- What is the Pre-action Protocol?
- What is a judicial review?
- Compliance with the pre-action protocol
- Considering and exploring ADR
- Right to request information and documents
- Letter before claim
- The letter of response
- How long does Pre Action Protocol take?
- How can Newcastle Immigration Lawyers help?
- Frequently Asked Questions
What is the Judicial Review Pre-action Protocol?
The pre-action protocol is a code of good practice and steps you should follow before making a judicial review claim.
If you don’t follow the pre-action protocol, that will be considered when your hearing at the Upper Tribunal occurs. As such, if you lose your case, you may be ordered to pay additional costs, and if you win, the additional costs will be deducted from any awarded costs because you did not follow the pre-action protocol. There may also be other sanctions.
The pre-action protocol aims to enable both parties to:
- Understand and identify the issues they are disputing and share information and relevant documents
- Make informed decisions on whether or not they will proceed, and if they do, how to proceed
- Reduce the issues or try out-of-court settlement
- Avoid unnecessary litigation costs or limit the costs
- Enable efficient management of the judicial review proceedings where court proceedings cannot be avoided
What is a judicial review?
Judicial review is typically the last resort a person with sufficient interest can take to challenge the lawfulness of decisions made by a public body, such as immigration authorities.
Suppose you believe the Home Office made an unlawful decision concerning your visa, citizenship or asylum application. In that case, you can get this legal remedy which is only available at the High court in the UK.
When you take a review in the court, you are challenging the way a decision was made by the Home Office or the First-Tier Tribunal concerning your permission to stay in the UK, deportation from the UK, or entry into the UK.
Claims for a judicial review are not for when you believe the decision was wrong, but rather that the process to reach the decision was unlawful. If you believe the decision was wrong, you may take an appeal or administrative review.
Before seeking permission for judicial review, you must follow the pre-action protocol correctly. We have discussed them on this page.
Compliance with the pre-action protocol
The court expects all parties to a case to have complied with the protocol when its use is appropriate. When giving directions for managing the case and ordering costs, the court will consider compliance or non-compliance with the protocol.
The exception to that rule is urgent cases. For emergency cases, the protocol will not be appropriate because you should make a claim immediately. Urgent cases include where:
- Directions have been set by the authorities to remove you from the UK.
- There is an urgent need for an order to compel a public body to act where it has refused to unlawfully, such as failure of a housing authority to secure interim accommodation for a homeless person making a claim.
Although you may be able not to use the pre-action protocol in urgent cases, it’s good to let the local authority or other party know that you are planning court intervention telephone call, or sending the draft claim form that the claimant intends to file through email or fax.
Considering and Finding Alternative Dispute Resolution (ADR)
A review at the court is a last resort when there is no adequate alternative remedy. As a result, you must consider whether some alternative dispute resolution or procedure will solve the case rather than litigation as your first choice.
All interested parties must agree to the adopted ADR and consider the process of that interim remedy because they may be required to provide evidence that they tried the alternative means to resolve the issue.
Here are some alternative ways to resolve the dispute that parties may explore:
- Discussion and negotiation
- Employing public authority complaints or review procedures that are relevant to your case
If any of the parties refuse to participate in ADR or did not respond when invited to participate through ADR proposals, the court might see that action as unreasonable and put it into consideration when determining costs. In that case, the court may order the party that refused or did not respond to pay additional costs.
Please note that when exploring an ADR, you must be conscious of the time limits. The court expects that your judicial review application is started no later than three months after the issue that led to the claim first arose. Using an ADR cannot stand as an excuse for not meeting the proposed time limit.
Right to request information and documents at the pre-action stage
As an interested party, when planning a review claim, you may need some information and relevant documents from the defending authority.
The pre-action protocol covers your right to request any necessary information and documents to help you understand why the decision you are challenging was taken. You can also request information and documents to enable you to present the issues properly in the application to the court.
You must not request information outside the above purposes. As discussed above, the pre-action protocol only protects your right to information within the context of what is necessary to your case.
Suppose the public authority (defendant) fails to provide the information or relevant documentation requested without good reason, especially where the failure breaches a statutory or common law requirement. In that case, the court may impose costs sanctions on the defendant.
