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

Where leave to remain is varied under section 4(1) of the Immigration Act 1971, the Secretary of State must ensure that written notice is given to the person affected. This is an obligation of result, not merely an obligation to send a notice with that intention. Recorded delivery to the person’s address is insufficient where another person signs for the letter, unless receipt by an authorised representative or by the person concerned is established. The Secretary of State bears the burden of proving receipt. A later statutory amendment permitting postal service does not apply retrospectively.

The claimant’s leave to remain as a Tier 4 student was curtailed after his sponsor’s licence was revoked. The Secretary of State sent the curtailment notice by recorded delivery to an address previously supplied by the claimant. The delivery receipt was signed by a person whom the claimant did not recognise or authorise.

The claimant subsequently applied for further leave. That application was refused as out of time, on the basis that his earlier leave had expired. The central issue was whether the curtailment notice had been validly given under section 4(1) of the Immigration Act 1971.

1. The claim succeeded. The claimant’s leave had not been validly curtailed, so it remained extant when he applied for further leave. The application for further leave ought therefore to have been granted.
2. Section 4(1) of the Immigration Act 1971 requires variation of leave to be effected by written notice given to the person affected. The requirement is an obligation of result. The Secretary of State must ensure that the notice is given, rather than merely intended to be given.
3. Sending the notice by recorded delivery to the claimant’s address, followed by a receipt signed by another person present at the address, did not satisfy the statutory requirement. The Secretary of State had not proved that the notice was received by the claimant.
4. The statutory requirement might be met where the notice is received by a solicitor or another person authorised by the claimant to accept such correspondence. Recorded delivery may also suffice where the claimant himself signs the receipt, potentially by comparison with a signature held on file. The Secretary of State bears the burden of proving receipt.
5. The Immigration (Notices) Regulations 2003 did not apply because the decision was not appealable under section 82 of the Nationality, Immigration and Asylum Act 2002. The later amendment to the Immigration (Leave to Enter or Remain) Order 2000, introducing paragraph 8Za and permitting postal service, came into force after the events and did not assist the Secretary of State.
6. The claimant was awarded his costs, summarily assessed at £4,500 inclusive of VAT. Permission to appeal was refused by the High Court, with permission available from the Court of Appeal.

The judgment records that permission to apply for judicial review had been granted on 16 December 2013 by John Powell QC, sitting as a deputy High Court Judge. The Deputy Judge refused permission to appeal, leaving the Secretary of State to apply to the Court of Appeal.