Ashokkumar Dhandapani, R (on the application of) v Secretary of State for the Home Department

This is an appeal about the process for giving notice of the grant, refusal or variation of leave to remain in this country.

S.3 of the Immigration Act 1971, headed “General provisions for regulation and control”, provides, so far as relevant to this appeal:

“(1)

Except as otherwise provided by or under this Act, where a person is not a British citizen

(a)

he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, the Act;

(b)

he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period;

…

In the case of a limited leave to enter or remain in the United Kingdom, -

(a)

a person's leave may be varied, whether by restricting, enlarging or removing the limit on its duration, or by adding, varying or revoking conditions …”

S.4 of the 1971 Act is headed “Administration of control”. Subsection (1) provides, so far as relevant:

"The power under this Act to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers, and the power to give leave to remain in the United Kingdom, or to vary any leave under section 3(3)(a) (whether as regards duration or conditions) ... shall be exercised by the Secretary of State; and ... those powers shall be exercised by notice in writing given to the person affected ... "

Article 8ZA of the Immigration (Leave to Enter and Remain) Order 2000 (SI 2000/1161) ("the 2000 Order"), headed "Grant, refusal or variation of leave by notice in writing", 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.”

Article 8ZB, headed “Presumptions about receipt of notice”, provides:

"(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.”

In R (Alam) and R (Rana) v SSHD [2020] EWCA Civ 1527, Floyd LJ, with whom the other members of the Court agreed, put forward the following interpretation of Articles 8ZA and 8ZB (at paragraph 19):

“Article 8ZB(1) only creates a rebuttable presumption which arises if one of the methods of sending in Article 8ZA is followed. In those circumstances, whilst it is true that the drafting leaves much to be desired, I proceed on the basis that Article 8ZB (a) deems the use of the methods of sending in Article 8ZA to be the valid giving of notice and (b) deems that notice to have given on the specified day, but leaves the person affected (or for that matter the SSHD if the need arises) free to prove (a) that he was not in fact given notice and/or (b) that it was not given on that day.”

As Floyd LJ explained at paragraph 20,

“The issue which really divided the parties on this appeal was what amounts to the giving of notice. On the most generous approach (to the appellants) to this issue, the requirement for the giving of notice could mean that the person affected must become aware of the contents of the decision. On this approach the person affected must not only have the notice in his hands, but must also have opened the envelope or other medium by which it is delivered and read it. The difficulty with this approach is that those who do not trouble to open their mail, or collect recorded delivery items from the Post Office, or look at their emails, can effectively insulate themselves from being given notice.”

Floyd LJ reached the following conclusion:

“28.

In UKI (Kingsway) Ltd v Westminster City Council [2018] UKSC 67, [2019] PTSR 128, Lord Carnwath cited with approval at [15] the observation of Lord Salmon in Sun Alliance and London assurance Group v Hayman [1975] 1 WLR 177:

‘According to the ordinary and natural use of English words, giving a notice means causing a notice to be received. Therefore, any requirement in a statute or a contract for the giving of a notice can be complied with only by causing the notice to be actually received—unless the context or some statutory or contractual provision otherwise provides….’

29.

In my judgment, the giving of notice for the purposes of section 4(1) of the 1971 Act and the 2000 Order does not require that the intended recipient should have read and absorbed the contents of the notice in writing, merely that it be received. If it were not so, a failure to open an envelope containing the notice, for whatever reason, would mean that notice was not given. Similarly, I do not consider that the recipient must be made aware of the notice. Again, a recipient who allows mail to accumulate in a mailbox or on a hall table will not be aware of the notice. Proof of such facts should not enable the person to whom the mail is addressed to establish that the notice was not given, by being received.

30.

Receipt, and thus the giving of notice, can plainly be effected by placing the notice in the hands of the person affected. So much is recognised by Article 8ZA(2)(a). In my judgment, however, receipt in the case of an individual is not so limited. Receipt of an email, for example, will be effected by the arrival of the email in the inbox of the person affected. Likewise, documents arriving by post will normally be received if they arrive, addressed to the person affected at the dwelling where he or she is living, at least in the absence of positive evidence that mail which so arrives is intercepted. A document received at an address provided to the SSHD for correspondence is received by the applicant, even if he does not bother to take steps to collect it.

31.

It follows that the burden of proving the negative, non-receipt, in the face of convincing evidence leading to the expectation of receipt, will not be lightly discharged. In particular it will not be discharged by evidence, far less by mere assertion, that the notice did not come to the attention of the person affected,

32.

It is not unreasonable to assume that judges in the Administrative Court will often be faced with applications for permission to apply for judicial review based on factual allegations that litigants did not receive notices in writing or other documents curtailing their leave to remain, and that in consequence the exercise by the SSHD of her powers in relation to that litigant have not been validly exercised. Some examination of the merits is necessary at the permission stage. I think that the test which should be applied is whether the material before the court raises a factual case which, taken at its highest, could properly succeed in a contested factual hearing. If so, permission should be granted, subject to discretionary factors such as delay (compare by way of example R (FZ) v London Borough of Croydon [2011] EWCA Civ 59 at [6] to [9]).

