Judicial review

Question 1

The following are examples of decisions that may only be challenged through JR:

Answer 1

refusals to record further submissions as fresh asylum claims,
negative trafficking decisions, or
certifications of asylum and human rights (HR) decisions.

Question 2

section 94 NIAA 2002 certification

Answer 2

clearly unfounded

Question 3

section 94B NIAA 2002 certification

Answer 3

no real risk of serious irreversible harm

Question 4

Ayache v SSHD [2017] UKUT 122

Answer 4

The Upper Tribunal (UT) held at [38] that, where a challenge to certification is based on evidence not previously before the SSHD, the appropriate remedy is a fresh claim under para.353 of the Immigration Rules.

Mnemonic - don’t give the judge an eye-ache with new evidence

Question 5

How is an application for legal aid funding for JR made?

Answer 5

Using CCMS - providers do not have delegated powers to grant legal aid certificates

Question 6

What are the two levels of certificated legal aid?

Answer 6

Investigative and substantive

Question 7

A certificate will generally protect your client against the recovery of costs by the other side, under

Answer 7

s. 26 LAPSO

Question 8

In the High Court, CPR rule 54.6(2) requires the claim form N461 to be accompanied by the documents specified in Practice Direction 54A, which include (at paras.4.2–4.4):

Answer 8

a detailed statement of grounds and a statement of facts, which together should not exceed 40 pages,
a copy of the order / decision under challenge,
any other documents on which the claimant relies,
any relevant statutory material, and
a list of essential reading.

Question 9

CPR rule 54.7 requires the claim form to be served on the defendant and any interested party no later than

Answer 9

seven days after the date of issue. A certificate of service must be filed with the court.

Question 10

rule 28A of the Upper Tribunal Rules requires a copy of the application and any accompanying documents to be provided to the respondent and any interested party within

Answer 10

nine days of the application being made. The UT must also be served with a statement of when and how this was done, within the same time frame.

Question 11

CPR 54.7A - Cart JRs (application for permission for JR following refusal of UT of permission to appeal against decision of FTT). Deadline for claim

Answer 11

16 days after notice of UT decision sent

Question 12

CPR rule 54.8 requires the defendant to serve an acknowledgement of service summarising their grounds of opposition, not more than

Answer 12

21 days after service of the claim form. Under CPR rule 54.9(2), failure to adhere to this deadline may have costs implications.

Question 13

rule 29 of the Upper Tribunal Rules requires AoS within 21 days. Historically the UT allowed much longer, until this was stopped by the case of

Answer 13

KA and another v SSHD [2018] UKUT 201 (ending of Kumar arrangements)

Question 14

If permission is refused on the papers, request for reconsideration / renewal request must be made within

Answer 14

7 days (Admin court) - CPR rule 54.12(4)
9 days (UT) - rule 30(5)

Question 15

The (RCJ) Administrative Court public counter is open from

Answer 15

10am to 4:30pm. From 3pm only urgent
applications can be issued

(Contact details at Annex 1 to Admin Court JR guide)

Question 16

Even where a JR application is about a decision under the Immigration Acts (which per the LCJ’s 2013 Direction should be made in UTIAC), the following must be made in the Admin Court (9)

Answer 16

a challenge to the validity of primary or subordinate legislation (or of immigration rules);

a challenge to the lawfulness of detention;

a challenge to a decision concerning inclusion on the register of licensed Sponsors maintained by the UKBA;

a challenge to a decision which determines British citizenship;

a challenge to a decision relating to asylum support or
accommodation;

a challenge to the decision of the Upper Tribunal;

a challenge to a decision of the Special Immigration
Appeals Commission;

an application for a declaration of incompatibility under s.4 of the Human Rights Act 1998; and

a challenge to a decision which is certified (or otherwise stated in writing) to have been taken by the Secretary of State wholly or partly in reliance on information which it is considered should not be made public in the interests of national security.

Question 17

Removal windows

Answer 17

Removal windows unlawful.

The HO may not remove an individual from the UK without having provided them with notice of removal.

Current removal notice periods are:
72 hours minimum in all cases (to include at least two working days and the last 24 hours must be a working day unless the notice period includes three working days).
five working days in cases where a decision to refuse and certify an immigration application is served at the same time.