The pre-action stage and issuing proceedings can be confusing. You must know the civil procedure rules and legal process and follow them as stated in the pre-action protocol.
If you are considering starting a claim for judicial review, get in touch with us for legal advice and support. Call 0191 303 8965 or contact us online.
Sending a letter before claim
When you have decided that you will make a claim, you must send a letter to the proposed defendant. This letter is called a “letter before claim”.
The reason for the letter is to identify all the issues in dispute and establish whether they can be reduced or solved without resorting to court proceedings.
The letter before claim should have:
- The date and details of the decision you are disputing
- Act or omission you are challenging
- A clear summary of the facts and legal basis for the claim
- Details of any interested parties making a claim
- Details of any information you are seeking from the defendant and why that information is important
- A request for a reply from the defendant with a proposed reply date of at least 14 days
When you have sent the letter, do not begin your claim until the proposed reply date in the letter has passed, which is why you should send the letter in good time to enable enough time for a response. The exception to that is the claims are urgent.
The Home Office has a standard form that you can fill for immigration, nationality, and asylum cases. You can use that form instead of a letter before claim.
The letter of response
After sending your letter before the claim, you must wait for a response before seeking judicial review. That response will come in a “letter of response”.
Defendants should typically send a response to interested parties identified in the letter before claim within 14 days using a standardised form detailed in the pre-action protocol. The defendant’s response should clearly explain if they are conceding, conceding in part, or denying your claim.
Unless there’s a good reason, the court will take the Home Office’s failure to respond substantively to the letter before claim into account, and the court may impose sanctions.
Suppose it isn’t possible to get back to you within the time proposed in your letter before claim. In that case, it is good practice to send an interim reply from the Home Office proposing a reasonable extension with a set date and providing reasons why they need more time.
If you receive such an extension request, send a response stating whether you agree, think an extension is unreasonable, or need additional information. Note that an extension of any kind will not affect the time limit that concerns starting a subsequent claim at the court.
You can start a claim if the Home Office doesn’t respond to your letter before claim or you are unsatisfied with the response they provided. You can submit an application to the Upper Tribunal (Immigration and Asylum) Chamber in such a case.
How long does Pre Action Protocol take?
There is no set time that a pre-action protocol must take; the time depending on the individual case and circumstances of the parties involved.
However, a reasonable time is 14 days to give enough time limit for a letter of response from when a letter before claim is sent. Also, your review at the court must be brought promptly. A clear timescale is at most three months after the issue connected to the claim arose, so the pre-action protocol is done before the time limit elapses.
Immigration issues can be difficult to navigate alone. Therefore, it is highly recommended that you get assistance from immigration lawyers who understand the UK justice and immigration system.
Newcastle Immigration Lawyers are experts in immigration law, civic procedure rules, and judicial review issues. We can help you with your case to ensure that your review at the high court follows the right steps to prevent delays or unnecessary costs.
Here are a few ways we can assist you:
- Answering any questions about pre-action protocols
- Assessing your situation to see if you are likely to get a positive result from alternative methods
- Requesting information and documents from the Home Office on your behalf
- Discussing with the Home Office on your behalf concerning alternative methods to resolve the dispute
- Helping you prepare your letter of claim
- Sending your letter of claim to the Home Office
- Preparing your application to the Upper Tribunal (Immigration and Asylum) Chamber
- Providing advice on your options if your case is urgent
Last modified on September 24th, 2021 at 10:09 am
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You may seek judicial review on the grounds of illegality, an unfair procedure, and an irrational decision. In addition, you should only seek a review when there is no alternative remedy, such as an appeal.
If you are not sure if a legal review is appropriate or your circumstance, we strongly advise that you reach out to us for support and advice before you go for a claim.
The pre-action protocol for judicial review are steps parties must take before a claim for judicial review is made at the court. They include:
- Discussing and exploring alternative dispute resolution methods
- Sending a letter of claim
- Receiving a letter of response
It also covers the right to information and documents and compliance with all aspects of the claim.
You are a litigant in person if you do not have a legal representative for the judicial review. If this is your situation, the Home Office is to include a copy of the Pre-action protocol with their letter of response, which they are to send to you and other parties listed as claimants in your letter of claim.