33.

Drawing this together, when considering permission to apply for judicial review in such cases the following points should be borne in mind in the light of the above discussion:

(a)

where a method of sending within Article 8ZA (2) or (3) has been followed, the burden falls on the litigant to show he has a real prospect of establishing that the document was not received in the sense in which I have interpreted that word;

(b)

at the permission stage, the litigant will need to do more than show that the notice did not come to his attention, but establish how he proposes to show that it was never actually received in the sense which I have explained;

(c)

subject to discretionary factors such as delay, the question will be whether the material before the court raises a factual case which, taken at its highest, could properly succeed in a contested factual hearing;

(d)

each case will nevertheless depend on its own facts.”

The Home Office has provided guidance to its case workers entitled “Cancellation and Curtailment of permission” (“the Guidance”). The relevant version of the Guidance (version 2.0), included the following, under the heading “Service of non-appealable cancellation decisions to an email address”:

“In non-appealable cases only, where you have a recorded email address and particularly where records show the individual is not in the UK or previous attempts to serve the notice to a correspondence address have failed, you must where possible serve the notice to an email address that the individual or their legal representative provided for the purpose of correspondence with the Home Office.

….

When serving a cancellation decision to an email address, you must always

…

•

record on the casework system:

◦

the email address that you sent the notice

◦

the date on which you sent it

•

make sure the correct decision letter is attached to the email

•

if you receive a delivery receipt, record the delivery receipt response on the casework system to confirm service.”

A decision to cancel or curtail leave is “non-appealable” and may only be challenged by judicial review. Rule 28(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (“UTPR”) provides:

“… an application [for permission to apply for Judicial Review] must be made promptly and, unless any other enactment specifies a shorter time limit, must be sent or delivered to the Upper Tribunal so that it is received no later than 3 months after the date of the decision, action or omission to which the application relates.”

The appellant, who was born in 1997, is an Indian citizen. He arrived in the UK on 23 December 2021, having been granted leave to enter as a student from 14 December 2021 to 18 August 2023.

On 18 July 2022, the appellant’s sponsor, Sheffield Hallam University, informed the Secretary of State for the Home Department (“SSHD”) that he was no longer sponsored by the university and had stopped studying there.

On 23 March 2023, the SSHD cancelled the appellant’s leave by sending an email attaching a notice which began: “Your permission to enter as a student has been cancelled so that it now ends on 22 May 2023”. It continued by informing the appellant that he now had until 22 May 2023 “to either leave the UK or make another application to stay here”. It informed him that he did not have a right of appeal or administrative review against the decision, but added that, if he thought an error had been made in the decision, he could make an error correction request by following the process set out in guidance found on the gov.uk website, for which a link was provided. The notice included a summary of the reasons for the decision as set out in the previous paragraph. It added: “If you think you have a reason to stay in the UK that you have not yet told us, you must tell us now. If you do not tell us as soon as you can of any reasons why you should be allowed to stay, and you apply later, you may lose any right of appeal against a refusal of that application. If you want to seek legal advice you must do so now.”

The email enclosing the notice was sent to an address supplied by the appellant. It is his case, however, that he never received it.

On 24 June 2023, solicitors then acting for the appellant served a letter before claim on the SSHD under the Judicial Review Pre-Action Protocol in the following terms:

“The Applicant is a Tier 4 Student who arrived in the UK on 23 December 2021 to study at Sheffield Hallam University. The Applicant got himself enrolled at the University and started his course. However, due to issues surrounding course learning the Applicant was de-enrolled by the University.

Following the University notification, the Applicant tried his best to reach to a different provider however as her [sic] current visa condition only enables her to study at the Sheffield Hallam University no other institute enrolled him. Our client has been informed once he receives the curtailment notice from the UK VJ it's only then he could be given Confirmation of Acceptance for Studies (CAS) letter by a new institute.

Our client has been since then awaiting a curtailment notice before he can embark upon a course of further studies.

Details of Action the Defendant is expected to take:

The Respondent is expected to investigate this matter and serve a curtailment notice within next 14 days enabling the Applicant to switch to a different provider. Alternatively, if we will not receive a response by 14:00 PM, 10 August 2023 we have definite instructions from our client to lodge an application for Judicial Review.”

On 27 June 2023, the Home Office responded, stating that their record showed that the appellant’s leave was curtailed so as to be valid only until 23 May 2023 and that this had been served on him by email on 23 March 2023 “and is therefore deemed received”.

On 6 July 2023, the appellant’s solicitors wrote again to the Home Office, reiterating his account, reciting the relevant parts of Articles 8ZA and 8ZB of the 2000 Order and parts of the Guidance, and setting out grounds for judicial review, which included a denial that the appellant had received an email curtailing his leave on 23 March 2023. On 20 July, the Home Office replied, repeating its case that the curtailment notice was served via email on 23 March, and enclosing a copy of the notice.

