Public bodies are required to act lawfully, reasonably, and fairly. When they fail to do so, judicial review offers a structured legal path to challenge their actions or decisions. But not every grievance qualifies for review—only specific, legally recognised failures do. These failures are known as the grounds for judicial review.
Whether you’re an individual facing a decision by the Home Office, a solicitor supporting a client, or simply seeking to understand public law remedies, this article aims to provide a clear and practical overview grounded in UK legal standards.
Before diving into the specific grounds, it’s important to first understand the context of judicial review—what it is, what it is not, and why it matters.
What Is Judicial Review?
Judicial review is a legal process through which individuals can challenge the lawfulness of decisions or actions taken by public bodies. It’s a fundamental part of the UK’s constitutional framework, allowing the judiciary to ensure that executive power is exercised within the limits of the law.
Judicial review does not assess whether a decision is right or wrong in a moral or practical sense. Instead, it examines whether the decision:
- Complied with legal duties
- Stayed within the limits of legal authority
- Was made fairly and rationally
In short, judicial review focuses on how a decision was made, not necessarily the outcome of the decision itself.
Who Can Apply for Judicial Review?
A claim for judicial review can only be brought by someone with a sufficient interest in the matter. This is known as having standing. In immigration cases, this often means the individual directly affected by a visa refusal, removal direction, or administrative decision made by the Home Office.
NGOs and advocacy groups may also apply, particularly in cases of systemic unfairness or when public interest is clearly at stake.
Time Limits
Strict time limits apply to judicial review claims:
- For immigration and asylum cases: within 3 months of the decision
- For planning decisions: 6 weeks
- In all other public law matters: promptly, and in any event, within 3 months
Delays can result in the claim being struck out, regardless of its merit.
When Is Judicial Review Appropriate?
Judicial review is a remedy of last resort. You must normally have exhausted all other avenues of redress—such as appeals, internal reviews, or complaints—before turning to the courts.
It’s not available:
- Where a statutory appeal exists and has not been used
- To re-argue facts already decided by a tribunal or other body
- For purely private disputes (e.g., between individuals or businesses)
The Three Core Grounds for Judicial Review
The UK courts recognise three primary grounds for judicial review, based on a classification set out in the landmark case Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (commonly referred to as the GCHQ case):
- Illegality
- Irrationality
- Procedural Impropriety
These three categories cover most legal challenges to public authority decisions, though modern jurisprudence sometimes adds or reformulates grounds to reflect evolving constitutional and human rights standards. Let’s explore each in depth.
1. Illegality
A public authority acts illegally when it does something it has no legal power to do, or when it misuses the powers it does have.
Common examples include:
- Acting beyond statutory powers (ultra vires)
- Misinterpreting the law or applying the wrong legal test
- Failing to take account of relevant considerations
- Taking into account irrelevant factors
- Misusing discretion (e.g., applying rigid policies without considering individual cases)
Example in Immigration:
If the Home Office refuses an application by wrongly interpreting immigration rules, that decision may be unlawful. For instance, failing to properly consider exceptional circumstances under Article 8 ECHR could be a case of illegality.
Courts will scrutinise the legal basis for the decision and assess whether the public body acted within the boundaries of its lawful authority.
2. Irrationality (Also Known as Wednesbury Unreasonableness)
Irrationality refers to decisions so unreasonable that no sensible person, acting with due consideration, could have made them.
This standard derives from Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. A decision may be irrational if it:
- Defies common sense
- Lacks any logical foundation
- Is grossly disproportionate or inconsistent with its stated aim
Limits of This Ground:
Wednesbury irrationality is a high threshold. Courts are reluctant to intervene just because they would have decided differently. The decision must be outrageously defiant of logic or accepted moral standards.
In Practice:
In immigration, an irrationality challenge might succeed where, for example, the Home Office refuses an application on a ground that contradicts its own policy or factual evidence.
3. Procedural Impropriety
Procedural impropriety occurs when the decision-making process is unfair or unjust, even if the outcome might seem reasonable or legal.
This includes:
- Failure to consult where required
- Bias or appearance of bias
- Breach of the duty to give reasons
- Violation of the right to be heard (audi alteram partem)
- Ignoring rules of natural justice
Public authorities are expected to follow proper procedures, especially when the outcome significantly affects individuals’ rights.
