Pre-action Protocol for 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.

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.

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
• Mediation
• Ombudsmen

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.

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.

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.

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.

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.