The Queen (on the application of Frank Kigen and Janet Cheruiyot) (Claimant Appellant) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moore-Bick,Lord Justice Davis,Lord Justice Simon |
| Judgment Date | 11 December 2015 |
| Neutral Citation | [2015] EWCA Civ 1286 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C2/15/0695 |
| Date | 11 December 2015 |
[2015] EWCA Civ 1286
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Freeman
JR/10697/2014
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moore-Bick
Vice-President of the Court of Appeal, Civil Division
Lord Justice Davis
and
Lord Justice Simon
Case No: C2/15/0695
Miss Althea Radford (instructed by Duncan Lewis) for the appellant
Mr. William Hansen (instructed by the Government Legal Department) for the respondent
Hearing date: 28 th October 2015
This is an appeal against the order of Upper Tribunal Judge Freeman dated 12 th February 2015 dismissing the appellants' application for an extension of time in which to renew their application for permission to apply for an order under section 15 of the Tribunals, Courts and Enforcement Act 2007 (commonly described as a claim for judicial review).
The appellants, Mr. Frank Kigen and his wife, Mrs. Janet Cheruiyot, are seeking to establish that they are entitled to be granted leave to remain in the United Kingdom by reason of Mr. Kigen's descent from his maternal grandfather. It is unnecessary for the purposes of this appeal to recite the course of the proceedings which have led to the present appeal. Suffice it to say that the appellants are seeking to challenge by way of judicial review the latest decision of the Secretary of State rejecting their claim.
The Secretary of State's decision was conveyed to the appellants in a letter dated 30 th May 2014. In the ordinary way time for issuing proceedings for judicial review would have expired on 30 th August, but that was a Saturday and it is therefore accepted that in this case time expired on Monday, 1 st September 2014. The appellants issued their proceedings on Tuesday, 2 nd September, one day late.
The necessary application for permission was considered by Upper Tribunal Judge Kekic on the papers. She noted that the claim had been commenced out of time and declined to admit it because she did not think that a satisfactory explanation had been given for the delay. There are two formal documents recording her decision, one dated 3 rd October 2014 and one dated 3 rd November 2014, in identical terms. No explanation for that strange state of affairs has been given. Judge Freeman later recorded that the decision had been sent to the appellants' solicitors on 3 rd October 2014, but that they said they had not received it until 5 th November 2014. It seems more likely, therefore, that the second document was sent out rather than the first, but in the end nothing turns on that question. Like the judge, I am content to proceed on the basis that the decision in question was communicated to the solicitors on 5 th November 2014.
Any request to have the application for permission to be reconsidered at an oral hearing should have been lodged with the Upper Tribunal within 9 days after the notice of the decision to refuse permission had been sent to the appellants' solicitor. In this case, however, the request was not lodged until 27 th November 2014. In it the appellants asked for the necessary extension of time. That application was supported by a statement from the solicitor acting on their behalf, who said that an application to amend the scope of their legal aid certificate had been lodged with the Legal Aid Agency on 6 th November 2014. Unfortunately, it was not until 25 th November 2014 that the Legal Aid Agency decided to grant funding. Counsel was instructed on 25 th November and the request to have the application to be reconsidered was lodged with the Upper Tribunal on 27 th November 2014.
The case came back before Judge Freeman on 6 th February 2015. The first matter he had to deal with was the application for an extension of time for lodging the request for reconsideration. Although the point was not covered in the solicitors' statements, Judge Freeman was content to accept that time had not started to run until 5 th November 2015, when a letter informing them that permission had been refused had reached them. On that basis the appellants were out of time by thirteen days and he declined to grant an extension of time. In an extempore decision he referred to earlier cases in which delays caused by waiting for a decision from the Legal Aid authorities had been treated as providing a good reason for extensions of time and to the decision of this court in R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633, [2015] 1 W.L.R. 2472, in which the court considered delay in public law cases and proceedings conducted by litigants in person in the context of the decisions in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, [2014] 1 W.L.R. 795 and Denton v T. H. White Ltd [2014] EWCA Civ 906, [2014] 1 W.L.R. 3926. The judge granted permission to appeal to give this court the opportunity of considering whether delay awaiting a decision of the Legal Aid Agency still provides a good reason for failing to comply with time limits imposed by the CPR or orders of the court. It was not suggested that a different approach should be taken to failures to comply with the rules governing proceedings in the Upper Tribunal.
On behalf of the appellants Miss Radford submitted that the authorities supported the conclusion that delay waiting for a decision of the Legal Aid Agency should not be held against a person, at any rate so far as concerns public law proceedings in which fundamental rights are engaged. She also submitted that in any event the delay in this case was neither serious nor significant and that the appellants' solicitors had sought to obtain an extension of time before the time for lodging a request for reconsideration had expired. She also argued that the approach which applies to litigants in person generally should not be extended to those who are eligible for legal aid, and particularly not to those who eventually obtain it, because the very fact that they have been granted legal aid shows that it would be unreasonable to expect them to conduct the case as litigants in person. Finally, she submitted that Judge Freeman had been wrong in thinking that the appellants' case had been considered on its merits and should not therefore have taken that into account in exercising his discretion.
Mr. Hansen for the Secretary of State accepted that in former times the courts had been willing in public law cases to accept that delay awaiting a response from the Legal Aid authorities should not be held against litigants, although the same did not necessarily hold good in private law cases. He submitted, however, that in recent times the courts had adopted an increasingly strict approach to compliance with time limits, as exemplified in the leading decisions of Mitchell and Denton, as well as the decision in Hysaj. He also submitted that the court was entitled to take into account as part of the background the fact that the proceedings had been issued out of time, for which no satisfactory explanation had been offered.
We had before us two rather different versions of Judge Freeman's reasons for his decision. The first takes the form of a transcript of the extempore decision he gave at the conclusion of the hearing on 6 th February 2015. It states that it has been approved by the judge, so I assume that it was submitted to him in draft for his approval and that it contains any corrections he thought it appropriate to make. One might have thought, therefore, that it contained the judge's definitive reasons for his decision. On 12 th February 2015, however, a formal decision notice was given by the Upper Tribunal under rule 40 of the Tribunal Procedure (Upper Tribunal) Rules 2008 ("the Upper Tribunal Rules") refusing an extension of time for applying for the reconsideration of the application for permission to apply for judicial review, which set out at some length the judge's reasons for his decision. The reasons given in that order are broadly the same as those given in the earlier judgment, but are expressed in different terms and in one respect significantly so. It is confusing at best and potentially a source of dispute to have two differing records of the judge's reasons. Rule 40 of the Upper Tribunal Rules requires the tribunal to provide each party with a formal decision notice, but in a case where the judge has given his reasons extempore and in a form which he has since approved, it might be better if those reasons were to be incorporated into the formal decision notice.
Since both Mr. Hansen and Miss Radford sought to draw some support from the earlier authorities, it is convenient to begin with them. In Baker v Bowketts Cakes Ltd [1966] 1 W.L.R. 861, a case involving a claim for personal injury in which the writ had not been served within its initial period of validity, this court held that delays in obtaining legal aid had to be ignored when deciding whether there was good reason to extend the validity of the writ. In R v Stratford-upon-Avon District Councilex parte Jackson [1985] 1 W.L.R. 861, however, that decision, which involved private law proceedings, was said to have no relevance to claims for judicial review, which involve public law proceedings. Ackner L.J., giving the judgment of the court said:
" … it is a perfectly legitimate excuse for delay to be able to say that the delay is entirely due to the fact that it takes a certain time for a certificate to be obtained from...
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