Can a Letter Before Claim (Pre-Action Protocol Letter) Reverse a Home Office Immigration Decision?

Receiving a negative decision from the Home Office regarding your immigration matter can be deeply distressing, not least because it creates a great deal of uncertainty regarding your future and that of your family members in the UK. Frustrating as it may be, it is important to keep a balanced perspective in such circumstances and take steps that will help your situation rather than hinder it. Indeed, writing an angry letter or making a phone call of complaint is not going to reap a positive outcome, but what are your options? Depending on your circumstances, background, future plans, and the reason for refusal, you may consider reapplying, issuing an appeal, or requesting a judicial review or administrative review. An immigration lawyer will be able to outline the options you have available and recommend the best approach given their experience and their knowledge of similar cases. And one of the first steps they may take when considering a legal challenge is to send a ‘Letter Before Claim, also referred to as a Pre-Action Protocol (PAP) letter, to the Home Office. In this article, we will explain the purpose of a ‘Letter Before Claim’ (Pre-Claim Protocol – PAP letter) and how this may help overturn a Home Office refusal.

What is a Letter Before Claim (aka Pre-Action Protocol Letter – PAP)?

A Letter Before Claim (LBC) refers to a letter typically written by an immigration lawyer or Solicitor to the Home Office on behalf of a client advising that legal action may be taken if a particular matter is not resolved satisfactorily. As the Home Office states, “Normally, a person who wishes to challenge a decision of the Home Office should write first to the department asking for the decision to be reviewed. This is called the pre-action protocol (PAP)”.

Letters Before Claim are not just reserved for immigration matters, indeed they can be used for other matters which may give rise to litigation. It is important to note that an LBC is not a legal court document, but they are widely used to bring a matter which could reach the court to a quick and speedy resolution. To ensure that the correct process, an immigration lawyer will follow the appropriate Pre-Action Protocol (PAP), as defined by the Ministry of Justice (MoJ) – i.e., the Pre-Action Protocol for Judicial Review.

The PAP states that an LBC must be sent before Judicial Review (JR) proceedings are brought against the Home Office. A JR is typically initiated when there are sufficient grounds to challenge a decision by the Home Office, and there is no formal right of appeal.

Pre-Action Protocol for Judicial Review

The MoJ states that the protocol “sets out a code of good practice and contains the steps which parties should generally follow before making a claim for judicial review”.

According to the MoJ, the protocol has a number of aims, as follows:

• To understand and properly identify the issues in dispute in the proposed claim and share information and relevant documents;
• To make informed decisions whether and how to proceed;
• To try to settle the dispute without proceedings or reduce the issues in dispute;
• To avoid unnecessary expense and keep down the costs of resolving the dispute; and
• To support the efficient management of proceedings where litigation cannot be avoided.

Drafting a Letter Before Claim in accordance with the Pre-Action Protocol for Judicial Review

An LBC will typically include:

• The date and details of the decision made by the Home Office
• The exact act or omission being challenged
• A clear summary of the facts
• The legal basis for the claim
• Details of any information that the claimant is seeking – and why this is needed

The letter should be kept as succinct as possible. This is because, in reality, lengthy letters will not be read in full given the time and workload of Home Office case officers. The main thrust of the letter should be to make it absolutely clear in as few words as possible what happened and precisely on which grounds this is incorrect. Preferably, this should be summarised in the first paragraph and expanded if needed later in the letter. This will ensure the case officer reads the relevant section. The letter should always refer to the specific immigration policy wording (including the rule/appendix/section).

What happens after a Letter Before Claim is sent?

The defendant (i.e., the Home Office) has 14 days to respond to the LBC. As the protocol says, “Defendants should normally respond within 14 days using the standard format at Annex B. Failure to do so will be taken into account by the court, and sanctions may be imposed unless there are good reasons. Where it is not possible to reply within the proposed time limit, the defendant should send an interim reply and propose a reasonable extension, giving a date by which, the defendant expects to respond substantively”.

The Home Office will then either concede (i.e., agree to the LBC) in full, concede in part, or not concede at all. According to the PAP, if they do concede in part or not at all, they are required to write a letter of response to:

• contain a new decision (if applicable), clearly identifying what aspects of the claim are being conceded and what are not, or give a clear timescale within which the new decision will be issued;
• provide a fuller explanation for the decision, if considered appropriate to do so;
• address any points of dispute, or explain why they cannot be addressed;
• enclose any relevant documentation requested by the claimant, or explain why the documents are not being enclosed;
• where documents cannot be provided within the time scales required, then give a clear timescale for provision.
• Confirm whether they will oppose any application for an interim remedy; and
• If the claimant has stated an intention to ask for a protective costs order, the defendant’s response to this should be explained.

Final words

PAP letters can lead to decisions being quickly overturned, but only if they are drafted carefully in accordance with the latest immigration law and guidance. For this reason, always engage an expert immigration Solicitor who can handle your claim against the Home Office on your behalf.