The Supreme Court has held that two applicants may appeal High Court refusals to extend the strict 14-day deadline for bringing certain immigration judicial review proceedings without first obtaining a High Court certificate.
The appeals concerned B. and S., who had each sought additional time under section 5 of the Illegal Immigrants (Trafficking) Act 2000. Finnegan J had refused the extensions. The immediate issue before the Supreme Court was not whether either applicant should ultimately receive extra time, but whether an appeal against those refusals was legally available without the special High Court permission normally required for appeals under the section.
Section 5 requires specified judicial review applications to be brought within 14 days unless the High Court finds good and sufficient reason to extend time. It also states that High Court determinations of applications for leave to seek judicial review, or of the judicial review itself, are generally final unless the High Court certifies a point of law of exceptional public importance.
Mrs Justice McGuinness agreed with Mr Justice Geoghegan that an application to extend time should be treated separately from the eventual determination of the application for leave. If extra time is granted, the High Court must still go on to decide whether leave for judicial review should be given.
She stressed that access to the courts is a constitutional right enjoyed by non-nationals as well as citizens, although it may be regulated by legislation. Any legislation curtailing the ordinary right of appeal must therefore do so in clear and unambiguous language.
The judge also noted that the Supreme Court had previously upheld the constitutionality of the 14-day limit partly because the High Court retained a broad discretion to extend time where fairness required it.
The court therefore concluded that the statutory wording did not clearly prohibit an appeal from a refusal to extend time and that both appeals should be entertained.