For many migrants on the receiving end of an immigration refusal by UK Visas and immigration, the only recourse is by way of judicial review. Thanks to the Home Office ending almost all rights of appeal for points-based system applications, except for those on Human Rights grounds, judicial review is often the last hope for people to be reunited with their families or stay in the UK; a place they may have called home for decades.
The best immigration lawyers will tell you honestly that mounting a judicial review challenge is neither cheap or easy. Both you and your immigration lawyer have to be prepared to be in it for the long-haul, overcoming various obstacles as you put together your case. It is therefore imperative that you choose an immigration solicitor who you feel you can work with and will provide the best support over what could be a long period of time.
The grounds for judicial review
A brief guide to the grounds for judicial review are as follows:
A decision-maker deciding on an immigration application must understand the law that governs them. If they fail to follow the law properly, there may be grounds to challenge their decision via judicial review.
In addition to acting within their powers, a public body must also respect the policy and purpose of the legislation that governs their powers and not act beyond the authority those powers purport to bestow on them. If they do, they may be deemed to have acted “ultra vires” i.e. beyond their powers.
Illegality can be split into four types:
i. acting with no legal authority
ii. misinterpreting the law
iii. failure to retain discretion either by improper delegation or adopting a policy that is too rigid
iv. abusing discretionary power, either by using power for an improper purpose or taking into account irrelevant considerations or failing to take into account considerations which are pertinent to the decision.
Irrationality in judicial review is sometimes known as ‘Wednesbury Unreasonableness’ after the case which originally discussed the ground. It is notoriously difficult to prove that a local body acted unreasonably. To succeed, the claimant needs to show that the decision made by the public body was so unreasonable that no rational person could have come to such a conclusion.
The reason this is such a touchy area is that to establish such unreasonableness, the courts would have to go into the merits of a decision, something that has traditionally been seen as outside the scope of judicial review.
In Associated Provincial Picture Houses v Wednesbury Corporation  1 KB 223, Lord Greene gave the definition of unreasonableness as:
“…there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority… [for example] the red-haired teacher, dismissed because she had red hair… It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere…”
Procedural fairness or impropriety
Procedural impropriety concerns how the decision was made. There are five basic elements of procedural fairness:
i. the public body must comply with the statutory rules outlining the decision-making process
ii. the common law requirements of a fair hearing must be met
iii. the decision is made without an appearance of bias
iv. the decision-maker complies with any elements of legitimate expectation
v. the claimant is given a fair hearing in accordance with Article 6 (1) of the European Convention on Human Rights
Is proportionality a ground for judicial review?
If a claim involves Human Rights or EU law, it may be necessary for the Administrative Court to decide whether an act or decision was proportionate to a legitimate aim. To be considered proportionate, an action must be appropriate, necessary, and not impose an excessive burden on those affected by it.
Proportionality takes on particular importance when it comes to Article 8 claims. In Singh & Anor v SSHD  EWCA Civ 630,  All ER (D) 251 (Jun), Sir Stanley Burnton, giving the judgment of the Court of Appeal, referred approvingly to AP (India) v SSHD in which McCombe LJ said:
“It seems to me that adult children (male or female) who are young students, from most backgrounds, usually continue to form an important part of the family in which they have grown up. They attend their courses and gravitate to their homes during the holidays, and upon graduation, while (as the FTT put it) they seek to "make their own way" in the world. Such a child is very much part of the on-going family unit and, until such a child does fly the nest, his or her belonging to the family is as strong as ever. The proportionality of interference with the family rights of the various family members should receive, I think, careful consideration in individual cases where this type of issue arises.”
Establishing grounds for a judicial review challenge is a specialist area of law. To have a chance of success, it is crucial to instruct an experienced Immigration Law solicitor to receive the best advice. Not only do sufficient grounds have to be made for bringing a judicial review claim, but all other avenues that could provide a remedy must also be extinguished and strict time limits adhered to.
The doctrine of proportionality may be leading to a widening of the grounds for judicial review in cases where there is a valid Human Rights claim. If your immigration application has been refused and you believe you may have grounds to challenge the decision on Human Rights grounds, get in touch with an Immigration Law solicitor as soon as possible.
OTS Solicitors is one of the most respected immigration law firms in London. By making an appointment with one of our immigration solicitors, you can be assured of receiving some of the best legal advice available in the UK today.
If you wish to discuss any of the points raised in this blog, please phone our London office on 0203 959 9123.
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Posted on: Monday, 26 June, 2017