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

For a non-appealable immigration decision, written notice is “given” under section 4(1) only when it has been sent by a method authorised by the Immigration (Leave to Enter and Remain) Order 2000 and delivered by that method to the relevant address. Sending alone is insufficient.

Where notice is sent by e-mail to an address provided for correspondence, delivery to the recipient’s e-mail system, ordinarily the inbox, gives the recipient the required opportunity to know of the decision. Actual knowledge, opening the e-mail, or reading its contents is unnecessary. Article 8ZB creates a rebuttable presumption both of delivery and of its date. The presumption may be rebutted by evidence that the notice was not delivered.

The applicant, a Pakistani national, had leave as a Tier 4 student until August 2014. Following revocation of his college’s sponsor licence, the Secretary of State curtailed his leave by a decision dated 1 October 2013. The decision was attached to an e-mail sent to an address stated in his visa application.

He later applied for leave as the spouse of a British citizen. The Secretary of State refused that application because he had overstayed for more than 28 days. By judicial review, the applicant contended that the curtailment notice had not been lawfully sent or given, and that he had no access to the e-mail account used by his agent.

The central issue was whether the e-mail notice had been “given” for the purposes of section 4(1) of the Immigration Act 1971 and articles 8ZA and 8ZB of the Immigration (Leave to Enter and Remain) Order 2000.

1. The judicial review claim was dismissed. The Secretary of State proved, through the contemporaneous GCID record and the curtailment notice, that the notice had been sent as an attachment to the applicant’s stated e-mail address on 1 October 2013. There was no fixed evidential requirement for a witness statement from the officer who sent it.

2. A notice required by section 4(1) of the Immigration Act 1971 is not “given” merely because it has been sent. Under article 8ZA of the Immigration (Leave to Enter and Remain) Order 2000, it must be sent by an authorised method and delivered by that method. This construction accords with R (Anufrijeva) v SSHD [2003] UKHL 36: the person must have an opportunity to make himself acquainted with the decision.

3. For postal notice, delivery occurs when the letter is left at the permitted address; for recorded delivery, when it is signed for and left there. For e-mail, the equivalent is delivery to the individual’s e-mail system, normally the inbox. The statutory requirement does not require actual knowledge of the notice or its contents. An unread e-mail can therefore constitute notice having been given.

4. Article 8ZB(1)(b) rebuttably presumes that an e-mail notice has been given on the day it was sent. The presumption extends to both the fact and date of delivery, and may be rebutted by evidence that delivery did not occur. The applicant’s inability to access an address supplied as his correspondence address did not rebut it. He had not notified the Home Office of an alternative address before the decision.

5. The curtailment took effect on 30 November 2013. The applicant was consequently an overstayer by the time of his spouse application and could not satisfy paragraph E-LTRP.2.2 of Appendix FM. It was unnecessary to determine finally whether the lawfulness of curtailment was a precedent fact or reviewable only on Wednesbury principles, since the claim failed on either basis.

This was a first-instance judicial review in the Upper Tribunal. The challenged decision was the Secretary of State’s refusal dated 4 April 2014 of the applicant’s application for further leave to remain.