SHOUKATH ALI SYED v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

A notice varying leave under section 4(1) of the Immigration Act 1971 must be communicated to the affected person before it takes effect. The Immigration (Notices) Regulations 2003, including their provisions for recorded delivery and deemed service on file, apply only to an appealable immigration decision. They do not govern a non-appealable curtailment of leave.

In the absence of a statutory provision authorising postal service, the Secretary of State cannot rely on deemed postal service under section 7 of the Interpretation Act 1978. A returned recorded-delivery notice does not establish communication. Communication may, however, be made through a person authorised to receive notice on the affected person’s behalf.

The appellant, an Indian national, appealed against a decision to remove him after the refusal of his application for indefinite leave to remain based on long residence. The Secretary of State contended that his earlier leave as a work-permit holder had been curtailed in 2009. Notices sent by recorded delivery to his last known address were returned, after which the notice was placed on file.

The First-tier Tribunal held that the curtailment had been validly served under regulation 6 of the Immigration (Notices) Regulations 2003. Before the Upper Tribunal, the respondent accepted that, if the curtailment had not been effective, the appellant retained leave until February 2013 and the removal decision was unlawful. The issue was whether a non-appealable curtailment had been validly communicated.

1. Appeal allowed. The First-tier Tribunal made a material error of law. Its decision was set aside and remade. The removal decision was not in accordance with the law.

2. Under section 4(1) of the Immigration Act 1971, a variation of leave must be made by written notice given to the affected person. That requirement entails communication. The returned recorded-delivery letters showed that the curtailment notices had not been served. The First-tier Tribunal’s inference that the appellant was likely to have received postal collection cards could not establish communication.

3. The Immigration (Notices) Regulations 2003 were made under section 105 of the Nationality, Immigration and Asylum Act 2002 and concern immigration decisions carrying a right of appeal. This curtailment did not leave the appellant without leave and was not appealable. Regulation 7, including deemed service on file under regulation 7(2), therefore did not apply. Regulation 6(2) could not validate, for section 4(1) purposes, service under the Regulations where the Regulations themselves did not apply.

4. Section 7 of the Interpretation Act 1978 did not assist the respondent. Section 4(1) neither authorised nor required service by post. There was consequently no statutory basis for deemed postal service.

5. In the absence of a statutory instrument governing notice of a non-appealable variation, the Secretary of State had to prove actual communication of the decision. Communication could be made to an authorised recipient, but it had not been proved here. The appellant’s leave therefore continued, making removal unlawful.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal, set aside the First-tier Tribunal’s determination, and remade the decision by holding that removal was not in accordance with the law.
• First-tier Tribunal: First-tier Tribunal Judge Onoufriou dismissed the appeal in a determination promulgated on 2 October 2012, holding that the 2009 curtailment notice had been validly served.