[2025] UKUT 181 (AAC)

in MM v CICA at [33] the Outer House was content to adopt the two-part process formulation in BC, but said:

“for myself I consider that it might often be more helpful to reverse the order in which the questions are answered, enquiring first why the applicant was unable to make his application earlier than he did and then going on to ask whether the circumstances preventing an earlier application could be characterised as exceptional. No point of principle arises, and the result should always be the same, but taking them in this order enables the court or tribunal to focus more intensely on whether the actual thing that prevented the applicant making his application earlier is properly to be characterised as exceptional.”

Accordingly, a Tribunal must consider the reason why an applicant says that he did not apply sooner. If it accepts that as the reason (i.e. is satisfied of that reason in accordance with paragraph 89), then it must consider whether it is satisfied that those circumstances were exceptional such that the applicant could not have applied earlier in the sense identified above.

However, ultimately the statutory wording is whether “due to exceptional circumstances the applicant could not have applied earlier”. The Tribunal should simply apply that language.

There is no need, and it would be unhelpful, to seek to put any further gloss on the ordinary words used: tribunals can be relied upon to determine whether the facts before them (which will vary from case to case) are such that there are exceptional circumstances which meant that an applicant could not have applied earlier. That is a question of fact for the Tribunal and its decision on that cannot be disturbed absent an error of law.

However, if and insofar as relevant, then the context of the Scheme and the relevant paragraph of it indicates that the intention is to require applicants, as a general rule, to make their applications in good time: as soon as reasonably practicable and in any event within 2 years. Notwithstanding that general rule, it may be relaxed in “exceptional circumstances” which mean that an applicant could not have applied sooner, that is where the circumstances are such that the Tribunal is satisfied that the applicant’s case should be treated as exceptional, i.e. an exception to the general rule which applies to everyone else.

In this case the Tribunal applied the correct test as above and its decision that time could not be extended was entirely permissible on the case before it.