Odubajo v Secretary of State for the Home Department
| Jurisdiction | Scotland |
| Judge | Lord Ericht |
| Judgment Date | 21 August 2020 |
| Neutral Citation | [2020] CSIH 57 |
| Docket Number | No 6 |
| Court | Court of Session (Inner House) |
| Date | 21 August 2020 |
[2020] CSIH 57
Extra Division
Lord Ericht
Gill (Lord), Report of the Scottish Civil Courts Review (B60185) (Scottish Civil Courts Review, Edinburgh, September 2009), Ch 12, para 51 (Online: www.scotcourts.gov.uk/docs/default-source/civil-courts-reform/report-of-the-scottish-civil-courts-review-vol-2-chapt-10---15.pdf?sfvrsn=4 (16 September 2020))
Scottish Government, Courts Reform (Scotland) Bill: Policy memorandum (SP Bill 46–PM) (Scottish Parliament, Edinburgh, February 2014), para 187 (Online: www.parliament.scot/S4_Bills/Courts%20Reform%20(Scotland)%20Bill/b46s4-introd-pm.pdf (16 September 2020))
Administrative law — Judicial review — Permission to proceed — Permission to proceed granted following decision of Lord Ordinary to allow petition to proceed out of time — Petitioner seeking to reclaim against decision of Lord Ordinary on basis that petition was not out of time — Whether reclaiming motion competent — Court of Session Act 1988 (cap 36), sec 27D
Adeyimi Odutola Odubajo presented a petition for judicial review seeking reduction of a decision of the Secretary of State for the Home Department refusing his further representations on asylum. On 7 January 2020, after an oral hearing on permission to proceed, the Lord Ordinary (Ericht) held that the petition was out of time, extended time and granted permission to proceed ([2020] CSOH 2). The petitioner reclaimed.
Section 27D of the Court of Session Act 1988 (cap 36), sec 27D, provides that where permission to proceed with a petition for judicial review has been refused after an oral hearing, or where permission is only granted in respect of particular grounds, the petitioner may appeal against the decision of the Lord Ordinary to the Inner House under that section within a period of seven days. Section 28 provides, “Any party to a cause initiated in the Outer House either by a summons or a petition who is dissatisfied with an interlocutor pronounced by the Lord Ordinary may, except as otherwise prescribed, reclaim against that interlocutor within such period after the interlocutor is pronounced, and in such manner, as may be prescribed.”
The petitioner sought to challenge a decision of the Secretary of State for the Home Department that further submissions he made in connection with a claim for asylum did not amount to a fresh claim. The decision letter of the Secretary of State was dated 5 June 2019 and was received by the petitioner on 7 June 2019. The petition for judicial review was lodged on 6 September 2019. At an oral hearing on permission to proceed, the Lord Ordinary held that the petition was presented outwith the three-month time-limit for commencing judicial review proceedings, as the date when the grounds giving rise to the application arose was the date of the decision letter and not the date when the decision letter was received. The Lord Ordinary held that it would be equitable to allow the petition to proceed out of time, as it was only one day late and there was no prejudice to the respondent, and granted permission to proceed. The petitioner reclaimed, on the basis that the Lord Ordinary had erred in holding that the...
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