Question 18

Removal notice periods

Answer 18

72 hours minimum in all cases (to include at least two working days and the last 24 hours must be a working day unless the notice period includes three working days).

five working days in cases where a decision to refuse and certify an immigration application is served at the same time (unless case has already been JRd).

Question 19

Barriers to removal (4)

Answer 19

fresh asylum or HR representations will bar removal until decided.

Positive RG under NRM, or awaiting RG decision under NRM

JR of removal issued (unless there has been JR or appeal on same facts within past 6 months, or removal is by charter flight or special arrangements - in such cases, an injunction is required to prevent removal)

Access to legal advice for detained person (normally - though to be carefully considered on merits)

Question 20

Must be completed and served with RDs.

Its functions include:

1) outlines the actions on their case which have led to RDs being set
2) should the person apply for JR, their legal rep, OSCU, and the admin court/UT will rely on this info (eg in deciding whether to defer removal)

Answer 20

Immigration factual summary (ICD.2599)

Mnemonic - likely to be from 25% to 99% accurate
IFS (if its)
ICD (like LCD)

Question 21

UT JR claim form

Answer 21

UTIAC1 (replaces T480) - fee £154

Question 22

UT form - The applicant must inform the Tribunal that
they have provided sealed (stamped) copies
of the application for judicial review on all
other parties within 9 days of making the
application (case may otherwise be struck
out for non-service).

Answer 22

UTIAC2: Written statement - Rule 28A(2)

Replaces T485

Question 23

UT AoS

Answer 23

UTIAC3: Acknowledgment of Service (replaces T482)

Question 24

UT form for the applicant to apply for urgent
consideration alongside filing an application
for judicial review.

Answer 24

UTIAC4: Urgent consideration with form UTIAC1 (replaces T483)

No additional fee

Mnemonic - 4 urgent consideration

Question 25

UT - form for any party to apply for urgent consideration at any time after the application on UTIAC1 has been issued.

Answer 25

UTIAC5: Urgent consideration without form UTIAC1 (replaces T484)

Fee £255

Mnemonic - fee is £255, 5

Question 26

UT - form to apply for reconsideration of permission
at a hearing where it has been refused on
the papers (a 9 days time limit applies, from
the date the tribunal’s decision refusing
permission was sent).

Answer 26

UTIAC11: Application to reconsider permission Rule 30(4)

Replaces form 86B

£385

Mnemonic 1, 1 more chance

Question 27

Admin court JR claim form

Answer 27

N461

Mnemonic - 46 judd road, where it all began for 1

Question 28

Admin court - form to ask court to urgently consider a JR

Answer 28

N463

Mnemonic - 46 judd road, urgent3

Question 29

Admin court JR fees

Answer 29

Permission to apply - £154
Request to reconsider permission at a hearing - £385
Permission to proceed - £770

Question 30

American Cyanamid Co (No 1) v Ethicon Ltd [1975] UKHL 1

Answer 30

Principles re interlocutory injunction

The main American Cyanamid guidelines, as they have come to be known, are:

Whether there is a serious question to be tried
Adequacy of damages
What would be the balance of convenience of each party should the order be granted (in other words, where does that balance lie?)
Whether there are any special factors.

Question 31

s37 SCA 1981

Answer 31

The High Court may by order (whether interlocutory or final) grant an injunction … in all cases in which it appears to the court to be just and convenient to do so.

Question 32

R v Secretary of State for Transport, ex parte Factortame Ltd (No 2) (Case C-213/89) [1991] states that when assessing where the balance of convenience lies…

Answer 32

…matters of considerable weight must be put before the court for a public authority to be compelled or restrained, in the public interest, in the performance of its duties.

Question 33

Which documents would you include with your application for an emergency order to stay removal from the UK?

Answer 33

Certificate of legal aid

Draft order

Further submissions awaiting HO decision

Question 34

Lumba v SSHD (2011) UKSC 12

Answer 34

For detention to be lawful, the policy permitting detention must be published and be consistent with other published policy (this will apply even if individuals could have been detained under a different lawful policy)

In 2006, following adverse publicity, the SSHD adopted an unpublished policy which imposed a near blanket ban on the release of FNPs

Mnemonic - lumbar - behind our backs

Question 35

Detention may be lawful in the following (2) circumstances:

plus 3 conditions which must be met

Answer 35

pending examination or a decision on leave to enter or remain, or

for the sole purpose of deportation but only if deportation can be effected within a reasonable time (R (Hardial Singh) v Governor of Durham Prison [1983] EWHC 1 (QB)).

