Updated guide is required reading for all those who conduct judicial review
The Courts and Tribunals Judiciary has today published the 2024 edition of the Administrative Court Judicial Review Guide.
Image credit: UK GovernmentThe guide covers all the stages of a claim for judicial review, and the Courts and Tribunals Judiciary notes that it is required reading for all those who conduct judicial review cases (whether or not they are lawyers).
You can download the 250-page guide here from the Courts and Tribunals Judiciary website.
For ease of reference, we've excerpted and reproduced some sections of the guide below that are particularly relevant to immigration and asylum law. They are:
- Section 6.5 Judicial review of immigration decisions and decisions on claims for asylum
- Section 16.8 Removal cases
- Annex 8 Judicial Review in the Upper Tribunal
As the guide highlights, the Upper Tribunal continues to undertake a significant number of judicial review cases. Annex 8 contains important information about its jurisdiction, with a particular emphasis on immigration cases.
The Administrative Court
Judicial Review Guide 2024
October 2024
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6.5 Judicial review of immigration decisions and decisions on claims for asylum
6.5.1 Since 1 November 2013, the Upper Tribunal (Immigration and Asylum Chamber) ("UTIAC"), and not the Administrative Court, has been the appropriate jurisdiction for starting a judicial review in the majority of decisions relating to immigration and asylum (see Annex 1 for UTIAC contact details).
6.5.2 The Lord Chief Justice's Direction requires that any application for permission to apply for judicial review and any substantive application for judicial review must be started in UTIAC (or if started in the Administrative Court must be transferred to UTIAC) if it challenges: [83]
6.5.2.1 a decision made under the Immigration Acts or any instrument having effect, whether wholly or partly, under an enactment within the Immigration Acts, or otherwise relating to leave to enter or remain in the UK. The Immigration Acts are Immigration Act 1971, Immigration Act 1988, Asylum and Immigration Appeals Act 1993, Asylum and Immigration Act 1996, Immigration and Asylum Act 1999, Nationality, Immigration and Asylum Act 2002, Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, Immigration, Asylum and Nationality Act 2006, UK Borders Act 2007, Immigration Act 2014 and Immigration Act 2016; or
6.5.2.2 a decision of the Immigration and Asylum Chamber of the First-tier Tribunal, from which no appeal lies to the Upper Tribunal.
6.5.3 All other immigration and asylum matters remain within the jurisdiction of the Administrative Court. [84] Further, even where an application comes within the classes of claim outlined at para 6.5.2 above, an application which comprises or includes any of the following must be brought in the Administrative Court:
6.5.3.1 a challenge to the validity of primary or subordinate legislation (or of immigration rules);
6.5.3.2 a challenge to the lawfulness of detention;
6.5.3.3 a challenge to a decision concerning inclusion on the register of licensed Sponsors maintained by the UKBA;
6.5.3.4 a challenge to a decision which determines British citizenship;
6.5.3.5 a challenge to a decision relating to asylum support or accommodation;
6.5.3.6 a challenge to the decision of the Upper Tribunal;
6.5.3.7 a challenge to a decision of the Special Immigration Appeals Commission;
6.5.3.8 an application for a declaration of incompatibility under section 4 of the Human Rights Act 1998; and
6.5.3.9 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.
6.5.4 Challenges to decisions made under the National Referral Mechanism for identifying victims of human trafficking or modern slavery [85] are not immigration decisions. They fall within the jurisdiction of the Administrative Court.
6.5.5 Annex 8 contains further information about judicial review in the Upper Tribunal and the UTIAC in particular.
6.5.6 Whether, pursuant to the Direction made by the Lord Chief Justice, a claim falls within the jurisdiction of UTIAC or the Administrative Court is determined as a matter of substance, not form. For example, issuing a claim in the Administrative Court on the basis that it falls within the unlawful detention exception to UTIAC's jurisdiction may amount to an abuse of process where there is no obvious merit to the detention claim. [86]
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16.8.1 Particular rules apply where a decision by UK Visas and Immigration ("UKVI") to remove a person from the jurisdiction is challenged before the removal takes effect. These are set out in section 2 of CPR 54A PD. Such challenges generally fall within the jurisdiction of UTIAC: see para 6.5 of this Guide.
16.8.2 A person who makes an application for permission to apply for judicial review of such a decision must:
16.8.2.1 file a Claim Form and a copy at Court; [351] and
16.8.2.2 indicate on the face of the Claim Form that section 2 of CPR 54A PD applies (which can be done by ticking the relevant box in section 4 of the Claim Form). [352]
16.8.3 The Claim Form must:
16.8.3.1 be accompanied by a copy of the removal directions, the decision to which the application relates and any document served with the removal directions (including any document which contains UK Visas and Immigration's ("UKVI") factual summary of the case); [353]
16.8.3.2 contain or be accompanied by a clear and concise statement of the claimant's grounds for bringing the claim for judicial review; [354]
16.8.3.3 state the claimant's Home Office reference number. [355]
16.8.4 If the claimant is unable to comply with any of the requirements in para 16.8.3, the Claim Form must contain or be accompanied by a statement of the reasons why. [356]
16.8.5 Immediately upon issue, copies of the issued Claim Form and accompanying documents must be sent to the address specified by UKVI. [357] It must also be served on the defendant within 7 days of the date of issue. [358]
16.8.6 The Court has set out certain principles to be applied when such applications are made. [359] In particular:
16.8.6.1 steps to challenge removal should be taken as early as possible, and should be taken promptly after receipt of notice of a removal window; and
16.8.6.2 applications to the Court for interim relief should be made with as much notice to the Secretary of State as is practicably feasible.
