The Queen (on the application of Masud Alam) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Floyd,Lord Justice Henderson,Lord Justice Phillips |
| Judgment Date | 16 November 2020 |
| Neutral Citation | [2020] EWCA Civ 1527 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case Nos: C7 2019 2272 C7 2019 1432 |
| Date | 16 November 2020 |
[2020] EWCA Civ 1527
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM
CHAMBER
Upper Tribunal Judges Finch and Freeman
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Floyd
Lord Justice Henderson
and
Lord Justice Phillips
Case Nos: C7 2019 2272 C7 2019 1432
Michael Biggs (instructed by Hubers Law) for the Appellants
William Hansen (instructed by Government Legal Department) for the Respondent
Hearing date: 8 October 2020
Approved Judgment
These two appeals, which we have heard together, raise the question of what is required “to give notice in writing of” a decision curtailing a person's leave to remain in the United Kingdom. In each appeal the appellant contends that he was not given notice of the curtailment decision, and that in consequence the power of the respondent, the Secretary of State for the Home Department (“the SSHD”), to curtail their leave was not validly exercised. The SSHD contends that, as she has done all that is required of her under the relevant legislation, it is for the appellants to prove that they were not given notice, and they have no real prospect of doing so.
The appellant in the first appeal is Masud Alam. The SSHD wrote to him on 20 October 2015 informing him that his leave had been curtailed so that it now expired on 22 December 2015 (“the October 2015 decision”). Mr Alam says that he did not receive the October 2015 decision until it was brought to his attention in connection with unrelated judicial review proceedings in 2018. On 26 September 2018 he lodged this application for judicial review in the Upper Tribunal (“UT”) challenging the October 2015 decision. The proceedings ultimately came before Upper Tribunal Judge (“UTJ”) Finch at an oral hearing on 3 June 2019. UTJ Finch refused permission to apply for judicial review in a reserved decision dated 17 June 2019. Permission to appeal to this court was granted by Sir Wyn Williams on 17 February 2020.
The appellant in the second appeal is Masud Rana. The SSHD wrote to him on 24 March 2015 informing him that his leave had been curtailed so that it now expired on 26 May 2015 (“the March 2015 decision”). Mr Rana says that he did not receive the March 2015 decision until it was brought to his attention in connection with other proceedings in 2018. On 4 November 2018 he commenced this application for judicial review in the UT which came before UTJ Freeman on the papers. By a decision dated 7 February 2019 UTJ Freeman refused permission to apply for judicial review and certified the application as totally without merit, thereby precluding an oral hearing. Permission to appeal to this court was given by Newey LJ on 8 November 2019.
Legal framework
The way in which the SSHD may curtail leave to remain is prescribed by section 4(1) of the Immigration Act 1971 (“the 1971 Act”), which provides, so far as material, that this power:
“…shall be exercised by notice in writing given to the person affected”.
In Syed v SSHD [2013] UKUT 00144 (IAC) UTJ Spencer pointed out that, whilst there were regulations which dealt with the giving of notice in writing of “immigration decisions” 1, there were no corresponding regulations dealing with notice in writing of a decision to curtail leave to remain. That was because section 82(2) of the Nationality Immigration and Asylum Act 2002 defined “immigration decision” so as to exclude a decision the effect of which was to leave the applicant
with some leave to remain. The notice in writing curtailing Mr Syed's leave had been twice sent by recorded delivery to his last known address and twice returned. In the absence of applicable regulations deeming service by post to be effective, effective notice had not been given to Mr SyedSubsequently, in R (Javed) v SSHD [2014] EWHC 4426 (Admin), there was evidence that the notice had been sent by recorded delivery to an address which Mr Javed had provided to the SSHD when making a previous application for extension of leave to remain, but had been signed for by someone other than Mr Javed. Neil Garnham QC, sitting as a deputy High Court judge, held that, in the absence of specific regulations, it had not been established that Mr Javed had been given notice of the decision.
Sections 3A and 3B of the 1971 Act, which were inserted by the Immigration and Asylum Act 1999, contain further provisions about leave to remain. Amongst these are section 3B(1) which gives the SSHD power to make further provision by order “with respect to the varying of leave to remain in the United Kingdom”; and section 3B(2)(a) which provides that an order under subsection (1) may provide for “the form or manner in which leave may be … varied”.
The SSHD proceeded to make the Immigration (Leave to Enter and Remain) Order 2000 (SI 2000/1161) (“the 2000 Order”). Article 8 of the 2000 Order as originally made provided that a notice giving or refusing leave to enter (as particularly defined) could, instead of being given in writing as required by section 4(1) of the 1971 Act, be given by facsimile or electronic mail; and that in the case of a notice giving or refusing leave to enter the United Kingdom as a visitor, it may be given orally, including by means of a telecommunications system. These provisions did not relate to the curtailment of existing leave to remain.
The 2000 Order was amended with effect from 12 July 2013 to contain further provisions dealing with the giving of notices. It was common ground that these amendments were made with a view to mitigating the effect of the decision in Syed and relaxing the requirements for effective service. Article 8ZA as so inserted provides how a section 4(1) notice in writing may be given to the person affected. It is headed “Grant, refusal or variation of leave by notice in writing” and provides so far as material:
“(1) A notice in writing—
…
(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 the age of 18 years 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.”
Article 8ZB is headed “Presumptions about receipt of notice.” It describes the effect of establishing that one of the methods of sending the notice in writing under Article 8ZA has been utilised:
“(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.”
It is worth noting a few points about Articles 8ZA and 8ZB at this stage. First, it is clear that at least the special deeming provision in Article 8ZA(4) was an attempt to provide for valid service in a case like Syed where successive attempts to serve by recorded delivery had failed. It allows for what the Home Office sometimes refer to as “service to file”, although it is not in any real sense service at all.
Secondly, the deeming provision in respect of failure or impossibility to give notice, paragraph (4) of Article 8ZA, contrasts with the methods of service in paragraphs (1) to (3) of that Article. Paragraphs (1) to (3) do not expressly deem the giving or...
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