On 4 September 2023, the appellant issued proceedings for judicial review in the Upper Tribunal (“UT”). His case set out in his statement of facts and detailed grounds of review was that the SSHD had failed to follow her policy guidance. The version of the Guidance quoted in the grounds was version 16.0. In fact, the version then in force was version 2.0 although there was no material difference between the versions. In the grounds of review, the appellant stated:

“The policy requires the Respondent to send the decision with a 'delivery receipt' request, record the delivery receipt response on CID to confirm service. The words used in the policy "must always" place an absolute obligation under the policy guidance on the Respondent to ensure the email delivery receipt is recorded on the GCID system to safeguard an Applicant against errors etc. Again, despite of specific request in the pre-action correspondence, the Respondent has not provided any evidence as yet.”

Having cited the law as set out above, the grounds continued:

“It is the Applicant's case is that he never received the claimed curtailment decision of 23 March 2023. The burden does not lie on the Applicant to prove a negative i.e. establish that he did not receive notice, but rather it is on the Secretary of State to prove the positive case, i.e. that he did. There exists no evidence of discharging the said burden.”

The application was supported by a statement signed by the appellant dated 1 September 2023 in which he stated:

“4.

Sometime in 2022, Sheffield Hallam University removed me from their enrolment due to difficulties I encountered with my course. Despite my efforts to transfer to another institution, my current visa restrictions only permit me to study at Sheffield Hallam University, making it impossible for other institutions to admit me to switch to a different institute. I further contacted a student consultant who advise me to wait until the Home Office serve me with a curtailment notice giving me 60 days to find a different sponsor.

5.

As I did not receive any correspondence from the Home Office On 24 June 2023, hence I contacted my Solicitor to write to [the] Home Office requesting them to make a curtailment decision.

6.

On 27 June 2023, my Solicitor received a response from the Home Office, stating that a notice had been sent via email around 23 March 2023 which curtailed my leave to 23 May 2023. This meant I was on overstayer and unable to make any sort of application.

7.

I want to reiterate that I have not received any notice or email regarding the curtailment of my leave. I want to confirm to the Court that I never received the Respondent's decision. I have no reason to deceive or provide false information to the Court.

8.

I wish to state that I was denied an opportunity by the Respondent to take admission in a different college. I attended many institutions to take admission, however, all of them requested a 60-day letter from the Home Office. Following receipt of the Home Office correspondence I approached for further studies and required information as to my status. I had to make a frank disclosure that currently I had no leave. After knowing the said information no college was willing to enrol me at the course.”

On 11 October 2023, the SSHD filed and served acknowledgment of service and summary grounds of defence. In the defence, it was stated:

“14.

The Applicant’s email address and date on which the decision was served is recorded in the casework system.

15.

The Respondent submits that delivery receipts are only required to be recorded if one is received. The nature of delivery receipts is that the recipient has the ability to determine whether a receipt is sent and receipts are not always received despite a request being sent by the Respondent.

16.

The Respondent submits that the Applicant has not substantiated his claim that the Respondent did not effect service of the decision under challenge.”

On 14 December 2023, permission to apply for judicial review was refused by a UT judge on the papers. On 21 December 2023, the appellant filed notice for renewing the application at an oral hearing. On 11 March 2024, that hearing took place before UT Judge Lesley Smith. At the end of the hearing, she announced her decision and reasons for refusing the application, substantively and on grounds of delay. She also refused an application for permission to appeal.

The reasons for the UT judge’s decision were expressed succinctly. I therefore set them out in full:

“(1)

The Applicant applies for permission to challenge the Respondent’s decision dated 23 March 2023 curtailing the Applicant’s student leave as at 22 May 2023 (“the Decision”).

(2)

Time in judicial review runs from date of decision not date of receipt. That is expressly so in this Tribunal by reason of the Tribunal Procedure (Upper Tribunal) Rules 2008. That is a different issue from that raised in Anufrijeva in the House of Lords or Secretary of State for the Home Department v Ahmadi [2013] EWCA Civ 512. Those judgments concern the issue whether a notice is effectively served and do not affect the general principle regarding the date from when time runs in a judicial review.

(3)

Here the Applicant did not seek an extension of time and there is therefore no good reason offered as to why the judicial review was not issued until 4 September 2023. Even assuming in the Applicant’s favour that he did not receive it as he asserts, at the latest he had it on 20 July 2023 and there is no good reason offered for failing to issue the judicial review promptly after that date. The delay is significant on either date.

(4)

As to whether there is any other reason to extend time, I take into account the substance of the Applicant’s case. He says that he did not receive the Decision until 20 July 2023. The Decision was sent to him by email at an address he had provided. Effective service is governed by the Immigration (Leave to Enter and Remain) Order 2000 (as amended) (“the 2000 Order”). As confirmed by the Court of Appeal in R (oao Alam and Rana) v Secretary of State for the Home Department [2020] EWCA Civ 1527, service by email is effective unless the presumption is rebutted by the Applicant. Here, there is nothing beyond mere assertion by the Applicant that he did not receive the Decision which is inadequate on the Court of Appeal’s view to discharge the burden of proving non-receipt.

