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

Under article 8ZA(4) of the Immigration (Leave to Enter and Remain) Order 2000, deemed service is available only where the decision-maker was entitled to conclude that attempts to give notice under the preceding provisions were not possible, recorded the reasons, and placed the notice on file.

The question whether those conditions existed is reviewable by the court applying ordinary administrative law principles. A postal address supplied by a migrant may qualify as an address provided for correspondence, even where it is outside the United Kingdom. A policy governing the exercise of the power cannot determine the extent of the statutory or delegated power. Failure to consider such an address rendered the deemed service decision unlawful.

The claimant, a Pakistani national holding Tier 4 student leave, challenged the Secretary of State’s decision to curtail his leave and his consequential detention. His sponsor’s licence had been revoked, and the claimant’s leave was recorded as curtailed to expire on 4 May 2014.

The decision notice was placed on file under article 8ZA(4) of the Immigration (Leave to Enter and Remain) Order 2000, because the claimant’s whereabouts were unknown and no suitable United Kingdom address or email address had been identified. He was later detained as an overstayer. The central issue was whether the Secretary of State was entitled to rely on the deeming provision.

1. Application granted. The claimant succeeded on the challenge to deemed service and, by concession, on the challenge to his detention.
2. Section 4(1) of the Immigration Act 1971 requires a variation of leave to be exercised by written notice. Article 8ZA establishes the methods by which that notice may be given. Article 8ZA(4) applies only where attempts under articles 8ZA(2) and 8ZA(3) are not possible or have failed, the decision-maker records the reasons, and the notice is placed on file.
3. The court must decide whether the decision-maker was entitled to conclude that the necessary facts existed. That issue may be approached as one of precedent or jurisdictional fact, or through conventional administrative law principles.
4. The claimant’s Pakistani address was recorded as a local address supplied in connection with his application. Article 8ZB(1)(a)(ii) confirms that a notice may be sent outside the United Kingdom. In the absence of evidence of a separate procedure for identifying correspondence addresses, the Secretary of State was not entitled to disregard the supplied address as an address provided, at least among other purposes, for correspondence.
5. The record of reasons did not explain why service at that address was impossible. The decision was therefore unlawful because the jurisdictional precondition was not met, the conclusion was irrational, or the reasons required by article 8ZA(4) were deficient.
6. The Secretary of State did not err in concluding that service under article 8ZA(3) was unavailable. There was no evidence that the Pakistani address was the claimant’s place of abode, and his former college had ceased operating after its sponsor licence was revoked.
7. Consistently with the constitutional principle identified in R (oao Anufrijeva) v Secretary of State for the Home Department [2004] 1 AC 604, notice is important before a decision has legal effect. The court granted judicial review and invited submissions on an order declaring the detention unlawful and allowing damages to be assessed.