NCADC Campaigning Toolkit
This section refers to the higher courts in England, Wales and Northern Ireland . See the following section for the higher courts in Scotland.
This is part of the Immigration and Asylum Chamber. If your appeal is refused at the First-tier Tribunal, you can apply for permission to appeal at the Upper-tier tribunal if you think the First-tier tribunal made an error in the way they applied the law in deciding your case.
You first of all apply to the first-tier tribunal for permission to appeal at the Upper-tier tribunal. If this is refused, you can apply directly to the Upper-tier tribunal for permission to appeal there. If permission is refused at this stage, you may either apply to appeal at the Court of Appeal (if you were refused in an oral hearing – see below). Alternatively, you may be able to apply for judicial review of the refusal of permission to appeal at the Upper-tier tribunal, if you can demonstrate an error of law that raises an important point of principle or practice or show some other compelling reason for the case to be heard.
For information on how to apply for permission, see the tribunal website.
Most asylum and immigration judicial reviews are now heard at the Upper-tier tribunal (they used to be heard at the High Court, also known as the Administrative Court.) See section on judicial review below.
If you have applied for permission to appeal at the Upper-tier Tribunal and been refused permission at an oral hearing where it was said there was no error of law, you may be able to appeal to the Court of Appeal. If you were granted permission to appeal at the Upper-tier Tribunal and your case then was then refused in the Upper-tier Tribunal, you may also be able to appeal to the Court of Appeal.
If your case is refused in the Court of Appeal, the highest court in the UK to which you can appeal is the Supreme Court (the highest court used to be the House of Lords).
This is placed at the side of Figure 12 because it may come into different stages of an asylum claim or other immigration application. If you are seeking a judicial review because you believe there has been an error of law in your case, this is normally heard at the Administrative Court of the Queen’s Bench Division, which is part of the High Court (the Upper-tier Tribunal can also, and will increasingly, hear judicial reviews of immigration/asylum cases).
A judicial review is a form of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body (in asylum and immigration, usually the Home Office). A judicial review can challenge the way a decision has been made, if you believe it was illegal, irrational, or unfair. It is not really about whether the decision was ‘right’, but whether the law has been correctly applied and the right procedures have been followed. The court will not substitute what it thinks is the ‘correct’ decision. If you are successful in your judicial review, the case will normally go back to the Home Office, or the court found to have made an error of law. They may be able to make the same decision again, but this time make the decision following the proper process or considering all relevant caselaw or evidence reasonably.
A judicial review may be sought if your asylum claim has been certified; if you have submitted further evidence and the Home Office say it is not a fresh claim and there is no appeal; if you have been detained unlawfully; or if you have been refused permission to appeal at the Upper-tier Tribunal on the papers (if the permission to appeal occurred at an oral hearing where it was decided there was no error of law in the determination, you may be able to appeal this at the Court of Appeal).
Most judicial reviews in asylum and immigration cases will be heard in the Upper-tier tribunal (as of 1 November 2013). Previously, most judicial reviews were heard in the High Court.
The exceptions to this (judicial reviews that will still be heard in the High Court) are as follows:
An application for judicial review should be made as soon as is reasonably possible, and at the latest within 3 months of the decision (that is being challenged) being made unless it is an exceptional case. The time limits for judicial reviews in the Upper-Tier Tribunal are the same for those in the High Court.
For up-to-date information on fees for judicial review, see guidance on the Administrative Court website. The fees are the same in the Upper-Tier Tribunal as in the High Court/Administrative Court.
You may also seek a judicial review of the issuing of removal directions/a deportation order, and when seeking an injunction to stop deportation (see ‘Imminent Deportation’).
When an application for judicial review needs to be considered urgently, or when interim relief (an injunction) is being sought, the application for judicial review needs to be accompanied by an 'application for urgent consideration' form.
To have a judicial review heard, you must apply for permission. If permission is refused on the papers – you do not go to court but a judge looks at your documents and makes a decision – you can apply to 'renew'. This means you are asking the court to reconsider their decision to not grant you permission to judicially review your case. An application to renew must be made so that it is received within 9 days of the Tribunal’s decision (in the case of a fresh claim), and within 14 days of the Tribunal’s decision (in the case of an age dispute).
Judicial reviews are very complicated and you should always seek legal advice where possible on applying for a judicial review or injunction. Caseworkers and most solicitors cannot appear on your behalf in a judicial review, and so they will need to instruct a barrister to take on the case.
Changes to legal aid have made it harder to get legal aid representation for judicial reviews. If you are unrepresented or are being represented pro bono (for free, not under the legal aid system) and you lose your judicial review or application for permission for judicial review, you may be responsible for the costs.
