Judicial review: APL06
Published 25 August 2011
© Crown copyright 2011
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This publication is available at https://www.gov.uk/government/publications/judicial-review-apl06/judicial-review-apl06
This guidance was archived on 18 June 2018. It has not been replaced with updated guidance.
1. APL6.1 What is judicial review?
Judicial review allows people with ‘sufficient interest’ to ask a judge to review:
- an action;
- a failure to act; or
- a decision;
by person carrying out a ‘public function’.
Sufficient Interest means:
- they are affected by it;
- there is no better person who could challenge
- there is substance in the challenge.
2. APL6.2 When can a claimant use judicial review?
- Where there is a limited right of appeal.
- Where all opportunities to appeal have already been used.
Where claimants have not used other available options a judge may refuse to hear their judicial review case. Where other options exist judicial review may not be the most suitable way of dealing with a problem.
Judicial review does not allow claimants to ask a judge to decide whether a decision was correct. It only allows claimants to put right an illegal, improper or irrational situation. The usual outcome of a successful claim would be for the case to be returned to the AIT or the decision maker for reconsideration.
3. APL6.3 The most common reasons for judicial review
- A delay in a determination reaching post following a successful appeal.
- A re-refusal following a successful appeal.
4. APL6.4 How can a claimant succeed at judicial review?
To be successful, claimants must show the court that there has been one or more of the following:
- Illegality - which is where an individual or body acts outside the powers given to it by law.
- Procedural Impropriety - which is when an individual or body does not follow correct procedures or fails to observe the ‘rules of natural justice’. The rules of natural justice have two main elements (i) the ‘rule against bias’ and (ii) the ‘right to a fair hearing’.
- Irrationality - which is when a decision or action is so unreasonable that no sensible person could have reached it.
- Proportionality - where the effect of the decision was disproportionate.
The judicial review claim form must be filed promptly, and at the most within three months after the decision was made or the action taken although it is open to the court to accept a late claim.
5. APL6.5 Successful claims and action for Posts
If the judge allows the claim, they are able to order one or more of the following:
- Mandatory order - where the defendant must do something;
- Prohibiting order - where the defendant must not do something;
- Quashing order - where the decision is overturned and must be taken again;
- Injunction - where the judge stops a person from taking a certain step;
- Declaration - where the judge sets out their view of the legality of the situation;
- Damages - these can only be awarded if the applicant had begun an application by writ.
5.1 Action for posts
It is important that judicial review cases are dealt with quickly and effectively. It is likely that posts will be involved directly in the preparatory stages of a judicial review claim. This will usually take the form of a letter, from UKVI, international group, sent to post informing them that an applicant is considering judicial review. This letter is known as a pre action protocol (PAP) or a letter before claim (LBC).
Claims can be dealt with effectively at this stage and post should consider whether this is appropriate.