The Supreme Court has held that a person refused extra time to bring an immigration judicial review challenge can appeal that refusal to the Supreme Court under the legislation then in force.
Mr Justice Fennelly delivered his judgment on 30 January 2002 in joined proceedings involving anonymised applicants B and S. He agreed with the judgment of Mr Justice Geoghegan and said the appeals should be entertained.
The issue arose under section 5 of the Illegal Immigrants (Trafficking) Act 2000. That provision imposed a 14-day deadline for applications seeking judicial review of listed immigration decisions, while allowing the High Court to extend time where there was good and sufficient reason.
The same section restricted appeals from a High Court determination of an application for leave to seek judicial review unless the High Court certified a point of law of exceptional public importance.
The question was whether that restriction also applied when the High Court refused to extend the 14-day period.
Fennelly J held that it did not. He said an application for more time was distinct in principle from the substantive application for leave. The need for an extension arose only where an applicant was, or expected to be, outside the statutory time limit.
That distinction mattered because the Supreme Court had previously upheld the constitutionality of the short 14-day limit largely because the High Court retained a broad discretion to extend time and thereby prevent injustice in cases involving matters such as language difficulties, communication problems or access to legal advice.
Fennelly J also noted that an order granting an extension could be appealed by a respondent without being treated as a determination of the substantive leave application. Treating only a refusal of extra time as subject to the stricter appeal restriction would produce an inconsistent result.
The court therefore held that the appeals were properly before it. This judgment did not determine the underlying immigration or detention challenges themselves.