must satisfy the pre-action protocol in appropriate cases. Under pre-action protocol the claimant must follow the steps which they have to follow before the start of proceedings in the court
  • Application must be filled and lodged within the specified time period which is normally 3 Months (please refer to step 1)

Step 2

  • Where pre-action protocol applies, the claimant must send a letter to defendant, which in case of immigration will be to Secretary of State or other responding body in cases of Housing or any other public law body
  • The letter must clearly state and identify the legal issues in the dispute and the claimant must also seek to establish whether litigation can be avoided

Step 3

  • The claimant has to wait for the response of the concerned public body. The concerned body will analyze the legal issue raised in the letter (step 2) and make its decision either to proceed with court hearing or settle the dispute at this stage.

Judicial Review is a two-stage process after step 3

Step 4 (Stage 1 - Permission of Apply for JR)

  • Where the responding public body (Home Office, Local Council, or any other public Body) has decided to take the case to the court and defend its decision. The claimant must apply to the court for the Permission to apply for Judicial Review.
  • The Judicial Review must be applied to High Court including, Queens Bench, Family and Chancery Division
  • Forms for permission are attached here. N461 form must be filled for a claim in the above-mentioned Courts (Administrative Courts)
  • For Planning Court, the form is N461 (PC)
  • The Civil Procedure Rules also apply to Self-Representing Litigants as well
  • For Urgent Judicial Review N64 form must be used

Documents Required at the stage of permission

  • A detailed statement of grounds
  • A statement of Facts (on which the case is relied on)
  • Any written evidence which may support the claim
  • A copy of the order which a claimant would like to set aside, these documents must be served on the defendant or any other body who may have interest in the claim

Step 5 (Hearing for permission)

  • Generally, this is paper hearing where the judge makes a decision on the evidence provided along with claim for and applicant does not have to attend the court.
  • Where the permission is granted the claimant can seek for oral Hearing within 7 days of the decision
  • In cases Where the permission is refused the applicant has a right to apply to court of Appeal against the refusal

Step 6 (Stage 2 - Hearing Stage)

  • Where a claimant is given a permission, the court will direct the parties and provide them with case management directions as how the parties have to prepare for the final hearing.
  • The claimant has to file and serve a detailed response and evidence
  • The claimant will prepare the trial Bundle and Skeleton Arguments

Step 7 (Substantive Hearing)

Practical Guidance for Self-Representing litigants on the day of Hearing

  • It is very important that litigants in person give copies of any written document which sets out their arguments (known as a “skeleton argument”) which they intend to rely on, and any other material (for example, reports of cases) in support of their arguments, to the Court and to their opponents in good time before the hearing.
  • Litigants in person should familiarise themselves with the rules about skeleton arguments which are given below
  • If they do not follow these rules, the Court may refuse to hear the case, or may adjourn the case to allow the other party or parties proper time to consider and respond to the late skeleton or material, in which case the litigant in person may be ordered to pay the costs incurred by the adjournment.
  • Litigants in person should identify in advance of the hearing the points which they consider to be their strongest points, and they should put those points first in their skeleton argument and in any oral submissions to the Court.
  • At the hearing, the litigant in person will be asked to give their name(s) to the usher or incourt support staff if they have not already done so.
  • The case name will be called out by the court staff. The hearing will then begin.
  • At the hearing, the claimant usually speaks first, then the defendant speaks, and then the claimant has an opportunity to comment on what the defendant has said. Sometimes the judge may think it is sensible, depending on the circumstances, to vary that order and, for example, let the defendant speak first.
  • At the hearing, the judge may make allowances for any litigant in person, recognising the difficulties that person faces in presenting his or her own claim. The judge will allow the litigant in person to explain his or her case in a way that is fair to that person.
  • The judge may ask questions.
  • Any other party in court, represented or not, will also have an opportunity to make submissions to the judge. At the end of the hearing, the judge will usually give a ruling, which may be short. The judge will explain the order he or she makes.
  • Representatives for other parties should also explain the court’s order after the hearing if the litigant in person wants further explanation.

Help by Personal Support Unit on the day of Hearing

  • It is important to note that on the day of hearing or at any stage neither the court staff nor the judges are in a position to give advice about the conduct of a claim.
  • The Personal Support Unit (“PSU”) is a free and independent service based in a number of court buildings which support litigants going through the court process without legal representation.
  • The PSU do not give legal advice and will not represent a litigant, but will assist by taking notes, discussing the workings of the court process, and providing assistance with forms.
  • There are PSUs in each of the court centres in which the majority of judicial reviews are heard (Birmingham Civil Justice Centre, Bristol Civil Justice Centre, Cardiff Civil Justice Centre, Leeds Combined Court Centre, Manchester Civil Justice Centre, and the Royal Courts of Justice in London) as well as some other court buildings.

Step 8

Where a claimant is not happy with the decision of the administrative court, he can seek for permission to appeal from the court and can apply to Court of Appeal.

Common forms used for Judicial Review

Judicial Review Forms for Administrative and Planning Courts

N461 – Judicial Review claim form

N461(PC) – General Judicial Review claim form (Planning Court)

N462 – Judicial Review acknowledgment of service

N462(PC) – Judicial Review acknowledgement of service (Planning Court)

N463 – Judicial Review application for urgent consideration

N463(PC) – Judicial Review application for urgent consideration (Planning Court)

N215 – Certificate of service

N244 – Application notice

N260 – Statement of costs (Summary Assessment)

N279 – Notice of discontinuance

N434 – Notice of change of legal representative

Judicial Review is always on the Point of law and it is a complex area of law, it is advisable that one must consider a legal help from an experienced immigration lawyer.

Disclaimer

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.