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Judicial Review Pre-action Protocol for South Africans

Before you go ahead with making an immigration judicial review claim, you need to follow certain procedures as outlined in the “pre-action protocol”. Here, you can find out all about this protocol and which steps you must take.

For assistance with a judicial review and the required pre-action protocol call IAS on 0333 414 9244 or complete the simple online enquiry form. We are highly experienced in all aspects of judicial reviews.

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What is judicial review pre-action protocol?

If you have a decision from a UK court that you are not allowed to appeal, an option open to you is judicial review which is a legal process whereby you can challenge the decision. However judicial review may not be appropriate in every instance and claimants are strongly advised to seek suitable legal advice when considering the judicial review route.

Before you can submit a judicial review, there is a pre-action protocol that must be followed. This protocol sets out the code of best practice and certain steps you need to take before you proceed with a judicial review claim. Find out more about these pre-action conduct rules on the Ministry of Justice’s site here.

The UK courts expect both sides to follow the pre-action protocol prior to proceeding to court action. The only exception is if the case is deemed to be urgent.

What if you fail to comply with the judicial review pre-action protocol?

The court takes into account if the parties have complied with the pre-action protocol when they make decisions such as orders for costs. If you therefore fail to comply with the pre-action rules you could be faced with punitive charges such as additional costs if you lose your case. Even if you win your case and are awarded costs, the amount you get could be reduced. Other sanctions for not following the protocol could also be imposed on the non-compliant party/parties.

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What is judicial review?

Judicial review is a legal process that is available in the High Court or in the Upper Tribunal Immigration and Asylum Chamber for immigration, nationality and asylum cases.

Judicial review can be claimed on the grounds of illegality, an unfair procedure, and an irrational decision. For example, judicial review can be used to challenge the failure to act of public bodies or government departments such as the Home Office or a local authority. It should be pursued only when there is no alternative remedy, such as an appeal.

The judicial review procedure is a complex process, and anyone who wishes to make such a claim is advised to refer to a solicitor.

Before commencing the judicial review process, certain pre-action steps must be taken by both parties, except in urgent cases.

Immigration judicial review

Immigration judicial review is the process of legally challenging a decision made in your immigration, asylum, or human rights application. In most cases, this decision is made by the Home Office, but it could also be a decision made by the first-tier Tribunal.

Note that the judicial review process will not determine if the decision in your case was right or wrong, but rather whether the process of reaching that decision was lawful or not.

If you want to challenge the validity of a decision there are different routes such as appealing or an administrative review. The judicial review route is usually taken when there is no such alternative route, in other words, it should be a last resort.

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What are the aims of pre-action protocols?

Judicial review pre-action protocol has several aims, as follows:

  • To clearly identify the issues in dispute
  • To share information and relevant documents
  • To help clarify whether and how to proceed with a judicial review claim
  • To promote out-of-court settlements in order to avoid unnecessary legal proceedings
  • To avoid or to limit legal costs
  • To help ensure court proceeding in an efficient manner, if a settlement cannot be reached

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pre-action protocol for judicial review

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Finding alternative dispute resolution (ADR) options

Judicial review is a last resort remedy, so it’s possible the court could ask both parties for evidence that alternative ways of resolving the dispute have been considered. Alternative dispute resolution (ADR) options can include:

  • Negotiating
  • Making an internal complaint
  • Referring to the Ombudsman
  • Mediation

Judicial review must be started no later than three months after the grounds for a claim first arise. It should be noted that taking alternative dispute resolution steps cannot be an excuse for not complying with this time limit. However, all efforts should be made to follow alternative dispute resolution (ADR) options in good time.

In the event that the parties need to submit a judicial review claim in order to comply with the time limit but are still not finished with the considerations of settlement or with narrowing down of the disputed issues, the parties could agree to stay (temporarily suspend) the proceedings. In this case, a joint application can be made to the court for such a direction.

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Pre-action requests for information and documents

The judicial review pre-action protocol permits the claimant to request pre-action disclosure in the form of information and documents from the other side.

The aim is for this information to enable the claimant to better understand how the decision being challenged was arrived at, and to be able to better determine the issues that will form the basis of the claim.

Any requests for information must only be for these purposes and need to be proportionate. Unless there are good reasons for not handing over such information, the defendant has a duty to comply with such requests providing they meet these requirements. In the event a defendant fails to provide the requested information, cost sanctions could be imposed on them. This is more likely where the failure to provide the information is in breach of statutory or common laws.

