Running JRs with an OISC JRCM licence

Judicial review has become an essential element in the immigration lawyer’s repertoire. At one time it was a relatively specialist area, involving mainly last minute emergency challenges against removal (and issues arising in complicated legal aid cases). But with the abolition of the universal right of appeal from spring 2015, many migrants have been forced to have recourse to judicial review given the absence of any statutory right of appeal.

Recognising this fact, Level 3 OISC advisers have been allowed to seek an additional category of authorisation for Judicial Review Case Management (JRCM) since 2017. The OISC Guidance outlines the key areas of necessary competence, skills and aptitudes. Advisors given JRCM authorisation will be permitted to instruct counsel to pursue JR challenges. It is counsel who provides the litigation legal services under the JRCM model and thus they must have obtained a specific permission to litigate from the Bar Standards Board. Only very few barristers have such permission: the HJT Directors, myself and David Jones, are amongst the select few. Before an advisor considers seeking JRCM authorisation they should make enquires with appropriately qualified counsel in order to satisfy themselves that they will be able to work together: if so, the barrister can be added to the OISC firm’s list of experts.

The OISC Guidance explains that an advisor’s work will concentrate on merits assessment, explaining the procedures, likely costs exposure and the litigation risks, and the nature of the arguments available. Thereafter advisors can brief counsel, assist with the compilation of bundles of supporting evidence and witness statements, holding a central record of correspondence, and keeping the client updated with the changing fortunes of the judicial review application as it progresses. On audit the OISC will expect to see clear written evidence that good judgment and timely advice has been given throughout the claim, and will monitor the outcome of cases including the imposition of any totally without merit certificates by the Tribunal.

Many issues arise when running a JR via JRCM. Here is a flavour of just a few of them.

Merits assessment is a distinct art, depending on the available evidence, the state of the case law, the optics of the case, and the anticipated appetite of the SSHD to defend her decision making. The merits may well change as a judicial review claim progresses. Alongside merits one’s assessment of costs liability may well also alter. A case’s chances may well vary at the Pre Action, Acknowledgment of Service and permission stages.

Some cases are much more suitable for JR than others. As is often remarked, JR is not a “merits appeal”. Put another way, JR will usually only succeed if there is some procedural flaw in the decision making. If the decision maker has understood the case being put and referred to all the main these in the supporting evidence, the fact that their decision may be objectionable or “unreasonable” in the normal sense of that word will not suffice. It is much more difficult to articulate viable JR arguments than to succeed on an appeal: in First-tier Tribunal appeals judges hear up-to-date evidence and make up their own minds on all relevant issues. JR is very different.

If another application can be made with improved evidence, that is far more likely to succeed. And even if it doesn’t, it is better to put one’s best case with the fullest supporting evidence before seeking JR.

Where JR is appropriate, it is important to put one’s case fully via a well argued Pre Action Protocol letter first. It may well be worthwhile to bring counsel on board at that stage, even though an OISC advisor can conduct pre action work themselves. Counsel can often put the arguments in the PAP letter more concisely and forcefully than could anyone else. And they can set up the case for bringing formal JR proceedings.

A JR application is likely to have significantly more stages than an appeal, and the consequences of getting a procedural step wrong are more serious in public law proceedings than when before the First-tier Tribunal. It will be important to work out precisely which steps are being taken by counsel, and which are to be taken by those instructing. The OISC do not envisage their advisors corresponding with the Tribunal, and so this work will need to be done from the barrister. OISC advisors will need to acquaint themselves with the precise mechanism by which a barrister proposes so doing in order to stay on top of things themselves. And there should be ferociously accurate record keeping and diarising of key actions, including chasing and checking that steps have been correctly taken.

Costs negotiations at the end of proceedings are an art in themselves. One needs to have clear lines of responsibility between counsel and the OISC advisor as to who is responsible for drafting and serving the correspondence. Where an action succeeds by consent or a judge’s ruling, usually the SSHD will agree to pay costs. But the greater the difference between the grounds of success and the Pre Action letter, and the fewer the grounds that actually succeed, the more chance there will be of having to pay at least part of one’s legal costs.

JR under JRCM involves many further issues. If the foregoing has set you thinking, then sign up for our course next week. LIVE ONLINE COURSE | JRCM FOR OISC ADVISORS (JUNE) - HJT (hjt-training.co.uk).