If your UK visa or leave to remain application is refused, and there are no human rights issues involved, you may be wondering if a judicial review can help overturn the decision. Since July 2013, the option to appeal a Points-Based Visa refusal has been limited, but judicial review remains an option in some cases. This process is not quick or cheap, but it may be a way to challenge a visa refusal if UK Visas and Immigration (UKVI) makes a mistake.
What is a Judicial Review?
A judicial review is a legal process where a judge reviews the decision made by a public body (like UKVI) to ensure it follows the law correctly. It doesn’t judge whether the decision was right or wrong, but instead checks if the decision-making process was fair, legal, and reasonable.
You can apply for a judicial review if you believe UKVI’s decision was based on one of the following:
- Illegality: UKVI acted outside its powers or didn’t follow the law properly.
- Procedural unfairness: The process wasn’t fair, or you weren’t given a fair chance to present your case.
- Irrationality: The decision was unreasonable and no reasonable person could have made it.
- Material considerations: UKVI didn’t take all the relevant facts into account.
- Legitimate expectations: UKVI didn’t keep a promise or follow a clear practice.
- Proportionality: UKVI’s decision was not proportionate to its purpose.
A judicial review is not about arguing the decision was wrong or about bringing up new information in your case. It’s about how UKVI decided in the first place.
Example of Judicial Review in Action
Let’s say a businessperson applied for a Tier 1 Entrepreneur Visa extension but was refused due to “missing documents.” However, all the documents were submitted, and the mistake was on the Home Office’s part. Since no appeal was possible, the applicant consulted an immigration solicitor, who began the judicial review process. After presenting the case, the Home Office reversed its decision without the case going to court, and the visa extension was granted.
The Judicial Review Process
Here’s how the judicial review process works:
1. Hire a Solicitor
The first step is to hire an experienced, SRA-regulated immigration solicitor. They will assess your case to determine if judicial review is the right option. If not, they will advise you on alternatives. Be aware that judicial reviews can be costly, and if you lose, you may have to pay UKVI’s legal fees.
2. Send a Letter Before the Claim
If your solicitor believes you have a strong case, they will send a “letter before claim” to UKVI. This letter explains why you believe the decision was wrong, provides supporting evidence, and requests a response, usually within 14 days. Often, UKVI will reconsider its decision and reverse it before it goes any further.
3. Request Judicial Review
If UKVI doesn’t respond or refuses to change its decision, the next step is to formally apply for a judicial review. There are strict legal guidelines to follow, and having a knowledgeable solicitor is crucial.
4. The Court’s Decision
A judge will decide whether the judicial review will proceed. If the review is denied, you may request an oral hearing. If the case proceeds, your solicitor will present your arguments, and witness statements may be given ahead of time.
5. Final Ruling
If the case goes to court and the judge rules in your favor, UKVI may be ordered to change its decision and could also be required to pay your legal costs.
Should You Pursue a Judicial Review?
Judicial review is a serious and often costly step to take. It’s typically only recommended when UKVI has acted unlawfully or failed to follow proper procedures. If your case is strong, judicial review may lead to a successful outcome, with UKVI reversing its decision before it reaches court. However, if UKVI stands by its decision, the process can be lengthy and expensive.
If your UK visa application is refused and you believe UKVI made an error, a judicial review may be an option. It’s a complex legal process that requires expert advice and a strong case. In some cases, UKVI may reverse their decision before the judicial review even reaches court, but in others, you may need to go through the full legal process.
At Law and Visas, we specialize in helping individuals navigate visa refusals and can guide you through the judicial review process if necessary. If you need assistance, don’t hesitate to get in touch with our expert team.
