Solicitors will not be granted time extensions to apply for judicial review appeals because they are awaiting a Legal Aid Agency decision, judges have warned.

However, the Court of Appeal made an exception in The Queen (on the application of Frank Kigen and Janet Cheruiyot) v Secretary of State for the Home Department due to a ‘degree of uncertainty that surrounded the matter’.

Kigen and Cheruiyot were appealing an order of the Upper Tribunal (Immigration and Asylum Chamber) dismissing their application for an extension of time 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.

Requests to have an application for permission to be reconsidered at an oral hearing must be lodged with the Upper Tribunal within nine days after the notice of the decision to refuse permission has been sent to the appellants’ solicitor.

However, in this case the application was lodged with the tribunal 13 days after the notice, while the appellants awaited the outcome of their legal aid application.

Lord Justice Moore-Bick (pictured) said the delay was not long enough to ‘greatly’ affect proceedings, but said it ‘called for a satisfactory explanation’.

The explanation that the appellants were awaiting the outcome of their legal aid application was ‘not one that I think can be regarded as satisfactory in the circumstances of this case’.

Moore-Bick said it was difficult to criticise the appellants, ‘who no doubt followed the advice given by their solicitors, and it is fair to say that the solicitors acted with reasonable expedition in their dealings with the LAA’.

But he said those acting for parties in the appellants’ position ‘will in future need to take steps either to lodge the necessary form promptly on behalf of their clients or to advise them of the need to do so on their own behalf’.

In future, time extensions may be refused if requests are not lodged within the prescribed time, Moore-Bick said.

But given the ‘degree of uncertainty that surrounded the matter’ in the present case, Moore-Bick was ‘persuaded’ that to refuse an extension of time ‘would be to impose on these appellants greater prejudice than is justified by the delay’.

Moore-Bick allowed the appeal and granted a sufficient extension of time to enable the appellants to lodge a request to have their application for permission to apply for judicial review reconsidered at an oral hearing.

Lord Justice Davis agreed with the decision. He said he was persuaded that discretion should be exercised in favour of the appellants because their solicitors had ‘at least’ written to the Upper Tribunal in the interim to explain the delay in applying for an extension of time and ‘where there may well have been a perception’ that awaiting the LAA’s decision would, in itself, provide a sufficient justification for the delay.

‘For the future, however, practitioners and parties cannot proceed having any such expectation,’ Davis said.

‘On the contrary, they should proceed in the expectation that any explanation based on the proposition that the delay was “only” for a few days, whether or not coupled with an explanation that a decision from the LAA was awaited, will not be received with indulgence by the court.’