In Odubajo v Secretary of State for the Home Department [2020] CSIH 57, it was hoped that the Inner House of the Court of Session would provide some much-needed guidance on the vexed issue of when the three-month clock starts ticking to lodge applications for judicial review. Instead, it ruled that you cannot appeal against a successful grant of permission, which is bad news for people who wish to challenge a judge’s finding that their judicial review was late.

Background: judicial review deadlines in Scotland

Section 27A of the Court of Session Act 1988 requires that an application for judicial review in Scotland be made within three months, “beginning with the date on which the grounds giving rise to the application first arise”. In January 2020, the Lord Ordinary held that the clock starts to tick from the date a decision is made, even if the person involved hasn’t yet received it. This was quite a radical departure from what everyone thought, which was that you can hardly be expected to start challenging a decision until you know about it.

Both sides wanted the Inner House to weigh in. The problem was that, in Mr Odubajo’s case, the judge had exercised discretion to allow his judicial review to proceed despite finding that it had arrived one day late. The QCs representing Mr Odubajo and the Secretary of State agreed that he could nevertheless challenge the judge’s decision on when the three months began by way of a reclaiming motion. That would allow the Inner House to take up the question.

Inner House refuses to hear test case

The Inner House disagreed. Giving the lead judgment, Lord Pentland said that the Courts Reform (Scotland) Act 2014 was intended to create a “comprehensive” scheme for permission to apply for judicial review. In this comprehensive scheme, “there is nothing to suggest that an applicant who had been granted leave, like the present petitioner, could nonetheless reclaim because he was dissatisfied with a finding that the time limit for bringing proceedings had expired”.

The result means that Mr Odubajo’s test case cannot proceed. Examples were given of 19 other Scottish judicial reviews where inconsistent approaches had been taken about whether the clock ticks from the date of decision, or the date of posting, or the date of receipt of the decision. To clarify the situation, a test case will be needed where permission for judicial review has been refused rather than granted.

Reasoning has wider implications

The court’s finding on when a finding that a judicial review is out of time can be appealed is important in itself. It makes things really tricky, not just for immigration cases, but for every type of judicial review brought in Scotland. It would mean that if a judge mistakenly thought that a judicial review was out of time but granted discretionary permission to extend the time for lodging, the affected person could never challenge that decision.

This matters because a finding that a judicial review is technically out of time can weigh on a case even if it is allowed to proceed. For example, if the Home Office ends up pulling a decision early on in proceedings because it looks like they might lose, it can pull the “oh but they lodged it late” excuse to try and mitigate on expenses (costs, in England and Wales). That might occur if there needed to be detailed written arguments or an oral hearing on the time-bar point. In addition, in urgent removal cases, where it might look as if a judicial review was lodged late, even though it was in-time, a tired and fed-up judge at midnight must just attach a little extra weight to the timing issue and come down on the side of the Home Office.