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Waiting for legal aid not an excuse for missing time limits


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In R (on the application of Kigen & Anor) v Secretary of State for the Home Department [2015] EWCA Civ 1286 the Court of Appeal considers the question of whether waiting for the outcome of an application for legal aid funding made to the Legal Aid Agency is sufficient justification for missing a time limit in public law court proceedings. The answer is a pretty resounding “no”.

The applicant in this case had missed the original three month deadline for an application for judicial review by one day. That may not sound like much but the deadline is actually “promptly” or no later than 3 months. Permission was refused twice, presumably for good measure, by Upper Tribunal Judge Kekic. An application for oral renewal was then made late, this time because a prompt application for legal aid funding had been made but was not decided until after the time limit expired. That application was also refused twice, this time by Upper Tribunal Judge Freeman.

The Court of Appeal is unimpressed with the replication but the Upper Tribunal certainly cannot be faulted for thoroughness when it comes to refusing permission.

The refusal was appealed to the Court of Appeal. Giving the leading judgment, Moore-Bock LJ finds at paragraph 25:

The first question for consideration, applying the principles to be derived from Denton and Hysaj, is whether the delay in this case was serious and significant. In the context of the short period of nine days allowed for lodging the request for reconsideration a delay of thirteen days cannot be regarded as trivial or insignificant. Delay of any kind in proceedings for judicial review is to be avoided as far as possible and the time allowed for applying for the reconsideration of an application for permission is kept deliberately short. In my view, although the delay was not of such a length as to affect greatly the progress of the proceedings, it called for a satisfactory explanation. The explanation provided, namely, that the appellants were awaiting the outcome of their application for legal aid, is not one that I think can be regarded as satisfactory in the circumstances of this case. The appellants’ solicitors were alive to the time limit, but appear to have taken no steps to ensure that the relevant form was lodged or to advise the appellants that they should lodge it themselves in order to preserve the position.

He goes on at paragraph 29 to reiterate the more general point:

It may be that, in the light of the older authorities to which I have referred, solicitors in general may have been under the impression that any delay awaiting a decision by the Legal Aid Agency would simply be ignored if an extension of time were required as a result. That is not the case and it is to be hoped that any such misunderstanding will have been dispelled as a result of the decision in this case. Those acting for parties in the position of these appellants 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. Failure to lodge the necessary request within the prescribed time may in future result in an extension of time being refused.

In fact the Court did extend time for the oral renewal in this particular case but only because of the degree of uncertainty. The Court makes clear that such extensions cannot be expected in future.

Firms might want to consider preparing “self service” packs for clients. These would hardly be an adequate replacement for proper legal documents, particularly for the types of vulnerable client who most require legal aid in the first place, but the only alternative is that yet further pro bono assistance from the lawyers who are always closest to insolvency — legal aid lawyers — will be required.

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.