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So, when is a decision unlawful…?

The Home Office may be acting unlawfully if it has made a decision, done something or ultimately omitted to do something;

-Without the legal power to do so (illegality)

-So unreasonable that no other reasonable decision maker could have come to the same decision or done the same thing.

-Unlawful on the grounds of incorrect procedure and fairness

-In breach of European Community law or The Human Rights Act.

Example cases where the Home Office has acted unlawfully is particularly when the home office refuses a case without affording the applicant an in country of appeal or alternatively failing to produce a decision or exercise evidential flexibility. Please note these are just examples and there may be other situations in which the Home Office’s decision maybe unlawful or at least an arbitrary abuse of power.

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Procedure

-The first stage for a Judicial Review is to issue a letter before claim to the Home Office setting out the basis of the claim. This is known as the Pre-action protocol, where the Home Office is given 14-21 days to respond. This stage is important as it allows for extensive litigation to be avoided where the Home office concedes and tests the legal arguments advanced where the Home Office does not concede. This stage is also important for costs purposes.

-If the Home Office’s response to the letter before claim is not satisfactory, A Judicial Review claim is completed, together with detailed statement of facts and grounds and submitted with the relevant court. This is the most intensive part of the Judicial Review procedure and often requires a qualified barrister to advise and draft statement of facts and grounds.

-Once the claim is issued all papers are served on the Home Office and interested parties, who then have the chance to submit grounds of defence.

-All correspondence is then forwarded to a judge to produce a decision on the papers only.

-Where permission is refused, a renewal application is submitted for the matter to be heard in open court. (Most cases are refused on papers but later granted in at court).

-Where permission is granted the matter proceeds to a full hearing. This can be a two stage procedure, where a permission hearing is heard and then a substantive hearing is listed or result is a ‘rolled up hearing’, where the judge suggests that both stages be heard on the one day.

-The judge then delivers the decision either on the day of the hearing orally or is handed down shortly afterwards in writing.

It should be noted that the Home Office and the applicant can settle the matter outside of court at any given point through a consent order. In most cases where the Home Office concede the Judicial Review claim the matter ends with a signed and sealed consent order which is filed with the relevant court.