Guidance

Judicial Review: What you need to know – and the risk of making an application which is Totally Without Merit

Published 6 November 2019

Immigration clients may be aware of a procedure in law called Judicial Review. This is a process by which the actions and decisions of government can be challenged and reviewed by the courts. Used correctly, it can be very effective.

Where an immigration decision does not carry with it a right of appeal or administrative review, or where these options have already been exhausted, an applicant may be able to challenge a Home Office decision by way of Judicial Review. The right to Judicial Review arises also against decisions of the Upper Tribunal to refuse leave to appeal, though a higher threshold operates in those instances.

Making an application for Judicial Review does not always mean that the Home Office cannot remove an individual from the UK if they do not currently have leave to remain. An application for Judicial Review may also not result in leave to remain being extended while it is being considered.

Judicial Review may nevertheless seem appealing to someone who feels they have nothing left to lose; but submitting a Judicial Review application when there are no grounds for doing so can result in the application being classified by a judge as Totally Without Merit, which can have serious implications for the individual, both in terms of the application being heard by a judge, as well as financially.

0.1 The role of an OISC adviser

Every Level Three registered OISC adviser has the ability to initiate the early stages of the Judicial Review process, called the pre-action protocol letter. However, certain qualified immigration law practitioners, including OISC advisers who are registered at Level Three in the category of Judicial Review Casework Management (JRCM), can manage the entire process although they will need to instruct a barrister or solicitor advocate, to lodge your application and appear on your behalf at the Judicial Review Proceedings.

The work involves making an application to challenge a decision of the Home Office on the grounds that it is unreasonable, that there have been procedural irregularities in making the decision, or that the decision may even have been illegal; and subsequently instructing a barrister to appear on your behalf at the Judicial Review proceedings. In the event an application is successful, it is usually possible to recover the costs spent on pursuing the Judicial Review.

If you are considering instructing an OISC adviser to make a Judicial Review application on your behalf, you must firstly make sure that they are permitted to do this kind of work.

Every OISC organisation authorised to carry out this work will be authorised in the in the category of JRCM in immigration and/or asylum -  you can check if this is a case by looking at the authorisation details listed for the firm on the register of regulated organisations – home.oisc.gov.uk/register_of_regulated_immigration_advisers/register.aspx

More information on the different OISC levels and categories of registration, can be found here.

To find an OISC adviser in your area able to assist you with Judicial Review work, you can use our online adviser finder here.

If you are unsure of your OISC adviser’s ability to conduct this type of work, please email us at info@oisc.gov.uk and we will be able to give you a definitive answer.

Should your OISC adviser suggest that a Judicial Review is made but inform you that you should submit the application in your own name and indicate that you are without representation they are breaching the OISC’s Code of Standards and you should be wary of proceeding. In making this application you are deceiving the courts and will have little protection if something goes wrong.

0.2 What is a Totally Without Merit application?

Some applicants may consider instructing their representative to make a Judicial Review application because they feel there are no other options open to them. However, as mentioned above, not every decision by the Home Office can be challenged in this way and there are significant risks that should be considered before embarking on this process.

Put simply, a Totally Without Merit application is one that is bound to fail. That means there is no basis, or grounds, for making such an application and it is intended to frustrate or abuse the immigration process. In the guidance “Risk Factors in Immigration Work” published on their website in December 2016, the Solicitors Regulation Authority said that approximately 20% of Judicial Review applications are dismissed as being totally without merit. They went on to say that the number of Totally Without Merit Applications has risen sharply in recent years, with the majority of these decisions involving a challenge under Article 8 of the European Convention on Human Rights, the article that deals with the right to a private and family life.

Normally when an application for Judicial Review is submitted, a judge will initially consider the grounds for the application and decide whether to give permission to proceed to an oral hearing. It is at this stage that an application can be classified as being Totally Without Merit.

If your application is classified in this way, it can often mean that you will be liable to pay the opposition’s costs. This means that you may end up paying the costs incurred by the government’s lawyers as they prepare the response to your application. These costs can often run into the hundreds, sometimes thousands, of pounds and when taken into consideration with your own representative’s fees and the costs of lodging a Judicial Review application, can result in you having to pay a very large amount of money without gaining any benefit.

Totally Without Merit Cases will not be heard orally, which means that you will not have your case argued before a judge. Effectively, if your application is judged to be Totally Without Merit, you will not have helped progress your case in any way and you could be considerably worse off financially.

Should you make more than one Judicial Review application that is classified as Totally Without Merit, it may also mean that you are issued with a Civil Restraint Order, which will prevent you from re-applying to the court in relation to your immigration matter, meaning that you no longer have the right for any court to hear your case.

If you are considering making an application for Judicial Review, or your adviser has suggested this as an option, here are some things to bear in mind: * Your adviser should be able to explain to you in person and in writing the grounds on which a Judicial Review might be pursued. * Your adviser should be able to explain to you in person and in writing the merits of your case and what the application will mean for your immigration position if it is successful and if it is not successful. * You adviser should be able to make it clear to you the costs of the application, both in terms of what you will need to pay to them to make the application on your behalf and the potential costs that you may face, if your application is rejected as being Totally Without Merit. * Your adviser should explain to you the costs of appealing to the Court of Appeal can be high and if they cannot be met, can saddle an applicant with a litigation debt. A litigation debt can operate as a bar to an alternative application under the Immigration Rules as it is a factor specifically identified as rendering an individual unsuitable under the rules.

If your adviser cannot do all of these things, particularly if they cannot explain the merits of your case, then it may be that Judicial Review is not the appropriate course of action for you to follow. If you are unsure, then you should consider asking your current adviser about any other options that may be available to you and the implications of such options for your case.