Edinburgh - 0131 228 2083
Glasgow - 0141 248 6552

McGill & Co is a Scottish immigration law firm specialising in UK immigration, nationality and refugee law.

Court of Session confirms administrative review must precede judicial review

01 March 2021 Iain Halliday Blog

In CA v Secretary of State for the Home Department [2020] CSOH 105 the Court of Session considered the steps that need to be taken before proceeding with judicial review.

The Petitioner’s application for leave to remain as a stateless person had been refused. He could apply for an administrative review of that decision. This is an internal review by the Home Office. Some immigration refusals can be appealed to an independent Tribunal (e.g. refusal of human rights claims, asylum claims, or settled status applications). However many cannot (e.g. refusal of applications as a Skilled Worker, student, statelessness person, sole representative, innovator, investor, or on the basis of UK ancestry).

However, in this case, no application for an administrative review of the decision was made. It was argued that administrative review would not have been an effective remedy as it only allows a decision to be overturned if there is a “case working error” as defined in the immigration rules (specifically paragraph AR2.11 of Appendix AR). The Petitioner sought to challenge the rationality of the Home Office’s decision. It was suggested that the issue between the parties could not properly or effectively be decided by the alternative remedy of administrative review. It could only be resolved through judicial review.

It was also argued that, due to previous administrative review applications having been made, which led to the application being re-refused, there was nothing to be gained from another administrative review application. In short: the Home Office would have refused the administrative review application, so what would be the point in applying? 

Both of these arguments were rejected by the court.

The court’s decision

The court began by considering the legal basis for administrative review and concluded that it is an available remedy with a statutory footing (paragraph 23). It “exists by virtue of an enactment” and is an alternative remedy. It is therefore covered by the court rules, which provide that:

“A petition may not be lodged in respect of an application if that application could be made by appeal or review under or by virtue of any enactment” (rule 58.3).

The court then considered whether the administrative review would have been an effective remedy. The first argument, that the scope of the administrative review was too narrow, was rejected: 

“It is clear that an incorrect application of the rules constitutes a case working error and, in my view, the reference to a failure to apply the relevant policy and guidance must be taken to include failing properly or correctly to do so. A purported application of the policy which proceeds on the basis of an irrational or illegal decision or finding is such a failure and is, therefore, a case working error… The suggestion that there is a distinction between the rationality of her decision and whether it is a case working error is not well-founded. It is plainly intended that an administrative review is an alternative remedy of wide application and its terms are so expressed. A subtle or nuanced approach to the precise nature of the alleged error is inappropriate.” [24]

The second argument, that an application would have been pointless as the Home Office would have refused it, was also rejected:

“It is not appropriate to speculate upon or seek to predict, what would have been the outcome of an administrative review that has not been applied for and hence not conducted. The assumption said to have been made does not cause that alternative remedy to be ineffective. There was, in my view, no basis for any such foregone conclusion. Accordingly, the general rule of having to exhaust alternative remedies applies here: the administrative review was a necessary step to be taken in order to make the judicial review a competent remedy” [26]

The application for judicial review was therefore not competent and was dismissed.

Comment

The second argument may resonate with anyone who has made an application for administrative review. In my experience, an application for administrative review is rarely successful.

Between 2015 and 2019 only 20.5% of in country administrative reviews led to the original decision being overturned (see page 31 of this report by the Chief Inspector of Borders and Immigration). However, this does not necessarily mean the administrative review is ineffective. No doubt the Home Office would argue that the low percentage is because the majority of their original decisions are correct!

Nevertheless, there is a perception among immigration lawyers that administrative review is an ineffective remedy. Unfortunately, that perception, even if it is based on years of experience applying for administrative reviews, is not sufficient to justify failing to apply. The decision in CA is a reminder that it is a step that needs to be taken before proceeding with judicial review. It is only if (or, being cynical) whenthe application for administrative review is refused that judicial review is competent.

Call now

Testimonials

Average rating for Our Testimonials, McGill & Co is 4.99 Star of 5 stars - based on 100 Review

Make an enquiry

Please let us know your name.
Please let us know your email address.
Please enter a valid phone number
Please let us know the nature of your enquiry
Please let us know your message.
How did you hear about us?

Please tell us your preferred office

Invalid Input

Latest Tweets