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- Written by Arshad Mahmood
Where the Home Office, UKBA have refused an application for entry clearance or leave to remain and have not granted right of appeal against the refusal of the application, such refusal can be challenged by way of Judicial Review within 90 days from the date of the refusal letter.
The Civil Procedure Rules require that Pre-Action Protocol notice must be sent to the Home Office, UKBA giving them at least 14 days to review their decision and change their decision in light of the information/documentary evidence given through Pre Action Protocol letter. As a result of Pre Action Protocol letter, the Home Office, UKBA may review their decision to refuse the application and may either maintain the refusal or grant the visa.
If the decision to refuse is maintained by the Home Office, UKBA or the Home Office, UKBA do not respond to the Pre Action Protocol letter within 14 days, you can make an application to the Administrative Court (High Court) for permission to apply for Judicial Review. Such application is made on papers and the court will refuse and grant permission on papers and without a court hearing. The majority of the applications for permission to apply for Judicial Review are resolved by consent at this stage after negotiations between the Treasury Solicitors (the solicitors representing the Home Office, UKBA) and the claimant's solicitors.
If permission is refused by the Administrative Court, the claimant can then make an application for renewal of permission for Judicial Review within 7 working days for the permission application to be decided after a court hearing. The court will list the matter for hearing and the permission will be granted or refused after the court hearing.
If the permission is granted either at the stage of application on papers or after the hearing in the court, the Judicial Review will then be listed for substantive hearing whereby the High Court will decide whether or not the decision of the Home Office, UKBA is in accordance with the relevant laws.