(5)

The Respondent’s guidance on curtailment (Home Office Policy Guidance Curtailment (Version 16.0)) (“the Guidance”) is not arguably material to the issue of effective service. Even if it were, the Applicant’s case is not arguable. The Guidance requires the recording of a delivery receipt if one is received. That it might not be is explained at [15] of the Respondent’s summary grounds. The Guidance does not arguably require the recording of the fact of having requested a delivery receipt as is asserted by the Applicant. No inference can be drawn from the absence of any mention of a delivery receipt request in the CID notes. The Respondent is not arguably required by the Guidance to prove that he requested a delivery receipt.

(6)

The Applicant’s case is therefore without substantive arguable merit. I therefore refuse permission on the substance.

(7)

There being no good reason advanced for the delay in bringing this judicial review and with the absence of any other reason to extend time, I refuse permission also on grounds of delay.”

On 19 March 2024, the appellant filed a notice of appeal to this Court, advancing two grounds:

Under CPR rule 52.9(3)(a), a notice of appeal against a decision of the UT to refuse permission to apply for judicial review must be filed within 7 days of the decision of the UT refusing permission to appeal to the Court of Appeal, where that decision was made at a hearing. In the present case, the notice of appeal to this Court was filed a day late, on 19 March, without any application being included within the appeal notice for an extension of time. In the appeal notice, the order under appeal was stated to have been made on 12 March. On 2 June 2024, the SSHD filed a response under PD52C paragraph 19, asserting that the appeal notice had been filed out of time and that no application for an extension of time had been made in the appeal notice. He also objected to the reference in the appellant’s skeleton arguments to two additional statements which had not been before the UT and for which the appellant had not sought permission to adduce on appeal.

In a letter to the Civil Appeals Office dated 6 June 2024, the appellant’s solicitors contended that, although the UT judge had announced her decision on 11 March, its written notice with reasons was promulgated on the following day, that time for bringing an appeal ought to start on the date the decision notice was handed down, and that the appeal notice in this case was therefore filed in time. Alternatively, they sought an extension of time on the grounds that they delay was “marginal”. So far as the statements were concerned, the appellant’s solicitors stated that they were not seeking to rely on them to argue that the UT erred in law, but had provided them “in accordance with our duty to present full and accurate representation of all material facts”.

On 5 August 2024, permission to appeal was granted by Nugee LJ on both grounds. He adjourned the question of an extension of time to the hearing of the appeal.

On 3 September 2024, the SSHD filed a respondent’s notice inviting this Court to uphold the UT’s decision on other grounds:

“The appellant’s ground for judicial review were not properly arguable with a realistic prospect of success in the light of Articles 8ZA and 8ZB of the Immigration (Leave to Enter and Remain) Order 2000.

Without prejudice to the generality of the foregoing, the Court of Appeal was correct in R (Alam) and R (Rana) v SSHD [2020] EWCA Civ 1527 at [30] to observe that, for the purposes of Articles 8ZA and 8ZB of the 2000 order, notice of a decision by email is constituted by receipt which is effected by the arrival of the email in the email inbox of the person affected and, given this, but in any event, the evidence before the UT did not give rise to a factual case which, taken at its highest, could properly succeed in a contested factual hearing.”

On 24 January 2025, the appellant’s solicitors filed an application notice in form N244 asking this Court to make the following order:

“(1)

If the appellant’s notice was filed out of time, time should be extended.

(2)

If the appellant requires permission the appellant has permission to rely on his witness statement dated 4 April 2024 and witness statement of his sponsor dated 19 April 2024.”

The notice set out reasons for inviting the Court to grant these applications and proposed that it should hear submissions on them at the appeal hearing.

At the outset of the hearing Mr Zane Malik KC for the appellant identified four issues for the Court:

After discussion between the Court and counsel, it was agreed that the focus of the hearing should be on the third issue – the substantive issue. The Court indicated that, if Mr Malik was right that, as a matter of principle, his client had an arguable case that the notice was not properly served, the Court would be disinclined to prevent the claim proceeding simply on the grounds that the appeal notice was filed a day late. Although Mr Biggs had opposed any extension of time in his skeleton argument, he did not press the point in the light of our indication. We also indicated that our prima facie view was that the further evidence on which the appellant now sought to rely, which we had read de bene esse, did not satisfy the test in Ladd v Marshall [1954] 1 WLR 1489. It seemed to add little to the merits of the appeal under ground 2 and, as Mr Biggs submitted, the information in the statements was plainly available prior to the hearing before the UT. On this issue, Mr Malik did not press the point in the light of our indication.

