The Supreme Court has ruled that immigration applicants may appeal a High Court refusal to extend the deadline for seeking judicial review without first obtaining special permission from the High Court.
The ruling arose from separate cases brought by applicants identified as B. and S. under section 5 of the Illegal Immigrants (Trafficking) Act 2000.
The legislation generally required an application for leave to seek judicial review to be made within 14 days. The High Court could extend that period where there was good and sufficient reason.
B. had applied to the High Court for an extension after the 14-day period expired. Mr Justice Finnegan refused the extension. A dispute then arose over whether B. could appeal that refusal directly to the Supreme Court or needed a High Court certificate confirming that the case involved a point of law of exceptional public importance.
A similar issue arose in S.’s proceedings. There, the High Court concluded that such certification was required and declined to permit an appeal concerning the individual refusal to extend time.
Mr Justice Geoghegan held that the statutory restriction did not cover decisions on applications to extend time.
The judge stressed that the Constitution gives the Supreme Court appellate jurisdiction from High Court decisions except where legislation clearly and unambiguously provides otherwise. Section 5 restricted appeals from decisions on applications for leave to seek judicial review and from judicial review decisions themselves. It did not expressly restrict an appeal against refusal to extend the deadline beforehand.
The court also distinguished an extension application from the later judicial review leave application. Questions about delayed letters, solicitors, language difficulties or other reasons for missing the deadline could be entirely separate from the merits of the proposed judicial review.
The Supreme Court therefore overruled the State authorities’ preliminary objections and held that both appeals could be heard without the special certificate required for appeals from substantive judicial review decisions.