12 December 2018
12 December 2018
This Factsheet looks at judicial review in relation to asylum support. Updated 12 Dec 2018.
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Judicial review is the process by which the courts supervise the actions of government bodies which make decision affecting the public, such as the Home Office (HO) and the First-tier Tribunal (Asylum Support) (AST). Judicial review generally looks at the process that was followed to come to a decision rather than the merits of the decision itself. A person must exhaust any available appeal process before seeking a judicial review.
In the context of asylum support, many (but not all) HO decisions attract a right of appeal to the AST. The following decisions are not appealable and judicial review would be the only legal remedyIn some situations it might be appropriate to use a complaints procedure before using judicial review:-
In the event of the AST making an unlawful decision, there is no Upper Tribunal to appeal to (unlike the majority of other first tier tribunals). Therefore the only remedy is a judicial review of the AST’s decision, and both parties (the HO and the asylum-seeker) can take this action. These judicial reviews are very rare.
Judicial review is governed by the Senior Courts Act 1981 (s31) and Rule 54 Civil Procedure Rules (CPR) and takes place in the High Court. Applications must start as soon as possible and within 3 months from the date the grounds for an application for judicial review arose. So, if the AST potentially unlawfully dismisses an appeal, the decision must be challenged within 3 months of the date the hearing, or, at the very latest, within 3 months of the date the Statement of Reasons are sent out. Statements of Reasons contain the date of the hearing in the 1st paragraph. They have to be sent to appellants within 3 working days of the date of the appeal.The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, last updated 21/8/15 rule 34(1)(a)
A potential claimant will need a specialist asylum support/public law/community care legal aid solicitor. Judicial reviews, in the field of asylum, immigration and asylum support, carried out by ‘litigants in person’, are very unlikely to be successful. Once proceedings are issued, the first stage is to seek ‘permission’ to proceed, which is when the court checks that there is sufficient merit in the claimant’s case.
The traditional grounds for judicial review are irrationality, illegality and procedural impropriety. The European Convention of Human Rights (ECHR), embedded in UK law by the Human Rights Act 1998, has widened the potential grounds for judicial review and is very relevant in asylum support law.
The overwhelming majority of judicial reviews settle and therefore do not result in a judgment. However, if there is judgment, it will be binding on the AST. The following are the most important:-