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

Factual and Procedural Background

This appeal arises from an order of Upper Tribunal Judge Freeman dated 12th February 2015, which dismissed the appellants' application for an extension of time to renew their application for permission to apply for judicial review under section 15 of the Tribunals, Courts and Enforcement Act 2007. The appellants, a married couple, sought leave to remain in the United Kingdom based on descent from a maternal grandfather. They challenged the Secretary of State's refusal of their claim conveyed by letter dated 30th May 2014. The time limit for issuing judicial review proceedings expired on 1st September 2014, but the appellants issued proceedings one day late, on 2nd September 2014.

The initial application for permission was refused by Upper Tribunal Judge Kekic on the papers due to the late commencement and lack of satisfactory explanation for the delay. Confusion arose from two identical formal decisions dated 3rd October and 3rd November 2014; the decision was ultimately treated as communicated on 5th November 2014. The appellants sought reconsideration and an extension of time on 27th November 2014, supported by a solicitor's statement explaining delays caused by the Legal Aid Agency's decision-making process. The Legal Aid Agency granted funding on 25th November 2014, and counsel was instructed the same day.

Judge Freeman considered the extension of time application on 6th February 2015, accepting that time began to run on 5th November 2014 but found the appellants were 13 days late in requesting reconsideration and refused the extension. Permission to appeal this refusal was granted to clarify whether delay awaiting Legal Aid Agency decisions remains a good reason for extensions of time under the Civil Procedure Rules (CPR) or tribunal rules.

Legal Issues Presented

1. Whether delay caused by awaiting a decision from the Legal Aid Agency constitutes a good reason for granting an extension of time to comply with procedural time limits in judicial review proceedings.
2. The appropriate legal test and principles governing applications for extensions of time in public law claims, particularly in the context of litigants awaiting legal aid decisions.
3. Whether the appellants’ delay in lodging a request for reconsideration of permission to apply for judicial review was excusable and whether the discretion to extend time should be exercised in their favour.

Arguments of the Parties

Appellants' Arguments

• Delay caused by waiting for the Legal Aid Agency's decision should not be held against litigants in public law cases involving fundamental rights.
• The delay was neither serious nor significant.
• The appellants’ solicitors sought an extension of time before the deadline expired.
• The approach applicable to litigants in person should not extend to those eligible for and eventually granted legal aid, as they should not be expected to conduct proceedings on their own behalf.
• Judge Freeman erred by considering that the appellants’ case had been considered on the merits, which influenced his discretion improperly.

Respondent's Arguments

• Historically, courts accepted delay caused by awaiting legal aid decisions as a good reason in public law cases, but recent authorities (Mitchell, Denton, Hysaj) show a stricter approach to compliance with time limits.
• The court was entitled to consider the fact that the proceedings were issued late without satisfactory explanation as part of the overall circumstances.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Baker v Bowketts Cakes Ltd [1966] 1 W.L.R. 861	Delays in obtaining legal aid should be ignored when deciding on extensions to writ validity in private law claims.	Noted that this principle applies to private law and is not relevant to public law claims such as judicial review.
R v Stratford-upon-Avon District Council ex parte Jackson [1985] 1 W.L.R. 861	Delay caused by waiting for legal aid certificate is a legitimate excuse for delay in judicial review proceedings (public law).	Recognised as historically valid but questioned in light of more recent procedural developments.
Waddon v Whitecroft Scovell Ltd [1988] 1 W.L.R. 309	Delays caused by legal aid system are a factor to be considered, not an absolute excuse.	Held that such delays should be realistically assessed and factored into discretion.
Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537	Strict approach to compliance with procedural time limits.	Underpins the court’s modern strict stance on extensions of time.
Denton v T. H. White Ltd [2014] EWCA Civ 906	Three-stage test for granting extensions of time emphasizing seriousness of breach and explanation.	Applied as the governing principles for considering extensions of time.
R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633	Guidance on extensions of time in public law claims and litigants in person context.	Affirmed that public law claims should not be treated more leniently than private law claims regarding time limits.
ZP (South Africa) v Secretary of State for the Home Department [2015] EWCA Civ 1273	Delay awaiting legal aid decision should not normally be considered good reason for delay.	Supported the view that awaiting legal aid is not generally a good reason for extension.
Sacker v H.M. Coroner for West Yorkshire [2003] EWCA Civ 217	Delay awaiting legal aid may be a factor but not a complete answer for failure to comply with procedural requirements.	Referenced as authority limiting the weight given to legal aid delay.
Robert v Momentum Services Ltd [2003] 1 WLR 1577	Application for extension of time made before expiry of time limit may be treated more leniently.	Distinguished and found not applicable due to absence of formal extension application.

Court's Reasoning and Analysis

The court began by considering the historical treatment of delays caused by awaiting legal aid decisions, noting that older authorities treated such delay as a good reason for extension, especially in public law cases. However, since the introduction of the Civil Procedure Rules and subsequent case law emphasizing promptness and strict compliance with procedural rules (notably Mitchell and Denton), the court's approach has become less tolerant of delays.

The court emphasized that judicial review proceedings require prompt initiation and diligent pursuit, and there is no principled reason to adopt a more relaxed approach to time limits in public law cases compared to private law cases. The shortage of funds or waiting for legal aid is not a good reason for delay by itself.

The appellants’ delay of thirteen days in lodging the request for reconsideration was neither trivial nor insignificant given the short nine-day time limit. The explanation—that the appellants were awaiting a legal aid decision—was not satisfactory because the appellants’ solicitors failed to take steps to lodge the necessary form or advise the appellants to do so. Although the solicitors acted reasonably in dealing with the Legal Aid Agency, they did not adequately manage the procedural requirements.

The court also addressed the judge’s erroneous belief that the merits of the appellants’ claim had been fully considered and rejected previously, which improperly influenced the refusal of the extension. The court found this misunderstanding significant enough to set aside the judge’s discretion and exercise it afresh.

Balancing the interests, the court noted no prejudice to the Secretary of State from the delay but recognized prejudice to the appellants if the extension was refused. The court concluded that although awaiting legal aid decisions is not generally a good reason for delay, the particular circumstances and uncertainty justified granting the extension on this occasion.

The court cautioned that going forward, parties and practitioners must not assume delay caused by awaiting legal aid decisions will be excused and must comply strictly with procedural time limits.

Holding and Implications

The court ALLOWED THE APPEAL and granted a sufficient extension of time to enable the appellants to lodge a request for reconsideration of their application for permission to apply for judicial review at an oral hearing.

The decision clarifies that delay caused by awaiting decisions from the Legal Aid Agency will not normally constitute a good reason for extension of time under the Civil Procedure Rules or tribunal rules. It affirms the court's commitment to strict compliance with procedural time limits in judicial review proceedings, aligning public law procedure with private law standards. The ruling imposes a clear obligation on solicitors and litigants to proactively manage procedural deadlines regardless of legal aid status. No new legal principles were established beyond the application of existing case law to the specific facts of this appeal.