Appeals / Judicial Review - Legend Solicitors

Appeals / Judicial Review

If you are applying from inside the United Kingdom, your right to an appeal and the process you need to follow will depend on the type of application you have made.

UK Border Agency only accepts appeals from those applying inside the United Kingdom (also known as ‘in-country’), who have a statutory right of appeal.

If we refuse your application to extend your stay in the United Kingdom, you may have the right to appeal. We will send you a letter informing you of our decision. This is called your ‘Notice of Immigration Decision‘ which will explain your appeal rights.

If you have a right of appeal you will be provided with full details of your rights and an appeal form that you will need to fill in and return.

Administrative Review

What is Administrative Review?

  1. Administrative Review is the mechanism for reviewing refusal decisions made under the Points Based System where an applicant believes an error has been made in the decision. The Administrative Review is free of charge.
  2. Administrative Review is an entitlement but the request must be made within 28 days from the date the refusal notice is received by the applicant. For time limits for making a request, see further paragraphs 6 and 7 below.
  3. Administrative Review is a non-statutory scheme; that is there is no legislation setting out what it covers or who is eligible to apply. The policy is contained in this guidance.

Who can Apply for Administrative Review?

Anyone refused entry clearance under Points Based System, where they believe the Entry Clearance Officer has made an incorrect decision.

How does the Applicant Apply?

The applicant will receive the Administrative Review Request Notice with the entry clearance refusal notice. The applicant must complete the Request Notice in full and send it directly to the address stated on the Request Notice.Applicants must not send any additional documents such as passport or supporting documents with the Administrative Review request notice. If the refusal is subsequently overturned, the applicant will be asked to send in their passport.

What is the Deadline for Applying for Administrative Review?

The applicant has 28 days from the date of receipt of the refusal notice, to submit a request for Administrative Review

Judicial Review

What is a Judicial Review?

Judicial review is a high court procedure where the judge reviews and possibly challenges how a decision is made by a public authority. A judicial review may only take place provided the following two criteria are both met:

  • There are no other routes of challenging a decision made such as no right of appeal.
  • The judicial review principles identify the decision as unlawful.

How Do I Know if I Can Apply for a Judicial Review?

You may apply for a judicial review on the following conditions:

  • An application must be made within three months from the date of the decision in question.

In a judicial review, intervention by a court may occur in a decision if it does not follow legislation, immigration rules and human rights. In addition to this if decision maker fails to be procedurally fair or if the matters spoken about are not mentioned or are irrelevant, the court may intervene.

Please note that a successful judicial review does not mean the initial decision in question is changed. It just means that it will be deemed unlawful and will be lawful and legally reconsidered by the public authority.

Benefits of a Judicial Review

The benefits of a judicial review are the following:

  • A successful judicial review means lawful and legal reconsideration of the decision in question by the public authority.
  • A quick resolution.
  • An alternative route of challenge where no right of appeal may have been in place.

Judicial Review of Immigration Decision in the UK

On the 14th May 2014, the Immigration Bill which was produced by the UK government in October 2013 became law. Important changes have been brought up by this Act such as the right of appeal being reduced. This is an important change as it adds more significance on the judicial review.

UK Immigration Law – Appeal Rights under the Immigration Act

The Immigration Act removes 17 previous rights of appeal. The four remaining grounds of appeal are categorised under asylum and human right issues. In addition to this the Immigration Act removes the right to appeal for decisions made under the Immigration rules. Furthermore, should a decision be not in accordance with the law, the Immigration Act removes the grounds of appeal.

Overstayers and Judicial Review

Previously, no rights of appeal were permitted to foreign overstayers who applied to remain in the UK based on the fact that they had a family and residence. Fortunately under the Immigration Act foreign over-stayers are now allowed to make a human rights claim. Should this claim be refused, a human rights appeal may be applied.

Foreign Criminals and Judicial Review

Foreign criminals rely mostly on human rights to resist removal so the Immigration Act does not bring many changes tot hen. However the Immigration Act has minimised the ways of recourse and appeal. This means that many foreign criminals will no longer be able to use appeals as a way of stopping their removal from the UK.

Judicial review allows people with ‘sufficient interest’ to ask a judge to review:

  • An action;
  • A failure to act; or
  • A decision;

by person carrying out a ‘public function’.

Sufficient Interest means:

  • They are affected by it;
  • There is no better person who could challenge
  • There is substance in the challenge.

When can a Claimant Use Judicial Review?

  • Where there is a limited right of appeal.
  • Where all opportunities to appeal have already been used.

Where claimants have not used other available options a judge may refuse to hear their judicial review case. Where other options exist judicial review may not be the most suitable way of dealing with a problem.

Judicial review does not allow claimants to ask a judge to decide whether a decision was correct. It only allows claimants to put right an illegal, improper or irrational situation. The usual outcome of a successful claim would be for the case to be returned to the AIT or the decision maker for reconsideration.

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