Example:
If a decision-maker fails to provide an applicant with an opportunity to respond to adverse information before refusing a visa, this may amount to procedural unfairness.
Expanded and Evolving Grounds in Modern Judicial Review
While the traditional tripartite framework—illegality, irrationality, and procedural impropriety—remains central, modern judicial review has developed additional principles that supplement or refine these categories. Courts now consider broader constitutional values, human rights, and international obligations in their assessments.
These expanded grounds for judicial review include:
1. Proportionality
Originally a European law concept, proportionality has taken on increasing significance in UK public law, especially since the Human Rights Act 1998 came into force.
Proportionality asks whether:
- The objective is sufficiently important to justify the limitation of a right
- The measure is rationally connected to the objective
- A less intrusive measure could have been used
- The impact on the individual is not disproportionate to the public benefit
Proportionality is now applied in:
- Human rights cases (e.g. deportation interfering with Article 8 rights)
- EU law cases
- Some common law public interest reviews
This standard is more intensive than Wednesbury irrationality, offering stronger protection for individual rights.
Example in Practice:
A decision to remove a long-resident migrant with UK-born children might be legally correct under immigration rules, but disproportionate under Article 8 ECHR. Judicial review enables courts to assess whether such interference with family life is justified.
2. Legitimate Expectation
This ground arises when a public body leads someone to reasonably expect a certain decision or procedure—then fails to follow through without fair justification.
Types of legitimate expectation include:
- Procedural: Expecting to be consulted or heard
- Substantive: Expecting a particular outcome, e.g. being allowed to stay in the UK based on a longstanding policy
To establish a legitimate expectation, the applicant must show:
- A clear and unambiguous representation by the authority
- Reasonable reliance on that promise
- That the expectation was induced by the authority itself
- That overriding public interest does not justify departure from it
Immigration Example:
If the Home Office has a published policy of granting leave under a particular concession, but arbitrarily denies it, a claim of breach of legitimate expectation may be arguable.
3. Breach of the Duty to Give Reasons
While not every public body must give reasons for its decisions, fairness often requires that reasons be provided—especially where the decision affects fundamental rights or has significant consequences.
Failure to give adequate, comprehensible reasons can make a decision unlawful.
Application:
In immigration refusals, the reasoning must show a clear consideration of the facts, evidence, and legal tests. Vague or generic template letters may fall short of this standard and trigger review.
4. Breach of Convention Rights (Human Rights Act 1998)
The Human Rights Act makes it unlawful for public authorities to act in a way that is incompatible with Convention rights, unless required by primary legislation.
Commonly cited rights include:
- Article 8 – Right to private and family life
- Article 6 – Right to a fair hearing
- Article 3 – Protection from inhuman or degrading treatment
The Human Rights Act integrates international obligations into UK judicial review, expanding the grounds for challenge beyond domestic administrative law.
Common Pitfalls in Judicial Review Claims
Even when strong grounds for judicial review exist, many claims fail due to avoidable mistakes. Understanding these common errors can help applicants and advisors navigate the process more effectively.
1. Missing the Deadline
Failure to act promptly or within the relevant judicial review time limits (often just 3 months or less) is one of the most common and fatal errors. Courts enforce strict deadlines, and delays can lead to immediate dismissal—even in otherwise valid claims.
2. Choosing Judicial Review When an Appeal Exists
Judicial review is not a substitute for a statutory right of appeal. If an appeal route is available and hasn’t been used, the court will generally refuse to hear the case. Understanding whether judicial review is the correct legal remedy is critical.
3. Weak or Misunderstood Grounds
Applicants sometimes confuse a bad outcome with an unlawful decision. A decision can be harsh or unwelcome but still lawful. Judicial review is about legality, not the merits or fairness in the broader sense. The focus must always be on recognised grounds for judicial review like illegality or procedural unfairness—not personal disagreement.
4. Poorly Drafted Pre-Action Protocol Letters
The pre-action protocol (PAP) letter is a vital step in the judicial review process. It sets out your legal arguments and gives the public authority a chance to resolve the issue without litigation. Generic, rushed, or emotional letters often fail to persuade or lead to a constructive reply. Precise legal reasoning tied to the relevant grounds for judicial review is essential.