Mr Malik started his submissions on the substantive issues by addressing the law. He submitted that the “date of the decision” to cancel a person’s leave to remain from which the time for bringing a judicial review claim runs is the date on which the notice of the decision is served on the person affected. He relied on the wording of s.4(1) of the 1971 Act set out above, which provides that the powers under the Act to give or cancel leave “shall be exercised by notice in writing given to the person affected”. He stressed in particular the word “given”. Unless and until notice in writing is “given” to the person affected, there is no valid grant, refusal or variation of leave to remain.

In support of this proposition, Mr Malik cited the decisions of this Court in Secretary of State for the Home Department v Ahmadi [2013] EWCA Civ 512 [2014] WLR 401 and Mehmood v Secretary of State for the Home Department [2015] EWCA Civ 744 [2016] 1 WLR 461. In Ahmadi, Sullivan LJ said, at paragraph 22:

“Section 3 [of the 1971 Act] confers the power to give and to vary leave to remain. The first part of section 4(1) provides that this power shall be exercised by the Secretary of State. The second part of section 4(1) provides that the power "shall be exercised by notice in writing given to the person concerned." The notice in writing is not a subsequent step following the exercise of the power, it is the way in which the power is to be exercised.”

In Mehmood, Beatson LJ said, at paragraph 42:

“… section 4 of the 1971 Act explicitly provides that the power to give leave to remain or to vary any leave "shall be exercised by notice in writing given to the person affected". Accordingly, the fact that internally the Secretary of State may have decided to refuse Mr Ali's application to vary his leave on 7 July is legally irrelevant. What is legally relevant is the date and time of the service of notice in writing to the person affected. Until then there is legally no decision.”

Mr Malik submitted that this is an example of the fundamental principle, articulated by Lord Steyn in R (Anufrijeva) v. Secretary of State for the Home Department & Anor [2003] UKHL 36 at paragraph 26:

“Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so.”

Mr Malik submitted that the 2000 Order had to be read in the context of the requirement laid down in primary legislation that unless and until notice is given to the person affected there is no decision to grant, refuse or vary – including, as in this case, cancel – leave to remain in the country. Article 8ZA(1) and (2) provides that notice may be “given” inter alia if it is “(d) sent electronically to an e-mail address provided for correspondence by the person or the person’s representative”. Article 8ZB(1)(b) provides that, where notice is sent by email, it shall be deemed to have been given to the person affected, unless the contrary is proved. Mr Malik submitted that “sending” is not “giving” and that, without the presumption created by Article 8ZB, Article 8ZA would be ultra vires. The provisions of the secondary legislation are only rendered consistent with the scheme of the primary legislation by the inclusion of the rebuttable presumption that a notice sent by email is given to the person affected on the date it is sent. The person affected may rebut it by demonstrating that the email has not reached him. Determining whether or not the presumption is rebutted is the task of the fact-finding tribunal.

Mr Malik acknowledged that Floyd LJ in Alam and Rana had stated that the claimant would have to demonstrate that he has “a real prospect of establishing that the document was not received” and that “at the permission stage, [he] will need to do more than show that the notice did not come to his attention, but establish how he proposes to show that it was never actually received”. He emphasised the test as expressed by Floyd LJ that “the question will be whether the material before the court raises a factual case which, taken at its highest, could properly succeed in a contested factual hearing”. Mr Malik submitted that this was fundamentally a matter of evidence. By way of analogous example, he cited the decision of this Court in R (Kalsi & Ors) v SSHD [2021] EWCA Civ 184, which concerned giving notice of a decision on the administrative review of a refusal of leave to remain. The provisions governing service of such decisions set out in an appendix to the Immigration Rules are in the same terms as Articles 8ZA and 8ZB of the 2000 Order. In that case, notice of the decision had been sent by recorded delivery. Although receipt of the delivery had been signed for by someone at the address, the appellant asserted that it had not reached him so notice had not been “given”. In her judgment with which the other members of the Court agreed, Elisabeth Laing LJ had acknowledged that such an assertion was open to him, saying (at paragraph 74):

“proper postal service is taken not only to show that the decision arrived at the address, but, further, that the decision was 'given' to the applicant. However, that assumption can be displaced by evidence to the contrary. That must include evidence showing that, in fact, the decision was not 'given' to the applicant.”

In this context, Mr Malik also cited the judgment at first instance of Sheldon J in R (Escobar) v SSHD [2024] EWHC 1097 (Admin). In that case, the claimant was given permission to bring a claim for judicial review of a decision to detain and remove him.  Although a notice of curtailment of leave to remain had been sent to the claimant’s email address, the claimant contended that he did not see the email message containing it and that the email was not in his inbox. He suggested that it may have been deleted by his estranged wife, who had access to the email account. In his judgment, Sheldon J described Floyd LJ’s observation about a receipt of an email in paragraph 30 of Alam as obiter and held that it was “permissible on the facts of a particular case for an applicant to seek to persuade the Secretary of State, and subsequently the Court or relevant tribunal, that the email was intercepted before it could be read”. In the event, Sheldon J proceeded to find on the facts in Escobar that the claimant in that case had “not come close” to demonstrating that the presumption was rebutted. Mr Malik submitted, however, that Sheldon J’s observations were correct and should be endorsed by this Court.

