The Queen (on the application of Muhammad Khurram) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Coulson,Lord Justice Hickinbottom |
| Judgment Date | 31 January 2019 |
| Neutral Citation | [2019] EWCA Civ 80 |
| Docket Number | Case No: C7/2016/2312 |
| Date | 31 January 2019 |
| Court | Court of Appeal (Civil Division) |
[2019] EWCA Civ 80
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
UPPER TRIBUNAL (IMMIGRATION & ASYLUM CHAMBER)
UTJ Grubb
JR147272014
The Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Hickinbottom
and
Lord Justice Coulson
Case No: C7/2016/2312
Mr Paul Turner (instructed by Ropemakers Solicitors) for the Applicant
Mr David Yates (instructed by Government Legal Department) for the Respondent
Crown Copyright©
Introduction
This appeal concerns the rights and obligations encompassed by Articles 8ZA and 8ZB of the Immigration (Leave to Enter and Remain) (Amendment) Order 2000, as amended in 2013, (“the 2000 SI”), and in particular what constitutes valid service of a notice sent to “the last known place of abode”. The point matters in the present case because, if the notice in question was lawful and effective, the appellant had not right of appeal against the subsequent refusal of his application for leave to remain. By contrast, if the notice was unlawful and ineffective, the appellant's subsequent application for further leave was in time, and its refusal would give rise to a right of appeal.
The Factual Background
The appellant was born on 9 November 1980 and is a national of Pakistan. He was admitted into the UK as a Tier 4 (General) student on 9 February 2011. His sponsor was Cranford College (“the college”). He was granted further leave to remain as a Tier 4 student from 17 January 2013 to 13 June 2014.
On 4 September 2013 the college informed the respondent that the appellant had ceased studying with them. There was no consequential application by the appellant either in respect of a change of sponsor or for renewal on other grounds.
On 15 November 2013 Ms Jennifer Ranshaw of the respondent emailed the college asking for the appellant's last known residential correspondence address in the UK, his telephone number and his email address. This information was provided by the college on 18 November 2013. The correspondence address the respondent was given was 8 Gordon Road, High Wycombe, Buckinghamshire HP13 6ER (“the High Wycombe address”).
On 21 November 2013, the respondent wrote to the appellant at the High Wycombe address (“the curtailment notice”). The relevant part of the curtailment notice was in the following terms:
“ CURTAILMENT OF LEAVE
This decision has been made in line with the Immigration Rules and the Tier 4 policy guidance.
You were granted leave to enter as a Tier 4 General Student until 13 June 2014 in order to undertake a course of study at Cranford College.
However, the Home Office was informed by Cranford College on 04 September 2013 that you ceased studying with them.
Home Office records have been checked and there is no evidence that you have made an application to change your sponsor or made a fresh application for entry clearance, leave to enter or leave to remain in the United Kingdom in any capacity.
Therefore, as you have been excluded or withdrawn drawn from your course of studies, as notified by your Tier 4 sponsor, your leave is curtailed under paragraph 323A(a)(ii)(2) of the Immigration Rules until 20 January 2014.
Before your current leave to enter or remain expires you must either leave the United Kingdom or submit a fresh application for leave to remain.
If you leave the UK your leave to enter or remain will lapse under Article 13(3) of the Immigration (Leave to Enter and Remain) Order 2000 and you may require a visa to enter the UK.”
It is not disputed that the curtailment was sent recorded delivery to the High Wycombe address. The reference number was KR273086087GB.
It is the appellant's case that by November 2013 he had moved to a new address, namely:
“Flat A, Dalgignor, the Post Office, Baldock Road, Buntingford SG9 9AA”
I shall refer to this as “the Buntingford address”.
On 4 June 2014 the appellant made a further application to remain as a Tier 4 student. The application suggested that he completed his studies at the college but did not say where he intended to study in the future. The application also indicated that by then the appellant was aware of the curtailment notice, and it now appears that a copy of it had been sent to him in May 2014.
On 30 July 2014 the respondent rejected the appellant's application for leave to remain. As I have indicated, if the respondent is right and the curtailment notice was effective, then the appellant did not have leave to remain at the time of his application of 4 June and therefore has no right of appeal against the refusal of that application on 30 July. If the appellant is right and the curtailment notice was ineffective, then his leave to remain continued until 13 June and he would have had the right to appeal against the refusal to vary his leave. I should stress that, quite properly, at no time did either side address the underlying merits or otherwise of that prospective appeal.