5. Insufficient Supporting Evidence
Every claim must be backed by clear documentary evidence: decision letters, correspondence, relevant policies, witness statements, etc. The absence of this evidence can undermine the claim even where legal errors exist.
6. DIY Applications Without Legal Representation
Judicial review is procedurally complex and legally technical. While it is possible to file a claim in person, doing so without expert legal advice greatly increases the risk of failure. Law firms like Salām Immigration provide crucial guidance to frame your case within the correct grounds for judicial review and comply with court requirements.
Frequently Asked Questions
What are the main grounds for judicial review in the UK?
The three recognised grounds for judicial review in the UK are:
- Illegality – when a public body acts outside or misuses its legal powers.
- Irrationality – also known as Wednesbury unreasonableness, when a decision is so unreasonable that no rational authority would ever make it.
- Procedural Impropriety – when the correct legal procedures are not followed, resulting in unfairness or bias.
These form the foundation for most judicial review claims, although modern law also incorporates proportionality, legitimate expectation, and human rights compliance.
How do I know if my case meets the grounds for judicial review?
To assess whether your case falls within the grounds for judicial review, ask:
- Was the decision made within the powers granted by law?
- Did the authority apply the law correctly?
- Were you given a fair opportunity to present your case?
- Was the decision-maker biased or unfair?
- Were your human rights engaged and potentially breached?
An experienced public law or immigration solicitor—such as those at Salam Immigration—can evaluate whether your case meets the legal threshold.
Can I bring a judicial review claim just because I disagree with a decision?
No. Disagreement with a decision is not sufficient. Judicial review is not about whether the decision was “right” or “wrong” in the everyday sense. It is about whether the decision meets legal standards under the grounds for judicial review, such as legality, fairness, or rationality.
What is the difference between an appeal and judicial review?
- An appeal usually challenges the merits of a decision.
- Judicial review challenges the lawfulness of how the decision was made.
Judicial review only applies where no statutory right of appeal is available, or after other remedies have been exhausted. If you’re unsure whether you should appeal or apply for judicial review, legal advice is essential.
Can human rights be a ground for judicial review?
Yes. Under the Human Rights Act 1998, you can bring a judicial review claim if a public authority has breached your Convention rights—such as the right to family life (Article 8) or the right to be free from inhuman treatment (Article 3). These form part of the grounds for judicial review when assessing lawfulness.
How long do I have to apply for judicial review?
Time limits vary, but in all cases the application must be made:
- Promptly; and
- Within 3 months of the date of the decision being challenged
In immigration cases, this deadline is often shorter—claims typically must be filed within 16 days of the decision, especially in fast-track removal scenarios.
Failure to act within the time limit will usually make your case inadmissible, even if you have valid grounds for judicial review.
What evidence do I need to support the grounds for judicial review?
You’ll need:
- A copy of the decision letter
- All correspondence with the public body
- Any policies or guidance that should have been followed
- Documentary evidence of how the decision affects you
- Witness statements (if relevant)
Your solicitor will draft detailed legal arguments based on these documents to show how the public authority acted unlawfully under one or more recognised grounds for judicial review.
Can I get legal aid for judicial review?
Legal aid may be available for judicial review claims in the UK, particularly in immigration, asylum, and human rights matters. Eligibility depends on the nature of the case and your financial circumstances. Salam Immigration can assess your eligibility and assist with the application process.
What happens if a judicial review is successful?
If the court finds that the decision was unlawful based on the grounds for judicial review, it can:
- Quash the decision (invalidate it)
- Order the authority to reconsider the case
- Prohibit the authority from acting unlawfully
- Declare your rights or the legal position
- In some cases, award damages, though this is rare
Note: The court won’t usually replace the decision with its own. It simply ensures the decision-maker follows the law properly.
Can I challenge a refusal to reconsider a Home Office decision?
Yes. If the refusal to reconsider shows evidence of illegality, bias, failure to follow policy, or a breach of rights, you may be able to apply for judicial review. Your claim must be based on one or more grounds for judicial review, such as procedural unfairness or an irrational refusal.
Need Advice on the Grounds for Judicial Review?
If you believe a public body has made a decision that may be unlawful, unfair, or irrational, our team at Salam Immigration is here to help. We specialise in judicial review cases—particularly those involving immigration, asylum, and human rights issues.
Don’t delay. Time limits for judicial review are strict.
Contact Salam Immigration today