However, the following three conditions must also be met:
1.the policy permitting detention must be published and be consistent with other published policy (this will apply even if individuals could have been detained under a different lawful policy) (Lumba v SSHD (2011) UKSC 12),

2. the detention must be regularly reviewed in accordance with the Detention Centre Rules, and
3. the risks of detention must have been considered, in accordance with the Adults at Risk policy.

Question 36

Unaccompanied asylum-seeking children may only be detained

Answer 36

in short-term holding facilities, and for a maximum of 24 hours.

Question 37

BF (Eritrea) v SSHD [2019] EWCA Civ 872

Answer 37

The case of BF (Eritrea) v SSHD [2019] EWCA Civ 872 led to a change in the criteria for detention from those whose appearance “strongly suggested they were over 18 years of age” to those whose appearance “may strongly suggest that they are 25 years of age or over”.

Mnemonic - by face

Question 38

Definition of torture for purposes of adults at risk in immigration detention

Answer 38

set out in rule 35(6) of the Detention Centre Rules 2001

“any act by which a perpetrator intentionally inflicts severe pain or suffering on a
victim in a situation in which-
(a) the perpetrator has control (whether mental or physical) over the victim, and
(b) as a result of that control, the victim is powerless to resist.”

Severity, intent, powerlessness

Question 39

Rule 34 medical examination

Answer 39

(1) Every detained person shall be given a physical and mental examination by the medical practitioner (or another registered medical practitioner in accordance with rules 33(7) or (10)) within 24 hours of his admission to the detention centre.
(2) Nothing in paragraph (1) shall allow an examination to be given in any case where the detained person does not consent to it.
(3) If a detained person does not consent to an examination under paragraph (1), he shall be entitled to the examination at any subsequent time upon request.

Mnemonic - 34, 24

Question 40

R (Adegun) v SSHD [2019] EWHC 22 (Admin)

Answer 40

Bipolar treated with medication. Did not have his medication (Olanzapine) when detained.

Did not receive a Rule 34 medical exam. Told them he needed medication, but not given it. Had psychotic episode with hallucinations.

as a result of these failures detention was unlawful - substantial damages awarded.

Mnemonic - add a gun to detention

Question 41

Rule 35 examination

Answer 41

The purpose of a Rule 35 is to report on patients who may be victims of torture or whose health may be injuriously affected by detention (including suicide risk). On receipt of a report under Rule 35, the Secretary of State (SSHD) is required to respond and review the suitability of detention in the light of the findings.

NB the equivalent provision under the STHFR 2018 is rule 32

Question 42

R (VC) v SSHD [2018] EWCA Civ 57

and

R (ASK and MDA) v SSHD [2019] Civ 1239)

Answer 42

Failure to make reasonable adjustments for detainees with poor mental health or who lack capacity may breach the Public Sector Equality Duty
VC
Background: This case challenged the detention of a Nigerian man with bi-polar affective disorder whose mental health deteriorated whilst he was detained to the point of losing mental capacity.

Outcome and Impact: The Court of Appeal held that VC had been unlawfully detained for 10 months. The Court found that the Home Office had failed to apply its own policy which was in place at the time, misinterpreting ‘those suffering from serious mental illness which cannot be satisfactorily managed within detention’ as not applying ‘unless and until the Claimant’s condition deteriorated to the extent that he was hospitalised’. The Court also held that the Home Office acted in breach of the Equality Act 2010 in failing to make adjustments to ensure that VC could be assisted in challenging the decisions to detain him, and to segregate him during that detention.

The Court of Appeal did not hold that the treatment of VC breached Article 3 ECHR (prohibition of torture, inhuman, or degrading treatment). However, this aspect was appealed to the Supreme Court and in an order dated 11 January 2021, the Supreme Court allowed the appeal by consent, on the basis that the Home Office conceded that VC’s treatment in detention had breached Article 3 ECHR. The order stated that “It is declared that during the period of immigration detention when the Appellant suffered from a serious psychiatric illness, his rights under Article 3 ECHR not to suffer inhuman and degrading treatment were infringed”.

This case established the need to make reasonable adjustments for those lacking capacity, and established a precedent followed in future cases (including ASK and MDA above).

