Key Judicial Review Cases

 Key Judicial Review Cases

Immigration rules and regulations in the UK have frequently been subject to legal challenges through judicial review in recent years. Several prominent cases have led to significant changes in immigration policies and practices. Here is a review of key judicial review cases that have impacted immigration law

R (on the application of AAA and ors) v The Secretary of State for the Home Department (UNHCR intervening) [2023] EWCA Civ 745

In April 2022, the UK government announced a new immigration policy to send some asylum seekers who arrive in the UK illegally to Rwanda for processing and resettlement.

This policy was immediately challenged in the courts. In June 2022, a coalition of immigration rights groups, including Care4Calais and Detention Action, filed for judicial review to block the first scheduled deportation flight to Rwanda.

The applicants argued the policy violates the Refugee Convention, human rights laws, and the UK’s statutory asylum obligations. They sought an injunction to halt flights while the judicial review is heard.

On June 14, 2022, the High Court in London ruled there was a strong public interest in allowing the government to pursue the policy. However, the Court of Appeal later overturned this and granted an injunction, blocking the first Rwanda flight just hours before its scheduled departure.

The Court of Appeal found on June 29, 2023, there was a real prospect that the policy would be found unlawful at the full judicial review hearing. The case will now proceed to determine if the Rwanda policy is legal. It is an ongoing legal challenge between immigration rights advocates and the UK government regarding asylum policy and human rights obligations.

The UKVI challenged the Court of Appeal decision at the UK Supreme Court (UKSC) However, on November 15,  2023,  the UKSC has upheld the Court of Appeal’s decision declaring deportations to Rwanda unlawful.

For full report on the UKSC decision, click here
For full Court of Appeal decision, read here

We will be covering more in next week’s blog.  So, watch this space!

Ogilvy [2022] UKUT 70 (IAC)

This immigration case involved an asylum seeker who was unrepresented when he lodged a legal challenge against two Home Office decisions – the refusal to grant him a Home Office Travel Document (HOTD), and the rejection of his fresh asylum claim. The Home Office failed to provide an acknowledgement of service as required procedurally. However, since both parties submitted legal arguments and evidence, and there was no objection from the applicant, the Upper Tribunal allowed the Home Office to participate in the permission stage. Notably though, it emerged that the applicant was subject to a High Court civil restraint order due to persistently pursuing unmeritorious and vexatious claims in the past. The Tribunal had to carefully consider whether this order should constrain the proceedings, or whether under its own procedural rules and in line with its overriding objective of justice, it could allow the challenge to proceed. The terms of the restraint order required close examination, since while the Tribunal is not formally bound by High Court orders, they are part of the same civil justice system. This raised a complex procedural dilemma about respecting the High Court’s intent to prevent further unmeritorious litigation, while also ensuring proper access to justice in this asylum case.

For full decision, read here

Butt [2022] UKUT 69 (IAC)

This has been a landmark case when it comes to indemnity costs in Judicial Review.

The Upper Tribunal has discretion to award indemnity costs which permit greater recovery than normal proportional costs orders, but these are not just awarded where conduct was highly unreasonable – the Upper Tribunal can also award them where it is in the interests of justice, even if the applicant succeeded in similar repeated challenges or did not fully comply with consent orders.

Factors supporting indemnity costs include applicants involuntarily drawn into test case litigation or achieving unusually favourable court orders forcing executive actions from the Home Office. So, while indemnity costs implicate stigma and penalise unreasonable behaviour exceeding the norm, the Upper Tribunal can flexibly award them to facilitate access to justice and effective remedies.

For full decision, read here

Topadar [2020] EWCA Civ 1525

This case examined when the Upper Tribunal can hear damages claims arising from judicial review applications, since it has the High Court’s incidental powers under the Tribunals, Courts and Enforcement Act 2007 – here, damages were sought for interference with family life under the Dublin III Regulation in failing to properly address family reunion. The Tribunal noted that complex or novel human rights issues may be best addressed in the UT, but more routine claims could be transferred to the County Court given its expertise and disclosure processes for such cases. Overall, the appropriate forum depends on whether the issues require Tribunal expertise or are better suited to the County Court’s regular handling of proportionate interference claims, considering factors like costs and consistency.

For full decision, read here

Judicial Review Conference

HJT’s annual Judicial Review Conference on 6th December 2024, offers an excellent opportunity to gain expert insights from leading experts on the full spectrum of business, asylum, family and trafficking judicial reviews.

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