Instruction to staff about registering Judicial Review (JR) Cases

13 - Instruction to staff about registering Judicial Review (JR) Cases

1. Introduction – Purpose and Scope

This note does not aim to give guidance as to all the stages in a judicial review claim, but aims to alert you to the need to pay immediate attention to actual or threatened judicial review cases. It also tells you who you should contact about them in the first instance.

2. Judicial review – What are they?

Judicial review (JR) is the legal process whereby a person or persons can challenge the decision or action of central or local government or a public body. The law, which the courts apply in such cases, is called administrative law.

2.2 Our decisions are subject to possible JR and the results can have an important effect on practices, procedures and the interpretation of laws (particularly the Immigration & Asylum Act 1999) or rules (such as The Asylum Support Regulations 2000) and it is important for practical reasons to adopt a consistent approach.

3. Instructions - the effect on my work

3.1 The majority of applications for Judicial Review will be about individual cases. Caseworkers should expect they are more likely to receive these cases than other sections in NASS.

4. Lodging of an application for Judicial Review and notification

4.1 Solicitors may telephone or write to NASS advising us that they may issue Judicial Review proceedings against us or have actually started proceedings.

However, there may be occasions when the first time we hear about a case is when we receive notification from the Treasury Solicitor. These will often be cases where the applicant has applied to the Court "ex parte", which simply means without informing the other side first.

4.3 It could also well be that we hear about these cases direct from Home Office Legal Adviser’s Branch (LAB). This is because the Treasury Solicitor will often contact LAB in the first instance if there is a JR that impacts on the asylum support provisions. LAB would then contact senior managers in the relevant section of NASS, for example, Peter Durbin, Lisa Lyne or Judith Simpson.

The Treasury Solicitor acts as our legal representative in Court proceedings and in Scotland, our legal representative is the Scottish Office (through the Lord Advocate).

4.5 Legal Adviser’s Branch provides legal advice on interpretation of legislation and policy etc. The Treasury Solicitor should not be asked for legal advice on policy etc. You should make requests for policy advice or interpretation through the Policy and Process Team or through the Head of Operations.

5. Receipt of papers concerning an actual or threatened judicial review and what actions to take

5.1 Staff working in caseworking sections, registration and in the post-room should watch out for solicitors’ letters or legal documents. If you are uncertain, take advice from your manager. Do not ignore them!

5.2 The applicant's lawyers should send any facsimiles/letters warning of the time of the hearing when they will apply for permission for judicial review to the Treasury Solicitor. Often these come at very short notice before the hearing. In the event that you receive a fax or a letter like this, which has been sent to NASS rather than the Treasury Solicitor, it must be faxed immediately to the Treasury Solicitor.

5.3 If the applicant has applied ex parte, then they have a set time in which to notify the Treasury Solicitor of the fact that permission has been granted. If NASS staff receive this notice in error, it should be sent by fax immediately to the Treasury Solicitor through the team leader or section manager. The Treasury Solicitor must be contacted straight away, as time is really of the essence as time limits set may be very short.

On no account should NASS staff liaise directly with the applicant's lawyers. The Treasury Solicitor must conduct correspondence between the applicant’s lawyer, and NASS. (Although NASS can of course check the decision being complained about and liaise with the Treasury Solicitor about this.)

Your decision is being challenged by way of judicial review - what should you do?

You must notify section managers (normally your HEO or SEO) if you receive notification that one of your decisions is the subject of an application for Judicial Review. Section Managers must advise the Head of Operations and Policy and Process Team. Section Managers must also recheck the decision made in the case to ensure there are no obvious errors or omissions.

Threat of a Judicial Review by an applicant or by her or his representative? (Usually a Solicitors firm).

7.1 Threats to seek Judicial Reviews against NASS decisions may be issued in the form of letter, facsimile or telephone call. Staff must inform their section managers about these cases. Again, the decision in the case should be checked and the caseworker should respond to the solicitor within any time limit set, even if the letter simply says you are satisfied that your decision was correct. If it seems likely that you will be unable to respond fully within the time limit set, contact the solicitors to explain the reason for the delay. This may persuade them to delay lodging an application for judicial review. If you are unable to respond within the deadline set check with the Treasury Solicitor to ascertain whether proceedings have commenced. If so, the Treasury Solicitor, rather than a NASS caseworker, should respond. If not the NASS caseworker should respond. Do not ignore them! As with actual cases, section managers should advise the Head of Operations and Policy and Process Team about them.

7.2 At the same time, Section managers or their deputies should simultaneously alert the Treasury Solicitor as to the possibility of a JR and what they are doing about it.

8. The next stage in the process.

8.1 In England and Wales, the Court will make an initial decision on whether there is an arguable case. Many cases will be refused at this stage. In Scotland, all cases will proceed to a full hearing. It is important that caseworkers notify section managers of any developments, including decisions, in these cases. In turn, Section Managers must notify the Head of Operations and Policy and Process Team.

9. Section Manager is unavailable – what you

9.1 Caseworkers should normally inform their section managers about Judicial Reviews. However, in their absence they should seek the advice of another section manager. If there are no section managers available, you should seek the advice of a senior member of staff in NASS.

10. Policy and Process Team need to be informed.

10.1 Policy and Process Team monitor the number of threats and actual Judicial Reviews. In addition, some cases will impinge upon policy decisions that may need to be reviewed.

11. Contacts

John Allen or Karen Milne

Policy & Process Team Policy & Process Team

3rd Floor 3rd Floor

Voyager House Voyager House

020 8633 0145 020 8633 0143

Fax 020 8633 0131

T/Sols: Mark Benney

The Treasury Solicitor

25 Queen Anne’s Gate

LONDON

020 7210 3039 fax 020 72103433