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Sending a letter before claim

If you decide you wish to go ahead with a judicial review, you must first send a “letter before claim” or “pre-action letter” to the defendant before submitting your claim.

The purpose of sending the “letter before claim” is to inform the defendant of the key facts of the case and the reasons for the decision to be challenged. The defendant can then amend or withdraw their decision if they wish. The defendant must inform the claimant of their response in a “letter of response“.

Standard format for “letter before claim”

In most cases, the “letter before claim” needs to conform to a standard format and must contain the following information:

  • The date and details of the decision
  • The act or omission being challenged
  • A summary of the key facts
  • What the legal basis for the claim is
  • The information and documents the claimant is seeking and why they are relevant to the claim
  • Details of the claimant
  • A request for a response from the defendant within a reasonable time limit (usually 14 days)

Immigration, nationality and asylum cases

In terms of immigration, nationality, and asylum cases, a form must be completed when sending a “letter of claim” to the Home Office with the following information:

  • Your personal information – name, date of birth etc
  • Details of your legal representative
  • Case reference numbers
  • Type of claim
  • Details of the challenge and the action you would like the Home Office to take
  • The information and documents you are requesting from the Home Office if any
  • Proposals for any alternative dispute resolution
  • A proposed date to receive a response, usually 14 days

In regard to the letter itself, you may use your own letter format.

It is strongly recommended that you obtain the assistance of an immigration lawyer with your letter of claim, as this must provide all of the information outlined in the pre-action protocol which can be complex.

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Defendant’s letter of response

In immigration pre-action protocol cases, the Home Office will usually respond to your pre-action protocol letter within 14 days.

If they do not adhere to the required timescale, they will need good reasons otherwise sanctions could be imposed. If the Home Office needs more time, they should provide an interim response. In this interim response, they should propose a date by which they will respond fully, and reasons for the delay. The extra time will not affect the time limit for making a judicial review claim.

The letter of response from the defendant (Home Office) should state if the defendant has conceded, conceded in part, or denied the claim. It should clearly explain what is and what is not being conceded, and the reasons why. It should also give a full explanation for the decision, and a timescale for the issuing of the new decision. Requested documentation should accompany the letter. Any claims or documents that cannot be addressed or provided must be fully explained as well.

You may proceed to submit a claim for judicial review to the Upper Tribunal Immigration and Asylum Chamber even if:

  • the Home Office does not respond to you within the proposed time limit
  • no interim letter is forthcoming
  • you are not satisfied with the response provided

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Urgent cases

Urgent judicial review cases do not need to follow the pre-action protocol. A couple of examples of urgent cases are:

  • Application for an injunction to stop your being imminently removed from the UK
  • Application to force a local authority to act where it has wrongly (unlawfully) refused to do so. An example of this is where a local housing authority has failed to provide interim accommodation for a homeless claimant

Note that even if the pre-action protocol does not need to be adhered to, the claimant must still alert the defendant of the impending claim. This can be done by telephone and/or by sending the draft claim form via email/fax.

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How our lawyers can help

A judicial review is not easy to navigate on one’s own, due to the complex, legalistic nature of the process. So it is usual to hire the assistance of a legal expert.

The IAS’s team of immigration lawyers is highly experienced in judicial review cases, including those that are very complex.

Here are some of the ways IAS can assist you with your judicial review. We will:

  • Clarify what needs to be done for the pre-action protocols
  • Help you request documents and information from the Home Office in line with what is permitted
  • Prepare and send your “letter before” claim on your behalf
  • Liaise with the Home Office to ascertain any alternative dispute resolution (ADR) options
  • Prepare your application for judicial review if legal proceedings are unavoidable
  • If your case is urgent, advise if the pre-action protocol applies

For more information about how we can help you with your pre-action protocol or the judicial review itself, contact us today on 0333 414 9244 (local rate) or complete our online enquiry form.

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Frequently Asked Questions

The UK courts expect parties to comply with judicial review pre-action protocol requirements. If your case is not urgent and you don’t follow the protocol, then this is taken into consideration by the court, and costly sanctions could be imposed.

The standard format can be found in Annex A on the government’s Pre-Action Protocol for Judicial Review webpage.

Likewise, the format for the defendant’s response can be found in Annex B.

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