ASK and MDA
Background: This case challenged the detention of people with mental health conditions, who whilst detained lacked capacity to challenge their detention or engage with detention procedures. These cases follow the decision in VC detailed below.

Outcome and Impact: The Court of Appeal found that the Home Office had discriminated against ASK and MDA in breach of the Equality Act 2010 by failing to make reasonable adjustments when they lacked capacity to engage in relation to important decisions, such as the decision to continue detention. This case has led to calls for the Home Office to take urgent steps to put in place safeguarding arrangements to protect the right of access to justice for detained people who may lack capacity.

Question 43

Individuals can be detained in a STHF for an absolute maximum of

Answer 43

7 days

Question 44

Statutory requirements re written reasons for detention

Answer 44

Rule 9 DCRs 2001

Must be provided with written reasons for detention at time of detention, and monthly thereafter (per guidance, this means every 28 days)

Question 45

Detention reviews

Answer 45

Set out in Chapter 55 EIG (also sets out level of authority for detention - inspector, SEO, CIO, HEO, Grade 7, 6 or 5)

Non FNO
24 hours
7 days
14 days
monthly 

FNO
14 days (for individuals not transferred from prison)
monthly

Question 46

Detention: General instructions (replaces Chapter 55 EIG)

Answer 46

Powers of detention

Decisions to detain

Forms

Procedures

Reviews

Rule 35

Special cases (pregnant women, children, refusing food)

Adults at risk

Places of detention

Home leave

Search and seizure powers

Question 47

TT (Vietnam) v SSHD [2019] EWCA Civ 248)

Answer 47

The detention of foreign national offenders who are suspected VoTs is currently permitted on public order grounds – but there has to be greater evidence of risk of absconding or reoffending than one conviction to justify detention following positive trafficking identification

mnemonic Trafficking deTention

Question 48

SB (Ghana) v SSHD [2020] EWHC 668 (Admin)

Answer 48

If removal is not imminent because a detainee has subsequently been given an in-country right of appeal against an immigration decision, detention may become unlawful

SB was sentenced to 8 years for rape (offence at more serious end of spectrum). Whilst in immigration detention he appealed against refusal of asylum claim. Judge note the timescale for resolution of asylum appeal is at least 6 months, and so detention during this period would not be for deportation, but general preventative detention, which is not allowed.

Question 49

Purpose of challenging unlawful detention

Answer 49

Release

Damages

Question 50

Evidence to support JR claim re unlawful detention

Answer 50

Evidence in support of the claim must be served on the HO in advance of initiating proceedings. This should include any evidence of pre-existing conditions, evidence previously submitted to the HO, and Rule 35 reports.

Consider commissioning an independent medical assessment.

Obtain detention healthcare records, HO records and detention centre logs.

Take detailed instructions from your client about treatment needs and access to treatment in detention.

Ensure the HO has an opportunity to consider all medical evidence, as you will not later be able to rely on anything not previously served as evidence of the breach.

Question 51

If no longer detained, proper claim re previous unlawful detention is…

Answer 51

private law claim for tort of false imprisonment

Question 52

A Cart JR is

Answer 52

a JR that challenges a UT refusal of permission to appeal a First-tier Tribunal (FTT) decision, in circumstances where there is no further right of appeal to the Court of Appeal. It is named after the Supreme Court’s decision in Cart v The Upper Tribunal [2011] UKSC 28.

the Supreme Court held that JR is available as a remedy in restricted circumstances, limited to the grounds on which permission might be granted for a second-tier appeal to the Court of Appeal.

Mnemonic - carting unappealable decision over to the HC

Question 53

Rule 54.7A CPR

Answer 53

Introduced following Cart

‘Judicial review of decisions of the Upper Tribunal’

“(7) The court will give permission to proceed only if it considers –
that there is an arguable case, which has a reasonable prospect of success, that both the decision of the Upper Tribunal refusing permission to appeal and the decision of the First-tier Tribunal against which permission to appeal was sought are wrong in law; and

that either –
the claim raises an important point of principle or practice; or

there is some other compelling reason to hear it.”

Question 54

A particular feature of CPR rule 54.7A is that, where permission to apply for JR is granted, unless the UT or an interested party requests there to be a hearing, within a prescribed period, the court “will…

Answer 54

… will make a final order quashing the refusal of permission without a further hearing” (CPR rule 54.7A(9)(b)).

