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

Where postal service of an immigration notice is deemed effective unless the contrary is proved, the claimant bears the burden of establishing that actual service did not occur. The court must assess the evidence directed to the service system and the particular notice. General evidence of administrative or solicitors’ errors, delay, poor case management, or the claimant’s lack of knowledge may be insufficient if it does not provide a reasonable basis for concluding that the documented service procedure failed. A possible lower standard of proof in asylum-related cases was noted but left undecided.

The claimant sought judicial review after his asylum claim had been refused and removal directions were made. The issue was whether notice of the immigration decision had been served on his former solicitors by recorded delivery under the Immigration (Notices) Regulations 2003. If service had failed, the claimant contended that he would have an in-country right of appeal.

Permission had been granted by Keith J on 7 June 2006 on more than one ground, but only the service issue remained. The claimant relied on evidential irregularities, his continued lack of knowledge of the decision, and the suggested standard of proof in Karanakaran and [2000] 3 All ER 449. The central question was whether he had proved that service on the solicitors was not effected.

1. Application refused. The claimant failed to discharge the burden of proving that the notice was not served.
2. Under regulation 4 of the Immigration (Notices) Regulations 2003, an appealable immigration decision had to be notified in writing. Notice to a representative was treated as notice to the person. Regulation 7 permitted service by recorded delivery to an address provided for correspondence, and regulation 7(4) deemed postal service effective on the second day after posting unless the contrary was proved.
3. The relevant notice was sent by recorded delivery to the solicitors’ address in correspondence. The documentary evidence, including the Post Office reference and Home Office checklists, supported the conclusion that the standard procedure had been followed. There was no evidence that the letter had been returned or that delivery had failed.
4. Evidence of earlier address errors, the claimant’s lack of awareness, a later solicitors’ letter, and disorganisation within the solicitors’ firm did not materially establish non-service. The claimant’s credibility as to whether he knew of the refusal was not determinative of whether the solicitors had been served.
5. The court considered it unnecessary to decide the applicable standard of proof. Even applying the suggested lower standard of a reasonable degree of likelihood, the evidence was too remote from the service arrangements and amounted only to speculation.
6. It was observed, without deciding the issue, that FP (Iran) [2007] EWCA Civ 13, considered with the principle in Karanakaran, might in an appropriate case support applying a lower standard of proof. The broader arguments could be raised before the Asylum and Immigration Tribunal in any application for permission to appeal out of time.
7. The Secretary of State was awarded costs, not to be enforced without permission of the court.

Permission for judicial review was granted by Keith J on 7 June 2006. The present court determined the remaining service issue at first instance and refused the application.