Tuesday, 18 August 2009

Immigration and asylum judicial review practice note

Source: The Law Society


* 1 Introduction

1.1 Who should read this practice note?
1.2 What is the issue?

* 2 Preventing removal

2.1 Applying for an injunction
2.2 Exceptional urgency
o 2.3 Removal outside office hours

* 3 More information

3.1 Status of this note
3.2 Terminology

1 Introduction
1.1 Who should read this practice note?
Solicitors acting for clients in immigration cases, particularly judicial review of removal decisions by the UK Border Agency (UKBA).

1.2 What is the issue?

From 30 January 2009, the UKBA will no longer automatically suspend the removal of applicants on receipt of a new judicial review challenge in the following cases:

* When the applicant has made a previous judicial review application within the last three months on identical grounds and permission was refused by a judge.

* When the applicant raises grounds that could reasonably have been raised at the previous judicial review.

From 3 August 2009, the UKBA will no longer automatically suspend the removal of applicants on receipt of a judicial review challenge where:

* The judicial review application is made within three months of the conclusion of a statutory appeal; and
* the applicant has lodged the same or virtually identical grounds to those raised at appeal.

The UKBA will still defer removal in appropriate cases.

If the claimant is removed, they are likely to have greater difficulties in continuing with the judicial review application. These difficulties may result from problems experienced from the country where they have been removed to, in communicating with their solicitor, and problems communicating with UKBA and the Asylum and Immigration Tribunal (AIT).
This practice note gives advice on how to handle your client's matter when the UKBA is following this new process.

2 Preventing removal

2.1 Applying for an injunction

UKBA will ensure that those individuals affected by this policy, and their representatives, will be informed of the need to obtain an injunction to prevent removal taking place.

You may apply for an injunction at the same time as applying for judicial review to prevent the claimant from being removed from the UK before a hearing. You should only submit a new judicial review application if the application:

* has a higher chance of success

* meets the merits threshold

2.2 Exceptional urgency

If your client's case is exceptionally urgent and the application needs to be determined within a certain time scale, you should submit the following to the administrative court:
* a judicial review application on form N461 (attached)

* a judicial review application for urgent consideration on form N463 (attached)

* a draft order of seeking injunctive relief
You should serve the forms on the UKBA, Treasury solicitors or other interested parties.

2.3 Removal outside office hours
You may make an oral application before a duty judge of the Higher Court if your client is being removed outside office hours. You should ensure the application for injunction proceedings is served on the UKBA, Treasury solicitors, or other interested parties.

3. More information

3.1 Status of this note
Practice notes are issued by the Law Society for the use and benefit of its members. They represent the Law Society's view of good practice in a particular area. They are not intended to be the only standard of good practice that solicitors can follow. You are not required to follow them, but doing so will make it easier to account to oversight bodies for your actions.

Practice notes are not legal advice, nor do they necessarily provide a defence to complaints of misconduct or of inadequate professional service. While care has been taken to ensure that they are accurate, up to date and useful, the Law Society will not accept any legal liability in relation to them.

For queries or comments on this practice note contact the Law Society's Practice Advice Service.

3.2 Terminology

Must - a specific requirement in the code or legislation. You must comply, unless there are specific exemptions or defences provided for in the code or relevant legislation.

Should - good practice for most situations in the Law Society's view. If you do not follow this, you must be able to justify to oversight bodies why this is appropriate, either for your practice, or in the particular retainer.

May - a non-exhaustive list of options for meeting your obligations. Which option you choose is determined by the risk profile of the individual practice, client or retainer. You must be able to justify why this was an appropriate option to oversight bodies.


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