When you apply for a UK visa, you submit your application form, supporting documents, and attend the interview. After that, you wait for your visa approval. But sometimes your visa may be refused. But – fear not – you will usually have the option to appeal and reapply. And one such option is via Judicial Review.
For certain visa applications, applicants get no rights to appeal while some visa applicants get full rights of appeal in cases where their visa is refused. Those who have full rights of appeal are:
- Partners, children and other dependent relatives of a UK citizen or of a person settled in UK, who are applying for a visa to come to the UK with a view to settlement.
- Family visitors who wish to come to the UK to visit their family member(s) in the UK.
When the embassy gives you right to appeal, it sends you an IAFT-2 appeal form with the notice of your immigration decision and an information document which explains how to complete the appeal form.
What is a Judicial Review and How Does it Work?
If the Home Office or UKBA has refused your application for entry clearance or leave to remain and you are not granted the right of appeal, then you can challenge by way of Judicial Review against the Home Office and UKBA.
Pre Action Protocol
You can make this challenge and apply for a Judicial Review within 3 months from the date of your refusal letter. This is known as ‘Pre Action Control’. As per civil procedure rules, the Pre Action Control notice must be sent by the applicant to the Home Office/UKBA, allowing them a minimum of 14 days to review and potentially change their decision.
The pre action control letter should explain why you think the decision to refuse your applicationwas wrong; you can give your reasons and provide information and evidence in the letter.
After the pre control letter, the Home Office and UKBA may or may not change their decision after a review and you may be granted the visa or your status of refusal may be maintained.
Paper and Oral Permission
When the Home Office/UKBA decides to maintain the refusal or it does not respond within 14 days after the Pre Action Control letter, you can make an application for permission to apply for judicial review to the Upper Tribunal.
Usually, the form to apply to make application to Upper tribunal is T480. You should fill in this form correctly. You need to pay the fee required for judicial review in Upper tribunal. Such an application is made on paper and the court decides whether to grant or refuse the permission on paper – with or without a court hearing. Generally, the applications for permission for judicial review are resolved by consent at this stage which takes place after negotiations between the Treasury solicitor (which represents the Home Office and UKBA) and the solicitor of the applicant.
If you are refused for permission by Upper Tribunal, then you can make an application for renewal of permission for judicial review. This needs to be made within 7 working days. The permission for review application will be decided, after a court hearing. In this process, the court will list the matters for hearing and – after the court hearing – it will grant or refuse you permission.
If you are granted the permission by the Upper Tribunal either at the stage of application on paper or after the hearing in the court, the judicial review will take place. A judicial review will be listed for hearing and then the Upper Tribunal will decide whether the decision taken by the Home Office/UKBA is in accordance with the relevant laws or not.
Once permission is granted, you must submit detailed grounds of defense within a particular timeframe. Nearer the confirmed date of the hearing, counsel for both sides will submit written arguments as to why the claim should either be allowed or dismissed.
How Long Does a Judicial Review Take?
A judicial review can take many months. Firstly, the Home Office have 14 days to respond to your initial Pre Action Control letter. Once the grounds have been served on the Home Office, they have 21 days to file a paper response. The process can take even longer if the judge needs an oral hearing prior to granting a substantive hearing and – of course – there is further time needed.