Administrative Review — Correcting Home Office Errors
Administrative review (AR) is available where a Home Office caseworking decision contains a specific caseworking error. It is not a full reconsideration of the application — the reviewer checks only whether the original caseworker made a defined error. AR is available for:
Grounds of AR are limited to: incorrect consideration of the application, failure to apply the correct policy, failure to consider relevant evidence, or a mathematical error. A solicitor identifies the precise caseworking error in the refusal letter and drafts grounds that the reviewer can act on.
Judicial Review — The Public Law Challenge
Judicial review (JR) is a challenge to the lawfulness of a public authority's decision — not its merits. An immigration judge on a JR does not substitute their view for the Home Office's view; they ask whether the Home Office acted within the law. Grounds of review:
The Judicial Review Process
- 1Pre-action protocol letter — a letter before action sent to the Home Office setting out the grounds of challenge and inviting a response within 14 days. Judicial review without a pre-action letter can result in a costs order. A solicitor drafts the letter and handles the response.
- 2Claim form (UT1 or N461) — the judicial review claim is issued in the Upper Tribunal (UTIAC) for most immigration JRs, or the Administrative Court for others. The claim must be issued within 3 months of the date of the decision (and promptly). A duty judge application for a stay of removal can be made at the same time.
- 3Permission stage — a judge considers the written grounds and supporting evidence on the papers. If permission is granted, the case proceeds to a full hearing. If refused, the claimant can renew orally before a judge. A solicitor prepares the statement of facts and grounds and the supporting evidence bundle.
- 4Full hearing — the Upper Tribunal or Administrative Court hears oral argument. Remedies include quashing the decision (requiring the Home Office to decide again), a mandatory order (requiring the Home Office to take a specific action), and declarations of unlawfulness. Damages are available in limited circumstances.
Frequently Asked Questions
Is judicial review available for all immigration decisions?
No. Judicial review is the remedy of last resort — where no other adequate remedy exists. Where a statutory right of appeal exists (such as an asylum or human rights appeal to the First-tier Tribunal), judicial review is not available as an alternative. However, JR is available for: decisions not subject to a statutory appeal, decisions to certify an asylum claim as clearly unfounded (preventing an in-country appeal), decisions to detain, and the conduct of the Home Office during the decision-making process.
Can I remain in the UK while judicial review proceedings are pending?
Filing a judicial review claim does not automatically stay any removal directions. A specific application for a stay of removal must be made — either through the duty judge at the Upper Tribunal (for urgent cases) or as part of the permission application. The court may grant a stay if there is an arguable case and the balance of convenience favours it. A solicitor makes the urgent stay application at the same time as filing the JR claim.
What is the pre-action protocol for immigration judicial review?
Before issuing a judicial review claim against the Home Office, the claimant must send a pre-action protocol letter setting out the grounds of challenge, the decision being challenged, and the remedy sought, and giving the Home Office 14 days to respond. The Home Office's response (or failure to respond) informs whether to proceed to issue the claim. Failure to send the letter can result in a costs order against the claimant even if the JR succeeds.
Is legal aid available for judicial review?
Legal aid is available for immigration judicial review for those who pass a means test and whose case has sufficient merit and proportionality. A legally aided solicitor can conduct the pre-action protocol, issue the JR claim, and represent the client at the permission and full hearing stages. Legal aid is available from a solicitor with a public law immigration legal aid contract.
What can the court order if judicial review succeeds?
If the Home Office decision is quashed (nullified), the matter is remitted to the Home Office to make a fresh decision applying the correct legal test. The court does not substitute its own decision for the Home Office's — it requires the Home Office to decide again lawfully. In cases involving delay, the court can make a mandatory order requiring the Home Office to make a decision by a specific date. Declarations of incompatibility with the Human Rights Act can also be made.