Turning to the grounds of appeal, and dealing first with ground 2, Mr Malik argued that the UT had wrongly proceeded on the basis that the appellant’s case was no more than a mere assertion that he did not receive the notice dated 23 March 2023 and that this was insufficient to rebut the presumption. He made a number of submissions in support of this ground.

First, he submitted that the appellant’s statement to the effect that he had not received an email containing the curtailment decision, endorsed with a statement of truth, was more than a mere assertion.

Secondly, he relied on the appellant’s evidence in his first statement that, having received no correspondence from the Home Office, he asked his solicitor to write the letter before action dated 24 June 2023, requesting that a curtailment notice be served within 14 days enabling him to switch to a different provider. Mr Malik submitted that he would not have taken this action had he received the notice. The terms of the letter were consistent with the appellant’s case that he had not received the notice.

Thirdly, he contended that, given the appellant’s wish to remain in this country, it would have been absurd, had he received the curtailment notice, to have done nothing about it, and allowed himself to become an overstayer, putting himself in the position of being unable to make an application for further leave to remain.

Fourthly, Mr Malik relied on the fact that there was no reference to a delivery receipt on the SSHD’s casework record. As set out above, this point featured prominently in the detailed grounds of review drafted on behalf of the appellant, in which emphasis had been placed on what was said to be a failure by the caseworker to comply with the Secretary of State’s policy guidance about a delivery receipt. In submissions, Mr Malik stressed that he was not making a public law challenge. The fact that the casework record contained no reference to a delivery receipt being either requested or received was, however, relevant to the question whether notice had been given and was capable of providing support to the appellant’s case that it had not.

The UT judge had therefore been wrong to say that there was “nothing beyond mere assertion by the appellant that he did not receive the decision”. Applying the approach prescribed by Floyd LJ in Alam and Rana, the appellant was entitled to be granted permission to apply for judicial review if his factual case, taken at its highest, was capable of succeeding at a substantive contested hearing. Mr Malik described this as a modest threshold which was crossed in this case. Either the appellant’s evidence is correct or he is engaged in a complex deceit of the SSHD and the court. That is an issue to be determined by a fact-finder at a hearing of the judicial review claim. It was an error for the UT judge to refuse permission to bring the claim on the grounds that the appellant’s evidence was inadequate.

Turning to ground 1, Mr Malik submitted that, by saying in paragraph 2 of her reasons that “time in judicial review runs from the date of the decision not the date of receipt”, the UT judge had wrongly proceeded on the basis that time for the appellant to bring the claim started to run on 23 March 2023 when the SSHD took the decision to curtail his leave to remain. This failed to take account of the principles in Ahmadi and Mehmood cited above. If it is correct that notice of the curtailment was only given to the appellant on 20 July when a copy of the notice dated 23 March was included in a letter from the Home Office to his solicitors, the judicial review claim filed on 4 September 2023 was brought within the three-month time period. Contrary to the UT judge’s interpretation of the position in paragraph (3) of her reasons, the appellant was under no obligation to seek an extension of time nor provide a “good reason” why the claim was not issued until 4 September.

In reply, Mr Michael Biggs for the SSHD sought to extract four propositions from the decision in Alam and Rana. First (paragraph 19), the combined effect of Articles 8ZA and 8ZB is that there is a rebuttable presumption that notice is given where it is sent using the relevant method in Article 8ZA (b) to (f) Secondly (paragraphs 28 to 30), notice is “given” when it is “received”. The question therefore is whether there was evidence to rebut the presumption of receipt. Thirdly (paragraph 30), there is receipt where the method of giving notice is completed. Fourthly (paragraphs 31 to 33), there is a weighty burden on a person seeking to rebut the presumption.

Mr Biggs submitted that, where service is effected by email, the method of service concludes when the email arrives in the recipient’s inbox. He acknowledged that there was scope for interception to prevent receipt of the notice in the case of physical mail after delivery at the address, but not in the case of email after arrival in the inbox. He accepted that it was possible, for technical reasons, for an email not to arrive in the inbox, but submitted that, after it arrived, the method of service provided for in Article 8ZA(2)(d) was concluded. The rules provided “bright lines” which were necessary for good administrative reasons, even if they sometimes resulted in hard outcomes.

Mr Biggs refuted the suggestion that the giving of notice by email could be precluded if it was intercepted after arriving in the inbox. He submitted that this was not conceptually possible because it conflated knowledge of the contents of the email with the idea of receipt of the email. All that was required was that the individual had the opportunity of gaining knowledge of the contents. Mr Biggs submitted that the observations of Floyd LJ in Alam and Rana, with which other members of the Court agreed, as to what constitutes receipt by email is part of the ratio decidendi of those appeals, because it formed a necessary part of the Court’s reasoning in support of its decision to dismiss the appeals, and is therefore binding on this Court. He therefore invited this Court to disapprove Sheldon J’s observation in Escobar that a cancellation decision received into the email inbox of the person affected could be “intercepted”. He submitted that allowing for the possibility of interception would undermine the purpose of the 2000 Order as it allowed for a person affected by a notice to claim that it had been deleted inadvertently or by a third party, which was, in Mr Biggs’ words, “an obvious avenue of abuse for the unscrupulous or desperate”.

