What is the Pre-action Protocol?
The Pre-action Protocol is a process which must be undertaken before an individual applies for a judicial review.
A judicial review is a last course of action, often undertaken when an immigration application has been refused. Before a judicial review, it is expected that both parties will have undertaken the Pre-action Protocol in order to solve the issue and avoid a potential judicial review or court proceedings.
The Pre-action Protocol (PAP) is a letter that allows the complainant to outline their case against the respondent, Secretary of State for the Home Office.
The PAP letter gives the respondent an opportunity to consider the case and potentially avoid the need for litigation or further court proceedings.
If the person bringing the claim is unsatisfied with the letter of response, the next stage in the process is filing for a judicial review.
The only reason why the Pre-Action Protocol step should not be followed is in the case of urgent cases or time-sensitive claims.
Submitting the Pre-Action Protocol does not affect the time limit imposed on judicial review claims. The time limit begins from the date of the decision in question.
Alternative Dispute Resolution
According to the UK Ministry of Justice, litigation is considered a matter of last resort, when all other viable options have failed to be successful in resolving an issue.
Alternative Dispute Resolution (ADR) refers to the process which both parties should consider before bringing an action before the courts.
It may be a requirement of the claimant and/or defendant to provide proof that they sought alternative means of dispute resolution.
If the pre-action protocol is not followed, the courts may take this into account when apportioning costs of legal action.
Below are some of the approved methods of resolving disputes without recourse to litigation (please note that this list is not exhaustive):
- Both parties entering into a discussion and/ or negotiation of the issue
- Involving relevant local authority complaints or review procedures
- Engaging the services of the office of the relevant Ombudsman services
- Early neutral evaluation by an independent third party
- Working with a professional independent mediator to resolve the issue
Despite the importance of alternative dispute resolution, the civil procedure rules outline that no party should be forced to enter into a form of ADR without their consent.
As part of the pre-action stage in advance of a judicial review, it may be necessary to submit requests for information and documents from the other party.
The civil procedure rules are quite clear that such requestions must be proportionate to matters relevant to the claimant understanding why the decision under question was taken.
The other party must present evidence that will appropriately identify the issues and the reason for the challenged decision.
The defendant in the case is required to comply with the request for information unless there is a good reason that prevents them from doing so.
If a court later decides that a public body failed to provide relevant information, and that this constitutes a breach of statutory or common law rules, they have the power to impose costs sanctions.
What is the letter before claim?
The letter before claim (found in Annex A) refers to the letter sent by the claimant to the defendant as part of the Pre-action Protocol.
In this letter (which has the structure of a form), the claimant presents the merits of their case as it relates to the relevant laws and legal guidelines.
The purpose of the letter is to outline why the claimant believes that an incorrect decision was made.
This letter outlines the issues at the centre of the claim and establishes whether they can be resolved or whether litigation can be avoided altogether.
Claimants are recommended to use the standard format for the letter in Annex A. The draft claim form must include the following information:
- Proposed claim for judicial review
- Personal details of the claimant
- Reference details of the defendant
- Details of the claimants’ legal representatives, where relevant
- Date and details of the decision
- The point of contention/ omission under challenge
- Clear summary of the facts
- Relevant legal principles on which the basis of the claim is being brought forward
- Details of information the claimant is seeking and why (where relevant)
- Details of the action the defendant is likely to take
- Proposals for Alternative Dispute Resolution
- The address details for reply and service of court documents
- The proposed reply date
- Details of any person known to the claimant who meets the definition of an Interested Party (i.e., an individual directly affected by the claim)
It is important to submit a claim in good time in order to allow time for a response from the defendant.
A claimant who intends to request a protective costs order (so that they will not be liable for the defendant’s costs, or to limit their liability), must explain the reasoning behind the request.
This reasoning could include the limit of financial resources available to the claimant at the time of the submission of the claim.
For some cases, letters before claim must be sent to a specific address. Where appropriate, the claim may be sent electronically to the Home Office email address: email@example.com
Alternatively, claimants can use the Home Office postal address:
Litigation Allocation Unit,
6, New Square,
What is the letter of response?
It is normal practice for the letter of response to be sent within 14 days of receipt of the letter before claim.
If this timeline is not possible, it is recommended that defendants sent an interim reply to propose an extension and an explanation as to why they cannot meet this timeline.
They may also request further information at this stage (where relevant).
The format of this letter and the information provided should follow the structure in the guidelines of Annex B of the Protocol.
The information included in the letter of response before claim includes the following:
- The claimant’s details
- The details of the defendant
- Reference details of the case
- Details of the issue being challenged
- A response to the claim
- Details of Interested Parties identified
- Proposals for ADR
- Response to requests for information
- Address for future correspondence
If the claim is being conceded in full, the letter of response should articulate this clearly and unambiguously.
If the claim is being conceded in part or not at all, the letter of response should similarly articulate this clearly and unambiguously. As well as this, it must:
- Contain a new decision (where relevant), clearly outlining the points of the claim being conceded, and the points not being conceded
- Provide a clear timescale for a new decision to be issued
- Provide a more detailed explanation of the decision (where relevant)
- Outline the points under dispute and explain why they cannot be address
- Include information requested by the claimant or explain why the information is not included
- Where the relevant documentation requested cannot be provided in a timely manner, provide a clear timeline for the information to be provided
- Confirm whether they will accept an application for an interim solution (where relevant)
- Where the claimant has stated their intention to request a protective costs order, the defendant should provide a response to this
All Interested Parties should receive a copy of the letter of response.
Judicial review following a failed pre-action protocol
In order to submit a judicial review application on a Home Office decision, the request must be lodged as soon as possible, or within three months of the date of the decision.
This time limit cannot be extended, and the failure to submit a claim within this timeframe may result in permission being denied if there is no eligible reason for the refusal.
It may be possible to submit a claim after the deadline, however, it is generally recommended to speak to a solicitor as soon as possible after a refusal.
A judicial review does not encompass a resubmission of your case, rather it is an opportunity for a judge to make a judgement on whether the decision was procedurally and legally correct.
This is separate to a decision being ‘right’ based on the facts of the case. The judge only considers evidence that was provided to the decision-maker.
This means that the judicial review is not an opportunity to submit additional information about the case.
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Our immigration lawyers can work with you to provide you with the legal advice you need to make a decision about your case. Some of the services we can offer include the following:
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Between November 2013 and September 2020, just over 75,500 judicial review applications were received by the Upper Tribunal Immigration and Asylum Chamber (UTIAC).
Approximately one-third of these claims do not proceed to the permission stage for various reasons.
A high percentage of claims (over 90%) are typically dismissed by this stage.
If a claimant is allowed permission to proceed, approximately 30% will be successful in having a full hearing.
However, no data exists on pre-action settlements, which means it is not possible to know how many disputes will be settled before being submitted to UTIAC. It is possible that claimants receive a favourable decision at the PAP stage without needing to submit a subsequent claim for a Judicial Review.
Where the Home Office is issued a letter of claim, it is required to reply within 14 days, or issue an interim response outlining the reasons why it is not possible to meet this timeline.
If the Home Offices fails to reply, they may have to pay costs unless there are good reasons for not responding.