Kigen & Anor, R (on the application of) v Secretary of State for the Home Department

Waiting for a decision on legal aid does not normally provide a good reason for missing a procedural time limit. It remains a relevant factor, but public law proceedings do not attract a more relaxed approach than private civil proceedings. Judicial review claims require particular promptness.

An application to extend time for requesting oral reconsideration of a refusal of permission for judicial review should be determined by the three-stage approach applicable to relief from sanctions. The court considers the seriousness and significance of the breach, the reason for it, and all the circumstances, including proportionality and prejudice. Practitioners must lodge the required form in time or advise clients to do so themselves.

The appellants sought judicial review of the Secretary of State’s refusal of leave to remain. Their judicial review claim was issued one day late, and permission was refused on the papers. Their request for oral reconsideration was then lodged 13 days after the applicable nine-day period because their solicitors had awaited a decision from the Legal Aid Agency.

Upper Tribunal Judge Freeman refused to extend time. He also proceeded on the mistaken understanding that the merits of the current claim had already been judicially examined and rejected. The appellants appealed against that refusal. The central questions were whether awaiting legal aid provided a good reason for delay, which principles governed the extension application, and whether the Upper Tribunal had properly exercised its discretion.

1. Appeal allowed. The Upper Tribunal’s exercise of discretion was flawed because its judge had been materially influenced by the erroneous understanding that the merits of the current claim had already been examined and rejected. The Court of Appeal therefore set aside that exercise of discretion and determined the extension application afresh.

2. Public law proceedings do not ordinarily justify an approach to procedural compliance substantially different from that adopted in private civil litigation. Judicial review proceedings must be commenced promptly and pursued diligently. Depending on the nature of the issues, an even stricter approach may be appropriate.

3. Waiting for the Legal Aid Agency to decide an application does not normally provide a good reason for delay. A person awaiting legal aid remains in essentially the same position as another litigant unable to afford representation and retains the right to act in person. Delay associated with legal aid may be considered as one factor, but it is not a complete answer to non-compliance.

4. A request for oral reconsideration of a refusal of permission is analogous to a notice of appeal because failure to lodge it terminates the proceedings. Applications to extend the relevant time limit should therefore follow the three-stage approach in Denton, with the guidance in Hysaj: assess the seriousness and significance of the breach, consider the explanation, and evaluate all the circumstances.

5. The 13-day delay was serious and significant when measured against the prescribed nine-day period. Awaiting legal aid was not a satisfactory explanation because the solicitors could have lodged the simple standard form or advised the appellants to lodge it. Their letters notifying the tribunal of their intentions did not amount to a prospective application for an extension.

6. Exceptionally, the balance of all the circumstances favoured an extension. The appellants themselves were difficult to criticise, their solicitors had acted with reasonable expedition towards the Legal Aid Agency, the Secretary of State identified no particular prejudice, and older authorities may have created uncertainty about the effect of legal-aid delay. Refusal would impose disproportionate prejudice. A sufficient extension was granted to permit oral reconsideration of the permission application. Davis and Simon LJJ agreed.

1. Court of Appeal (Civil Division): The appeal was allowed. The refusal of an extension was set aside and a sufficient extension was granted to permit a request for oral reconsideration.

2. Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Freeman refused to extend time for requesting oral reconsideration of the refusal of permission to seek judicial review under section 15 of the Tribunals, Courts and Enforcement Act 2007.

3. Upper Tribunal (permission on the papers): Upper Tribunal Judge Kekić declined to admit the judicial review claim because it had been commenced out of time without a satisfactory explanation.