R Mizanur Rahman v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | J Blackett |
| Judgment Date | 05 November 2019 |
| Neutral Citation | [2019] EWHC 2952 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4874/2018 |
| Date | 05 November 2019 |
[2019] EWHC 2952 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
HHJ Blackett
SITTING AS A JUDGE OF THE HIGH COURT
Case No: CO/4874/2018
Ms Hafsah Masood (instructed by Lawdale Solicitors) for the Claimant
Mr Colin Thomann (instructed by the Government Legal Department) for the Defendant
Hearing date: 22 October 2019
Approved Judgment
HHJ J Blackett sitting as a Judge of the High Court:
This application concerns the rights and obligations provided by articles 8ZA and 8ZB of the Immigration (Leave to Enter and Remain) (Amendment) Order 2000 as amended in 2013 (the “2000 Order”) and in particular what is meant by (a) the term “given” in the sense of how a decision is communicated to the person affected (in relation to service of a curtailment notice) and (b) “unless the contrary is proved” in relation to the notice being sent. The points matter in the present case because it is argued that if the curtailment notice was not validly “given” to the Claimant, then a subsequent decision by the Defendant to refuse an application for Leave to Remain on 21 June 2017 was unlawful and should be quashed.
On 22 May 2019 permission was granted to the Claimant to pursue a single ground for judicial review: that the presumption in article 8ZB of the 2000 Order was rebutted in respect of the curtailment notice dated 29 January 2016; and the Defendant's decision of 21 June 2017 did not properly take this into account.
The Claimant now seeks an order from the Court quashing the Defendant's decision of 21 June 2017.
The Agreed Facts
The Claimant entered the UK on 11 October 2008 with entry clearance as a Tier 4 student valid until 28 April 2010. He was pursuing a CIMA course at the London School of Business and Finance (LSBF). His leave was subsequently extended three times until 24 February 2017. Until July 2014 the Claimant lived at 13 Genoa House, Ernest Street, London E1 4RD, after which he moved to 14 Alton House, Bromley High Street, London E2 2BB. He informed the LSBF by updating his personal details electronically. He did not inform the Defendant of his change of address.
On 4 September 2015 the Claimant received an email from LSBF advising that its licence had been suspended. On 29 January he received a further email from LSBF informing him that they could not continue sponsoring existing students, that he would be contacted by UK Visas and Immigration (UKVI) giving details of next steps, and that his right to remain legally in the UK would be curtailed 60 days after the date of that letter. On 29 January 2016 the Defendant sent a curtailment letter by recorded delivery to the Claimant at his old Ernest Street address informing the Claimant that his leave to remain expired on 3 April 2016. On 1 February 2016 the letter was delivered. The proof of delivery shows a printed name of RAHMAN as the recipient and has some sort of indecipherable marking as a signature. This letter was returned by Royal Mail on 8 February marked ‘returned – moved – this person not living here anymore.’ The Defendant's log entry is annotated: ‘as the letter has been signed for by the applicant or family member decision is deemed as served.’
The Claimant states that he did not receive a curtailment letter but became aware that friends of his in a similar position had, so he telephoned the UKVI and emailed the LSBF several times without any success. Eventually, on 23 March 2016, he emailed the UKVI noting his Bromley High Street address, stating that he had not received a curtailment letter and asking them to send one so that he could gain admission to a new institution to continue his studies. The Defendant responded by letter the following day enclosing a copy of the original curtailment letter and stating: ‘we are unable to issue a new curtailment letter as Royal Mail track and trace shows that this letter was delivered and signed for from Whitechapel delivery office on 1 February 2016.’
On 30 March the Claimant wrote to the Defendant stating he had not signed for or received the original curtailment letter, having moved home two years before, and he requested a fresh curtailment letter to provide him reasonable time to find a sponsor. He received no immediate response and, on 1 April 2016, applied for leave to remain on compassionate grounds. That application was refused on 29 March 2017. The Defendant reconsidered that decision and refused it on 21 June 2017. Subsequently there were a number of further applications culminating in an application for indefinite leave to remain on the basis that he had 10 years' lawful residence and on compassionate grounds. That application was refused by the Defendant on 2 April 2019.
Issue to be determined
The issue to be determined is whether the curtailment notice of 29 January 2016 was ‘given’ to the Claimant. If it was, as is argued by the Defendant, this application for judicial review should be dismissed, noting that an alternative remedy exists in that he can appeal the 2 April 2019 decision. If it was not, the Court should consider whether the Defendant's decision to refuse the Claimant's application for Further Leave to Remain on compassionate grounds was unlawful and whether it should be quashed.
The Legal Framework
The Immigration Act 1971 section 4 states that the powers to (inter alia) vary or revoke leave to remain shall be exercised “by notice in writing given to the person affected.”
The meaning of section 4 was considered in Shoukath Ali Syed v SSHD [2013] UKUT 00144 IAC and in R(Javed) v SSHD [2014] EWHC 4426 (Admin). Both of those cases predated the coming into force of the 2000 Order. In Syed Upper Tribunal Judge Spencer said:
“In the absence of an order made by statutory instrument under section 4(1) of the Immigration Act 1971 dealing with the giving of notice of variation of leave here there is no right of appeal, the Secretary of State has to be able to prove that notice of a decision varying leave to remain under s3(3)(a) of the Immigration Act 1971 where there is no right of appeal was communicated to the person concerned for it to be effective…….. Communication would be effective if made to a person authorised to receive it on that person's behalf…..but the Secretary of State cannot rely upon deemed postal service.”
This was reinforced in Javed by Neil Graham QC, DHCJ, who said at paragraph 25:
“In my judgment however, merely to send a curtailment of leave letter to the person's address and rely on the receipt signed by another individual who happens to be present when the letter was delivered is manifestly insufficient. Such a letter is no ‘given’ to the person concerned as required by the statute. The burden of proving receipt lies on the Secretary of State; it is not for the person concerned to disprove receipt.
In those circumstances it seems to be entirely unsurprising that the regulations have now been amended so as to permit reliance on postal service.”
The 2000 Order addresses how notices of decisions are to be given. Article 8ZA provides for notice to be given by (inter alia) being “sent by postal service to a postal address provided for correspondence by...
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...out above are consistent with the decision in R (on the application of Mizanur Rahman) v Secretary of State for the Home Department [2019] EWHC 2952 (Admin), in which the validity of service of a notice of curtailment was in issue. The conclusion in that case was as “23. The Claimant became......
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