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When does the 3 month time limit for judicially reviewing a Home Office decision start?

09 January 2020 Iain Halliday Specialist Advice & Litigation

There is a 3 month time limit for lodging a petition for judicial review against a Home Office decision which does not attract a statutory right of appeal. When does this 3 month period start: on the date decision was made; or on the date the decision was received?

 

 

This was the question considered by the Court of Session in Adeyimi Odutola Odubajo v SSHD [2020] CSOH 2 earlier this week. It is an important issue as often there can be a long delay between the Home Office making a decision and actually sending this to the person it concerns.

The court decided that the 3 month time limit starts on the date of decision. This is because:

“It is an important principle in respect of good public administration that there should be certainty about the validity of administrative decisions. A time limit contributes to such certainty. Public authorities may, after the expiry of the time limit without a judicial review application having been made, proceed on the basis that the decision is a valid one. A third party who has an interest in the subject matter of the decision may also proceed on that basis. The starting of the calculation of the time limit from the date of the decision contributes towards that certainty. The starting of the time limit period at some later date upon which a petitioner has become aware of the decision is not conducive to that certainty. The public authority and any third party relying on the decision are unlikely to have any knowledge about when the petitioner has become aware of the decision and therefore will be unable to proceed with certainty after the passing of three months. Further, using the date of decision will generally allow the proceedings to progress more expeditiously once they are brought: there may be difficulties in proving the date on which the particular petitioner became aware of the decision, whereas the date of the decision will usually be non-contentious and will not require proof.”

However all is not lost for those who lodge their judicial review late, but within 3 months of receiving the decision. In such cases the delay in receiving the decision:

“…can be taken into account in considering whether to extend the time under section 27A (1)(b)… This is in line with the approach in European Union law cases. In such cases the court is obliged to use its discretion to extend the time limit so as to ensure the claimant has a period to bring proceedings equivalent to that which the claimant would have had if the time limit had run from the date on which the claimant knew, or ought to have known, of the infringement of EU law.”

The petition in this case was lodged within 3 months of receipt of the decision. The time limit was therefore extended and the judicial review allowed to proceed.

 

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