New UK Immigration Bill is published

[Seekingasylum]

As I understand it, one may still make an appeal on human rights grounds which, if it were not available within the proposed legislation, would be accessible through a judicial review application. Now, before a judge considers those grounds he will first look at the process leading to the application including the reasonableness of the decision and its legality. If he considers that it was flawed then he will rule accordingly and order that the decision be quashed without actually considering the human rights aspect. Thus, there will be a de facto appeals procedure.

Teresa May in pandering to the nastiness inherent within the " little Englander " factions of all the political parties will gain nothing from this silliness and we shall see JR applications increasing exponentially with precisely the same results we find in the existing appeals process i.e the Home Office invariably loses because they are a bunch of <deleted>.

[Tony M]

You are right that there will be a right of appeal on human rights grounds, but I think that the the Home Office position on that will be that the current legislation already takes Article 8 into account. Yes, as now, anyone can apply for Judicial Review, but this is a lengthy and expensive avenue, and not, therefore, really a de facto appeal procedure. I think you will need to engage a suitably qualified person to start the JR proceedings, and you may end up with considerable costs.

[Seekingasylum]

Not at all.

The process is much quicker than getting an appeal determination and, unlike the appeal process, one can seek an order for costs. The pre-action protocol letter can be drafted by anyone and it is only when the respondent declines to concede the case does one need to employ a barrister. However, there are several chambers which offer direct access to counsel who can draft a claim ready for the applicant to lodge personally at whichever court, without the need to instruct a firm of solicitors. Essentially, the aim of a JR application is to get the matter under question out of the contrrol of the shiney-arsed clerk who made the daft decision in the first place and put before someone legally qualified and seized with a brain. More often than not when Treasury Solicitors (the government's lawyer)cast their eye over a claim arising from a flawed ECO decison they advise the Home Office to concede immediately. This is certainly true when silly mistakes are made or when the ECO is simply acting unreasonably and outside of the rules.

Admittedly, if the matter does progress to a hearing it will cost but, again, if the applicant has won the case and his counsel can demonstrate that throughout the process the applicant was entirely reasonable in bringing the action which should not have arisen then they will no doubt get their order for costs.

Challenging a decision by an ECO to the point when papers are served upon Treasury Solicitors takes about 4 - 6 weeks and would cost about £1,000. Balancing that expense with the cost of, say, applying for a fiance(e) visa through to the obtaining of indefinite leave to remain which, with language costs etc, now amounts to nearly £10,000, then I think you might agree it is value for money.

[Tony M]

If what you say is correct, then that sounds very good, but I think that many applicants may well be put off by the potential costs of losing a JR hearing. What is the cost for someone to draft a claim on the applicant's behalf ? If it more than the cost of a an Administrative Review, then surely the applicant will go for the AR ? Either way, it will cost money. Also, we are talking about the proposal to introduce an Administrative Review procedure as an alternative, under the Bill, to the current appeals process.

Edited November 2, 2013 by Tony M

[Seekingasylum]

The going rate is about £200 - £250 an hour for counsel. Preparation of the claim form is about 3 - 4 hours work. The punter lodges it himself. A pre-action letter can be knocked out by someone competent for around £200 -£300.

The AR procedure is worthless unless it is to be adjudicated by an independent lawyer. The reason why the appeals procedure is being dismantled is simply because in any given year the Home Office were losing up to 70% of them and, indeed, in most cases they never even bothered to turn up for the hearings. Judges in effect were simply being used as the case worker of last resort, a quite shameful state of affairs arising out of incompetent Home Office staff incapable of performing a function other than the most basic, manipulated by a cynical establishment.

JR is the future.

[vinny]

See also Administrative review success rates and Appeals and the Immigration Bill.