The power to make such an order may be exercised by a Master of the Administrative Court (CPR rule 54.7A(10)). In practice, a hearing is rarely requested, with the consequence that the grant of permission routinely leads to the quashing of the decision to refuse permission to appeal.

Question 55

Cart JRs

In addition to the relevant claim form N461, CPR rule 54.7A(4) requires the following supporting documents:

Answer 55

the UT decision to which the application relates, and any document giving reasons for the decision,

the grounds of appeal to the UT and any documents which were sent with them,

the FTT’s decision, the application to that Tribunal for permission to appeal and its reasons for refusing permission, and

any other documents essential to the claim.

Question 56

Saimon (Cart Review: “pending”) [2017] UKUT 371

Answer 56

when a Cart JR successfully quashes a refusal of permission to appeal, the underlying appeal under s.82(1), NIAA 2002, is not finally determined – this means the appeal is again “pending” within the meaning of s.104(2)(a), NIAA 2002.

Mnemonic - squashed salmon are pending/swimming again, not finally determined

Question 57

Thakrar (Cart JR; Art 8: value to community) [2018] UKUT 336

Answer 57

the fact an application for permission to appeal involves an assertion that a person’s removal from the UK would violate their human rights does not, without more, engage the second appeal criteria which allows permission for a Cart JR to be granted

the fact a person contributes substantially to the UK economy cannot, without more, diminish the importance accorded to immigration controls, when determining the Article 8 position of that person. (bus drivers and brain surgeons)

Mnemonic - Thak - HC got flak from UT.

Question 58

Shah (“Cart” judicial review: nature and consequences) [2018] UKUT 51

Answer 58

a Cart JR is a challenge to the lawfulness of the UT’s decision - it is emphatically NOT an opportunity to raise new grounds of appeal against the FTT’s decision. The UT must be satisfied there is an error of law in the FTT’s decision before that decision can be disturbed. JR grounds which fail to show the decision refusing permission was wrong in law are “highly unlikely” to succeed.

if the grounds contain misrepresentations or other falsities, the matter may be referred to the High Court for consideration of whether an explanation is required from the representative and/or counsel

Mnemonic - SHoddy

Question 59

MA (Cart JR: effect on UT processes) Pakistan [2019] UKUT 353

Answer 59

where a Cart JR succeeded, and then there is a permission hearing in the UT, the appellant must ensure the UT and respondent have all the materials relating to the Cart JR which may bear on the issue of whether permission to appeal should now be granted.

This is especially important where the case has changed materially, and this is not apparent from the original grounds of appeal. There must demonstrably be something legally wrong with the UT’s original decision, to establish the Cart JR is more than just a third opportunity to appeal, as parliament has ordained a maximum of two chances.

Also, if the grounds for contending that the FTT erred in law have changed, permission must be sought from the UT to amend the grounds. just because the grounds have found favour in the HC does not automatically make them the new grounds.

(In this case, the FTT overlooked an important medical report - saying due to psychosis MA would be unable to be discrete about his sexuality - and the UT did not identify this)

Mnemonic - MAterials, MAterially changed, MAximum of two chances

Question 60

Ejiogu (Cart cases) [2019] UKUT 395

Answer 60

any addition to the grounds of appeal requires permission from the UT, even in a Cart case.

Declared different earnings to UKVI (tier 1 general migrant app) vs HMRC; refused long residence ILR under 322(5). Said he was a victim of prof negligence by his accountants.

Mnemonic - edging in new grounds

Question 61

R (on the application of Faqiri) v Upper Tribunal [2019] EWCA Civ 151

Answer 61

on the issue of costs, where a Cart JR is brought, the tribunal whose decision is challenged will not usually be liable for the costs of the claim, unless it behaved improperly or unreasonably, or took an active part in the proceedings in such a way as to make itself a party to the litigation.

(Note: the recent case of D and Others v The Lord Chancellor [2020] EWHC 736 (Admin) is a helpful example of when the costs ratio is engaged.)

Mnemonic - facked it up

Question 62

Right to appeal to Upper Tribunal on a point of law arising from a decision made by the First-tier Tribunal (other than an excluded decision)

Answer 62

S.11 TCEA 2007