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Testing Times.

Date: 26/02/2016 | Dispute Resolution

In one of the first reported cases on the new test to be applied before any application for Judicial Review can be brought, the Court of Session has dismissed the application and issued some guidance as to how the new test is to be applied. 

The Petition of Chennan Fei, 2016 CSOH 28 concerned a Chinese citizen who sought to judicially review the decision of the Immigration Tribunal to refuse to grant her application for leave to remain in the UK.

The new test the courts apply in considering whether to allow petitions for Judicial Review to proceed is that the case must have a “real prospect of success.”  Lord Boyd refused to grant permission for the case in question to proceed on this basis. He noted that “… the language of the test directs the court to the prospects of success rather than whether the case is stateable or arguable.”  Furthermore, in defining what was meant by ‘real’ in this context, his Lordship added that it “… simply means genuine rather than fanciful or speculative.  It is not a high standard but the court must be satisfied that there is some prospect of success”.

While the matter at hand was a decision of the immigration tribunal, this decision provides guidance on the test that will be applied to all petitions for Judicial Review at the early stages of court proceedings in determining whether they will be allowed to proceed any further.  As further decisions come out on this test, more guidance is likely to be formulated but it is encouraging to note at this stage that it seems to be applied in a manner that is consistent with the spirit of the underlying legislation.

The matter in this publication is based on our current understanding of the law.  The information provides only an overview of the law in force at the date hereof and has been produced for general information purposes only. Professional advice should always be sought before taking any action in reliance of the information. Accordingly, Davidson Chalmers LLP does not take any responsibility for losses incurred by any person through acting or failing to act on the basis of anything contained in this publication.

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