On the facts of this case, Mr Biggs submitted that the evidence adduced by the Secretary of State led to a clear inference that the email was received by the appellant. He relied on the terms of the email, the fact that the appellant’s email address was correctly recorded on the SSHD’s casework system, and the entry in the record showing that the email containing the letter had been dispatched. This amounted to compelling evidence that the email had been sent and in the ordinary event that amounts to compelling evidence that it was received. He described the evidence in the appellant’s first statement as no more than a bare denial and at a high level of generality. He pointed out that there were inconsistencies between the solicitor’s letter of 24 June 2023 and the later statements which the appellant now sought to file as fresh evidence on appeal (although Mr Biggs accepted that, as he was opposing the application to admit that evidence, this point was no more than rhetorical). He submitted that it was open to the UT judge to conclude on the evidence that there was no realistic prospect of the appellant succeeding at trial. Mr Biggs added that the evidence in Escobar was stronger, yet Sheldon J at trial had found it had “not come close” to rebutting the presumption. He submitted that the evidence in both cases considered by this Court in Alam and Rana was stronger than the evidence in the present case, yet in neither case was it held sufficient to justify granting permission.

On the issue of the delivery receipt, Mr Biggs pointed out that the appellant was no longer contending that the decision to curtail leave was made unlawfully because the SSHD had failed to comply with her policy. In answer to questions from the Court, however, he acknowledged that the SSHD was unable to say whether a delivery receipt had been requested. It was normal practice for a receipt to be requested but there was no provision on the casework system for a record to be made that a delivery receipt had been requested. It only allowed the caseworker, in compliance with the Guidance, to record the response to the delivery receipt request. Mr Biggs drew attention to the observation in paragraph 15 of the summary grounds of defence (quoted above) that “the nature of delivery receipts is that the recipient has the ability to determine whether a receipt is sent and receipts are not always received despite a request being sent”. Mr Biggs conceded, however, that one possible inference from the fact that there is no record of a delivery receipt on the casework system was that it had never been requested. He accepted the proposition put by Peter Jackson LJ that this was bound to be relevant to the degree of improbability of the individual’s case that they never received the notice.

Mr Biggs submitted that the UT judge was therefore entitled to find that the evidence before her, taken at its highest, did not create a realistic prospect of success on the appellant’s case that he did not receive the cancellation decision on 23 March 2023 and therefore to refuse the application for permission to apply for judicial review. Accordingly ground 2 should be dismissed.

Mr Biggs submitted that in those circumstances, the matters raised under ground 1 of the appeal were wholly academic. In a supplementary skeleton argument, however, and in submissions developed in oral argument, he argued that in any event there was no merit in ground 1. There was no reason why the words used by the Tribunal Procedure (Upper Tribunal) Rules should not be given their ordinary meaning, so that time started to run from the date the decision to curtail leave was made rather than the date on which it came to the knowledge of the person affected. Mr Biggs sought to draw a distinction between what he called the “factual decision” and the “legally valid decision” as described in Ahmadi and Mehmood. The key date for calculating the time for bringing a judicial review claim was the date of the Secretary of State’s “factual decision” to curtail leave and not the date on which notice of the decision was given to the person affected. Mr Biggs added that upholding this interpretation would ensure a principled consistency between the procedure in the Upper Tribunal and the Administrative Court where, under CPR r.54.5, the clock starts to run from the date of the decision to be challenged, not from the date of the claimant’s knowledge of it. That has been has been the rule in the Administrative Court since the decision of this Court in R v Department of Transport ex parte Presvac Engineering [1992] 4 Admin LR 121, and remains the rule as recognised by Chamberlain J in R (Housing Community Interest Company) v Regulator of Social Housing [2020] EWHC 346 (Admin) and reflected in the Administrative Court Guide (2024) at section 6.4.2.2. Mr Biggs submitted that a delay between the making of the decision and the individual becoming aware of it could be taken into account when the tribunal is considering exercising its discretion to extend the period in which the claim could be made: see Purchas LJ in ex parte Presvac, supra, at page 133-4.

The sending of an email containing notice of the curtailment of leave to remain in this country gives rise to a rebuttable presumption that notice has been given. As Floyd LJ observed in Alam and Rana at paragraph 19, Article 8ZB of the 2000 Order “deems the use of the methods of sending in Article 8ZA to be the valid giving of notice … but leaves the person affected … free to prove … that he was not in fact given notice”. As he noted at paragraph 31, the burden of rebutting the presumption by proving that the notice was not received will not be lightly discharged. Mere assertion is not sufficient. In the present case, the UT judge thought that the appellant’s evidence amounted to no more than a mere assertion. In my view, she was wrong to draw that conclusion, for three reasons.