The 2000 SI
The relevant articles of the 2000 SI, added by amendment in 2013 and dealing with the means by which a notice in writing can be given are as follows:
“ 8ZA.—Grant, refusal or variation of leave by notice in writing
(1) A notice in writing—
(a) giving leave to enter or remain in the United Kingdom;
(b) refusing leave to enter or remain in the United Kingdom;
(c) refusing to vary a person's leave to enter or remain in the United Kingdom; or
(d) varying a person's leave to enter or remain in the United Kingdom,
may be given to the person affected as required by section 4(1) of the Act as follows.
(2) The notice may be—
(a) given by hand;
(b) sent by fax;
(c) sent by postal service to a postal address provided for correspondence by the person or the person's representative;
(d) sent electronically to an e-mail address provided for correspondence by the person or the person's representative;
(e) sent by document exchange to a document exchange number or address; or
(f) sent by courier.
(3) Where no postal or e-mail address for correspondence has been provided, the notice may be sent—
(a) by postal service to—
(i) the last-known or usual place of abode, place of study or place of business of the person; or
(ii) the last-known or usual place of business of the person's representative; or
(b) electronically to—
(i) the last-known e-mail address for the person (including at the person's last-known place of study or place of business); or
(ii) the last-known e-mail address of the person's representative.
(4) Where attempts to give notice in accordance with paragraphs (2) and (3) are not possible or have failed, when the decision-maker records the reasons for this and places the notice on file the notice shall be deemed to have been given.
(5) Where a notice is deemed to have been given in accordance with paragraph (4) and then subsequently the person is located, the person shall as soon as is practicable be given a copy of the notice and details of when and how it was given.
(6) A notice given under this article may, in the case of a person who is under 18 years of age and does not have a representative, be given to the parent, guardian or another adult who for the time being takes responsibility for the child.
8ZB.—Presumptions about receipt of notice
(1) Where a notice is sent in accordance with article 8ZA, it shall be deemed to have been given to the person affected, unless the contrary is proved—
(a) where the notice is sent by postal service—
(i) on the second day after it was sent by postal service in which delivery or receipt is recorded if sent to a place within the United Kingdom;
(ii) on the 28th day after it was posted if sent to a place outside the United Kingdom;
(b) where the notice is sent by fax, e-mail, document exchange or courier, on the day it was sent.
(2) For the purposes of paragraph (1)(a) the period is to be calculated excluding the day on which the notice is posted.
(3) For the purposes of paragraph (1)(a)(i) the period is to be calculated excluding any day which is not a business day.
(4) In paragraph (3) “business day” means any day other than a Saturday, a Sunday, Christmas Day, Good Friday or a day which is a bank holiday under the Banking and Financial Dealings Act 1971 in the part of the United Kingdom to which the notice is sent.”
The Relevant Authorities
The leading authority on last known place of residence is Collier v Williams [2006] EWCA Civ 20; [2006] 1 WLR 1945. After a review of a number of authorities, not all of which we consistent, at paragraph 71 of his judgment, Dyson LJ said:
“What is the position where the address is one at which the individual to be served has resided at some time? The point does not arise for decision in the present case. But in view of the uncertainty that exists as to the meaning of “last known residence”, we think that it may be helpful if we express our view in particular on the interesting suggestion made by Mr Zuckerman. What state of mind in the server is connoted by the words “last known”? In our judgment, Mr Zuckerman's interpretation goes too far. As we have said, there is an important distinction between belief and knowledge. It is a distinction particularly well understood in the criminal law, but elsewhere too. The draftsman of the rules deliberately chose the word “known”. In our view, knowledge in this context refers to the serving party's actual knowledge or what might be called his constructive knowledge, ie knowledge which he could have acquired exercising reasonable diligence. We arrive at this conclusion on the...
To continue reading
Request your trial
-
R Mizanur Rahman v Secretary of State for the Home Department
...article 8ZA, it shall be deemed to have been given to the person affected, unless the contrary is proved.” 13 In R (Khurram) v SSHD [2019] EWCA Civ 80 the Court of Appeal was concerned with the meaning of “the last place of abode” in the 2000 Order. Coulson LJ said (at paragraph 28): “ Jav......