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Annex 8 – Judicial Review in the Upper Tribunal
A8.1 The Upper Tribunal's Judicial Review Jurisdiction
A8.1.1 The Upper Tribunal's judicial review jurisdiction is conferred by section 15 of the Tribunals, Courts and Enforcement Act 2007 ("TCEA"). The existence of the jurisdiction depends upon certain conditions being met, as explained in section 18 of the TCEA.
A8.1.2 The UT has power to grant a mandatory, prohibiting or quashing order, a declaration and an injunction. Relief granted by the UT has the same effect as corresponding relief granted by the High Court and is enforceable as if it were relief granted by that Court. In deciding whether to grant relief the UT must apply the same principles that the High Court would apply in deciding whether to grant relief on an application for judicial review.
A8.1.3 Like the position in the High Court, section 16 of the TCEA provides that an application for judicial review may be made only if the applicant has obtained permission. Section 16 also contains provisions in the same terms as section 31(2A) of the Senior Courts Act 1981, restricting the grant of relief where the UT considers it highly likely the outcome would not have been substantially different even if the conduct complained of had not occurred. [584]
A8.2 Transfers of Judicial Review Applications
A8.2.1 As explained at para 6.5 of the Guide, the effect of the Lord Chief Justice's Direction is that most applications for judicial review of immigration (and asylum) decisions are filed in the Upper Tribunal (Immigration and Asylum Chamber) ("UT(IAC)") and, if filed in the High Court, must be transferred to the UT(IAC). If an application is made to the UT(IAC) for judicial review of a decision that is not covered by the Direction, or which is specifically exempted by it (see 6.5.3), then, subject to what is said in the following para, the UT(IAC) must transfer the application to the High Court. [585]
A8.2.2 If certain conditions specified in section 31A(4) and (5) of the Senior Courts Act 1981 are met, the High Court may by order transfer [a judicial review application] to the Upper Tribunal if it appears to the High Court to be just and convenient to do so". [586] This power is routinely exercised in order to transfer to the UT(IAC) a judicial review made by a person who claims to be a minor from outside the United Kingdom, challenging a local authority's assessment of that person's age.
A8.2.3 The UT has power to permit or require an amendment which, if made, would give rise to an obligation to transfer the proceedings to the High Court. Except with the permission of the UT, additional grounds may not be advanced if they would give rise to an obligation to transfer. The UT therefore has power to decide whether to retain jurisdiction over the judicial review application. If the judicial review application has been transferred to the UT by the High Court under that Court's power of transfer, and the amendment or additional grounds would not have prevented the High Court from exercising that power, if the amendment or grounds had been in place prior to transfer, then the UT will transfer the application back to the High Court only if the UT considers it just and convenient to do so. [587]
A8.3 Out of Hours Applications
A8.3.1 The out of hours procedure described in para 17.1 of the Guide applies to urgent applications in immigration judicial review proceedings that cannot wait until the next working day. For this purpose, the out of hours High Court judge sits as a judge of the UT.
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© Crown copyright 2024
This publication is licensed under the terms of the Open Government Licence v3.0 except where otherwise stated. To view this licence, visit nationalarchives.gov.uk/doc/ open-government-licence/version/3
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[83] Courts and Tribunals Judiciary, Lord Chief Justice's Direction Regarding the Transfer of Immigration and Asylum Judicial Review Cases to the Upper Tribunal (Immigration and Asylum Chamber). Available at: www.judiciary.uk/guidance-and-resources/lord-chief-justices-direction- regarding-the-transfer-of-immigration-and-asylum-judicial-review-cases-to-the-upper-tribunal- immigration-and-asylum-chamber
[84] See para 6.5.4 of this Guide for an example.
[85] Home Office, National referral mechanism guidance: adult (England and Wales), 2024. Available at: www.gov.uk/government/publications/human-trafficking-victims-referral-and-assessment- forms/guidance-on-the-national-referral-mechanism-for-potential-adult-victims-of-modern- slavery-england-and-wales
[86] See R (Ashraf) v Secretary of State for the Home Department [2013] EWHC 4028 (Admin).
[351] CPR 54A PD para 17.2(1).
[352] CPR 54A PD para 17.2(1)(a).
[353] CPR 54A PD para 17.2(1)(b).
[354] CPR 54A PD para 17.2(1)(c).
[355] CPR 54A PD para 17.2(1)(d).
[356] CPR 54A PD para 17.2(1).
[357] CPR 54A PD para 17.2(2).
[359] R (Madan) v Secretary of State for the Home Department (Practice Note) [2007] EWCA Civ 770, [2007] 1 WLR 2891, endorsed in R (SB (Afghanistan)) v Secretary of State for the Home Department [2018] EWCA Civ 215, [2018] 1 WLR 4457, [55]-[56].
[584] See para 12.10 of this Guide.
[585] Section 18(3) of the Tribunals, Courts and Enforcement Act 2007.
[587] Rule 33A of the Tribunal Procedure (Upper Tribunal) Rules 2008.