The three month time limit for bringing a petition for judicial review begins to run on the date on which the decision sought to be challenged is made, but if the decision is not received until a later date that can be taken into account in considering whether to extend the time, a Court of Session judge has ruled.
Lord Ericht gave his decision in allowing an application by Adeyimi Odubajo, challenging a decision of the Home Secretary regarding his application for asylum, to proceed although presented more than three months after the date of decision.
The decision, that his application was not a fresh claim, was made on 5 June 2019 and received by the petitioner's solicitor on 7 June; the petition was presented to the court on 6 September.
For the petitioner it was argued that until he was notified of the decision, he could not bring a challenge to the court; it was impossible for him to consider grounds of challenge.
Lord Ericht noted that s 27A(1) of the Court of Session Act required an application to be made before the end of three months "beginning with the date on which the grounds giving rise to the application first arise". The meaning of this provision had not previously been considered in a Scottish case. However, "It is an important principle in respect of good public administration that there should be certainty about the validity of administrative decisions... 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."
Having that certainty would also enable the proceedings to progress more expeditiously, without the need to establish whether they had been brought in time.
He ruled: "In my opinion the three month time limit under s 27A(1)(a) begins to run on the date on which the decision is made, but if the decision is not received until a later date, that can be taken into account in considering whether to extend the time under s 27A(1)(b)."
However the grounds on which the petition was based had sufficient merit for further consideration, and it would be equitable in all the circumstances to extend the period to the date on which the decision letter was received. "The delay is minimal and reflects the period between the date of the decision and the date of receipt. There is no prejudice to the respondents or any third party. As the proceedings were brought within that extended period, I find that this petition has been brought timeously."