Chapter 7 End-of-chapter question guidance

Challenging decisions: appeals, administrative and judicial review

1. Consider the case for and against transferring judicial review cases to the Upper Tribunal.

Reference may be made to chapter 1 and material in the reading list for the particular nature of the Tribunal and its characteristics.

Consider the legal basis for judicial review and how this relates to the Tribunal's experience, history and role.

Read some judicial review cases in immigration and asylum law and look at what kind of evidence and reasoning is involved. What stands against the High Court retaining its jurisdiction?

 

2. If immigration decisions are administrative, does the new administrative review system meet the requirements of fairness for immigration applications?

  • Review the requirements for fairness as set out in the chapter and in case law. What are the elements of fairness?
  • Explain how the administrative review system works, including what is challengeable through it and on what basis.
  • Compare one with the other, and comment on any gaps and differences.

 

3. Who should decide whether legal advisers are abusing the system?

Consider the different provisions which can have an impact on legal advisers’ conduct of cases:

Professional bodies’ oversight: The Office of the Immigration Services Commissioner, The Law Society, the Bar Council.

Control through funding: the role of the Legal Aid Agency

The power to award costs in Tribunal cases, introduced by rule changes in October 2014.

Consider processes, personnel and purposes of these bodies.

Read the case of R (on the application of Hamid) v SSHD [2012] EWHC 3070 (Admin) [2012] EWHC 3070 (Admin) and R (on the application of Okondu and Abdussalam) v SSHD (wasted costs; SRA referrals; Hamid) IJR [2014] UKUT 377 (IAC).

Remember that:

  • a lawyer is instructed by their client
  • they have a duty also to the court
  • the Home Office is generally the opposite party in an immigration or asylum case
  • the client’s financial and immigration status both affect whether they are able to fund legal representation and whether they can obtain public funding (i.e. legal aid) for representation.
  • an immigration case may concern a desperate situation, such a last-ditch attempt to prevent deportation, or to keep a family together.