What Is The Difference Between Administrative Review And Judicial Review?

1. Administrative Review and Judicial Review in Immigration Cases

The legal right to appeal in various immigration cases has been persistently peeled away in recent years. This has seen an increase in immigration cases going through the processes of Administrative Review and Judicial Review.

The Administrative Review and Judicial Review processes exist in order to ensure that errors committed on cases by public bodies, such as the Home Office, can be exposed and a solution found.

So what is the difference between the two processes, and which avenue should be pursued first?

2. Which Immigration Decisions Are Eligible for Administrative Review?

Appendix Administrative Review, in particular AR 1.1 and AR 2.1 to AR 2.3, sets out which decisions are eligible for Administrative Review.

If eligible to apply for Administrative Review, this right should be stated in the decision letter received from the Home Office. Paragraph 34L of Part 1 of the Immigration Rules requires written notice of an eligible decision, unless the eligible decision is a grant of leave to remain, to include or be accompanied by reasons and information on how to apply for Administrative Review and the time limit. Were the case to proceed to Administrative Review, it would enable the applicant to expose a case working error committed by the Home Office, that they consider affected the decision received. For current purposes, the reviewer considers whether the eligible decision was incorrect because the decision maker failed to apply, or incorrectly applied, the relevant Immigration Rules or published guidance. More detail on the scope of the review and admissible additional evidence can be found at AR 3.1 to AR 3.3 of Appendix Administrative Review.

3. How to Apply for Administrative Review

Appendix Administrative Review provides different time limits and criteria for the submission of applications, depending on the eligible decision under review.

According to AR 2.6 of Appendix Administrative Review, the relevant time limits are: 7 calendar days from receipt of the notice where the eligible decision is a refusal of permission to stay or a decision to cancel permission to enter or stay and, on the date of decision, the person was detained under the Immigration Acts; 28 calendar days from receipt of the notice for a refusal of an application for entry clearance; 14 calendar days from receipt of the notice for a refusal of permission to stay where the person is not detained; 14 calendar days from receipt of the notice for a decision to cancel permission to enter or stay where the person is not detained; and 14 calendar days after receipt of notice of a grant of permission specifying the length and conditions of permission where the review relates to the period or conditions of grant. An application must be made online and is made on the date it is submitted online. Failure to make the application in time will normally mean that it is rejected as invalid, although AR 2.14 allows an out-of-time application to be accepted where the decision maker is satisfied that it would be unjust not to waive the time limit and the application was made as soon as reasonably practicable.

4. What Will Be Considered at Administrative Review?

Should the matter be considered eligible for Administrative Review, the alleged case working error will proceed to be assessed, through a consideration of the evidence that was before the decision maker when the original decision was made. The reviewer will consider whether the applicant is entitled to entry clearance or permission on the basis of the original application and will not consider whether the applicant is entitled to entry clearance or permission on any other basis. If additional evidence exists to go to prove the case working error, this may also be considered, but only as per the exceptions listed in AR 3.3.

5. Possible Outcomes of Administrative Review

If an Administrative Review is successful, the eligible decision will be withdrawn and reconsidered. If it is not successful, the eligible decision may remain in force, either for all of the reasons given in that decision, with one or more reasons withdrawn, or with different or additional reasons to those given for that decision.

6. Judicial Review in Immigration Cases

Unlike Administrative Review which reviews eligible decisions for case working errors, Judicial Review has specific categories for review. Judicial Review is concerned with the lawfulness of a decision, action or failure to act, rather than the merits of the decision. The categories which are generally recognised for Judicial Review in England and Wales are: illegality, procedural unfairness, unreasonableness/irrationality and breach of the Human Rights Act 1998.

7. Administrative Review or Judicial Review: Which Should Be Pursued First?

Fundamentally, Judicial Review is generally a remedy of last resort and should normally only be used where no adequate alternative remedy, such as a right of appeal or Administrative Review, is available. For this reason, Administrative Review should usually be pursued before applying for Judicial Review where it is available and adequate, unless urgent or exceptional circumstances justify proceeding otherwise.

In most immigration and asylum matters, Judicial Review proceedings are started in the Upper Tribunal Immigration and Asylum Chamber, although some immigration-related matters remain in the Administrative Court.

It is also important to note that, under CPR 54.51, a claim form for Judicial Review must be filed promptly and in any event not later than 3 months after the grounds to make the claim first arose, unless a different or shorter time limit applies. In addition to this stringent time limit, there are also procedural requirements which should be fulfilled, including a letter before claim under the Pre-Action Protocol for Judicial Review where appropriate, noting that the protocol will not be appropriate in very urgent cases. More information on Judicial Review can be found in a separate blog post, published on our Knowledge Centre.

8. Contact our Immigration Barristers

For expert advice and assistance regarding Administrative Review or Judicial Review in an immigration case, contact our immigration barristers in London on 0203 617 9173 or via our enquiry form below.

9. Frequently Asked Questions

What is the difference between Administrative Review and Judicial Review?

Administrative Review reviews eligible immigration decisions for case working errors. Judicial Review is concerned with the lawfulness of a decision, action or failure to act, rather than the merits of the decision.

When is Administrative Review available in an immigration case?

Administrative Review is available where there is an eligible decision. Appendix Administrative Review sets out which decisions are eligible for Administrative Review.

Will the Home Office decision letter say if Administrative Review is available?

If a decision is eligible for Administrative Review, the right to apply should be stated in the decision letter received from the Home Office.

What does Administrative Review consider?

Administrative Review considers whether an eligible decision was incorrect because the decision maker failed to apply, or incorrectly applied, the relevant Immigration Rules or published guidance.

Can new evidence be considered in Administrative Review?

Administrative Review is generally based on the evidence that was before the decision maker when the original decision was made. Additional evidence may only be considered in the exceptions listed in AR 3.3.

What happens if Administrative Review is successful?

If Administrative Review is successful, the eligible decision will be withdrawn and reconsidered.

Should Administrative Review be pursued before Judicial Review?

Administrative Review should usually be pursued before applying for Judicial Review where it is available and adequate, unless urgent or exceptional circumstances justify proceeding otherwise.