The first matter, and in my view the most significant, is the solicitor’s letter dated 24 June 2023, stating that the appellant had been awaiting a curtailment notice before he could embark on a course of further studies and requiring the Secretary of State to investigate the matter and serve a curtailment notice within fourteen days enabling him to switch to a different provider. The terms of the letter are clearly evidence supporting the appellant’s case that he never received the email. The weight to be attached to them is a matter for the fact-finding tribunal, but the fact that the solicitor wrote asking for service of the curtailment decision supported the appellant’s case that he had not received it. The appellant’s case is therefore more than a bare denial.

The second point is the argument that, as the appellant plainly wished to stay in this country, it would have made no sense, having received a curtailment notice, to have done nothing about it. By allowing the notice period to elapse, he would have put himself in the position of becoming an overstayer so that he would have been unable to make any further application for leave to remain. His case is that he wanted to switch to another education provider but was unable to do so because he had not received the notice. His evidence in the statement before the UT was that he had been advised by a student adviser to wait until be received the curtailment notice and that all of the educational institutions he visited required to see the notice before considering his application for a place.

Thirdly, the appellant is entitled to rely on the fact that the Secretary of State is unable to demonstrate that a delivery receipt for the email was either requested or received. The Guidance does not have any legal force. It is an internal Home Office document setting out procedures which caseworkers are advised to follow. Failure to follow them is not said to give rise to a public law challenge in this case. But the fact that the record is silent as to whether a delivery receipt was requested or received is potentially relevant to the appellant’s case that he never received the notice curtailing his leave to remain.

Taken together these points amount to more than a mere assertion that the notice was not received and in my view are sufficient to meet the requirement for granting permission to bring the judicial review claim. Taken at its highest, the material before the tribunal raised a factual case which could properly succeed in a contested factual hearing.

I reach that conclusion on the basis of the material before the UT judge. In those circumstances, it is unnecessary to consider the further statements which the appellant sought to adduce as fresh evidence on appeal. Furthermore, in reaching that conclusion, I have not made any comparison between the facts of this case and those of any reported case, including Alam and Rana. As Floyd LJ observed in the latter case, at paragraph 33(d), each case depends on its own facts. When determining whether the evidence in a particular case, taken at its highest, is capable of rebutting the presumption that notice has been given, it is neither helpful nor wise to compare that evidence with the evidence summarised in other judgments.

The possibility that the email may have been intercepted does not expressly feature in the appellant’s arguments. Accordingly, the question whether Sheldon J’s observations in Escobar about interception of emails were right in law does not strictly arise in this case. Although both counsel encouraged this Court to express a view on this issue, the fact that it is hotly contested leads me to refrain from making any obiter observations about it in this judgment. It would be better to wait until the issue arises on the facts of another appeal, when the submissions can be rooted firmly in a factual matrix rather than based on general and hypothetical arguments.

For the reasons set out above, I would allow the appeal on ground 2. The points raised by Mr Malik on the facts do amount to an arguable case that the SSHD’s email dated 23 March 2023 did not reach the appellant and that as a result he was not given notice of curtailment of his leave. I stress, however, that the question whether his case on the facts succeeds – in particular, his contention that he never received the email – will be a matter for the fact-finding tribunal. Nothing I have said in this judgment about the facts should carry any weight in the fact-finding analysis.

That conclusion would be sufficient to dispose of this appeal. But in addition, I accept Mr Malik’s submission under ground 1 that the UT judge wrongly proceeded on the basis that the time for bringing the judicial review claim started to run at the moment the Secretary of State took the decision to curtail the appellant’s leave to remain. The fact that it is the practice in the Administrative Court, on the authority of the decision of this Court in R v Department of Transport ex parte Presvac Engineering, that time for bringing a claim for judicial review begins to run from the date the decision to be challenged was made, as opposed to the date on which the claimant was informed about it, has no relevance to this case. On the clear authority of this Court in Mehmood, there is legally no decision to curtail an individual’s leave to remain until he has been given notice in writing. What is legally relevant is the date and time of the service of notice in writing to the person affected. Mr Biggs’ sophistic distinction between what he called the factual decision and the legally valid decision has no place in this analysis. Until notice of curtailment of leave to remain in writing is given there is simply no decision at all. As Peter Jackson LJ observed in the course of the hearing, where the person whose leave is being curtailed only learns of the “factual decision” after three months has passed since it was made, Mr Biggs’ interpretation would convert something which the individual affected was entitled to do as of right – bring a claim for permission to apply for judicial review – to something they can only do by grace of the court. Given the serious consequences of the curtailment of leave to remain, that interpretation is wholly unprincipled.

As indicated above, having concluded that the merits of the case lead to the clear conclusion that the appeal should be allowed, I would grant the one-day extension for filing the appeal notice belatedly requested by the appellant.

For those reasons, I would allow the appeal on ground 2, grant Mr Dhandapani permission to bring his claim for judicial review, and remit the claim to the Upper Tribunal for determination.

I agree.

I also agree.