If you are representing yourself, there is a Public Law Project leaflet that has important information on the process and costs, and the Bar Council has produced a guide to representing yourself in court.
If the courts find in your favour, they will either send your case back to a lower court or the Home Office, or make a direction for certain action. For example, if the Home Office refuse your asylum claim but you win your appeal in the First-Tier Tribunal, you are effectively granted refugee status but the Home Office have to issue the papers that prove you have this status. Another example could be if your immigration application is refused by the Home Office and the first-tier tribunal but you win an appeal in the upper-tier tribunal on the basis that the Home Office or the first-tier tribunal made a wrong decision, didn't follow procedure, didn't consider certain evidence or made an irrational/unreasonable decision in consideration of evidence or in reference to case-law. The upper-tier tribunal may direct that the decision be overturned and that you be granted status/a visa, or they may send your case back to the Home Office or the first-tier tribunal to make the decision again.
In a judicial review, the court will not substitute what it thinks is the ‘correct’ decision. If you are successful in your judicial review, the case will normally go back to the Home Office or the court found to have made an error of law. They may be able to make the same decision again, but this time make the decision following the proper process or considering all relevant caselaw or evidence reasonably.
The Court of Session, Scotland’s supreme civil court, sits in Parliament House in Edinburgh as a court of first instance and a court of appeal. Cases decided by the Court of Session can be appealed at the UK Supreme Court.
The court is divided into the Outer House and the Inner House. The Outer House can hear judicial reviews, like the High Court in England, Wales and Northern Ireland. The Inner House is an appeal court, like the Court of Appeal in England ,Wales and Northern Ireland. If you have applied for permission to appeal at the Upper-Tier (Immigration) Tribunal and been refused permission, you may be able to apply to the Court of Session. If you were granted permission to appeal at the Upper-tier Tribunal and your case then was then refused in the Upper-tier Tribunal, you may also be able to apply to the Court of Session.
Note: Ministry of Justice regulations put in place in 2011 mean that English and Welsh barristers and solicitors cannot appear in the immigration tribunals in Scotland and Northern Ireland, but solicitors and barristers from Scotland and Northern Ireland can appear in English and Welsh immigration tribunals. For more on this confusing development, read the Free Movement blog post.
The European Court of Human Rights (ECtHR) is responsible for making sure that member states of the Council of Europe respect the rights protected in the European Convention on Human Rights. The UK is a member state of the Council of Europe, and the European Convention on Human Rights became part of UK law in 2000 (when the Human Rights Act of 1998 came into force).
This means that decisions made under UK law (including the decisions of the Home Office and the immigration courts) should respect the human rights in the European Convention. If it can be argued that the UK has failed to protect one of these rights in its decision making, the case could be taken to the ECtHR.
The court would judge whether an individual or family’s human rights (as defined in the European Convention) have been violated. If they have, it would weigh up whether that violation was allowed within the normal operation of the government. Some rights such as Article 3 of the Convention (the prohibition of torture, inhuman and degrading treatment) are absolute, which means a government cannot violate them under any circumstances.
Taking a case to the ECtHR The court may consider legislation or policy that the UK government has introduced, and it also considers individual cases. If an asylum or human rights case in the UK is particularly strong or involves key legal arguments which may be important for other cases, lawyers would normally try and take the case to the higher UK courts including the Court of Appeal and the Supreme Court. If the case is lost in the Supreme Court, the lawyer may then apply for the case to be heard at the ECtHR.
Individuals trying to get their asylum/human rights cases heard at the ECtHR usually do so after being refused permission to apply for judicial review at the High Court. If you are considering applying to the European Court of Human Rights, you should read the guidance on their website.
This process can take time. If you need an emergency measure to stop deportation, you should apply for Rule 39 to be applied (see ‘Rule 39 Applications to the European Court of Human Rights’, below).
If the ECtHR finds in your favour, the Home Office will normally reverse their decision.
The European Court of Justice is formally known as the Court of Justice of the European Union (CJEU). The court is responsible for providing advice to national courts about the proper implementation of European law, and ensuring that European law is applied equally across member states.
It is very unusual for the European Court of Justice to be involved in individual asylum and human rights cases. A UK court may ask the Court of Justice for clarification on how a particular aspect of European law is to be used. This happened in the case of NS (Saeedi), when the UK Court of Appeal asked the European Court of Justice to comment on whether the UK removing asylum seekers to a third country (in this case, Greece) to have their claims considered fell under European Law.
