Md Shahin Uddin v The Secretary of State for the Home Department

Where the Secretary of State relies on a curtailment notice deemed given by being placed on file under article 8ZA(4), the Secretary of State must establish the facts which permit that method of service. In particular, there must be evidence that attempts to give notice by the methods in article 8ZA(2) or (3) were impossible or failed, and that the reasons were recorded.

The Immigration (Leave to Enter and Remain) Order 2000 permits service at an overseas postal address. The existence of an address outside the United Kingdom may therefore prevent reliance on deemed service to file. A tribunal cannot treat adverse credibility findings about an appellant’s addresses as a substitute for evidence that the statutory preconditions for service to file were met.

The appellant had leave as a Tier 4 student until 30 April 2014. Following revocation of his college’s sponsor licence, the Secretary of State purported to curtail that leave by a decision dated 10 October 2013, recorded as served on file.

His subsequent application for further leave was refused under paragraph 245ZX(m) of the Immigration Rules on the basis that the curtailed leave had expired and he had overstayed. The First-tier Tribunal dismissed his appeal, finding that the curtailment notice had been validly served.

On appeal, the Upper Tribunal considered whether the Secretary of State had validly relied on deemed service under articles 8ZA and 8ZB of the Immigration (Leave to Enter and Remain) Order 2000, including whether service could have been effected at the appellant’s Bangladeshi address.

1. Appeal allowed. The First-tier Tribunal made a material error of law by finding that the curtailment notice had been validly served without assessing whether the statutory requirements for deemed service on file had been satisfied.

2. The Secretary of State bears the initial burden of establishing the method by which notice was given. Although article 8ZB creates rebuttable presumptions of receipt, the Secretary of State must first prove the facts which activate them. That allocation is both legally justified and practical because the relevant evidence is ordinarily within the Secretary of State’s knowledge: [29]-[30].

3. Under article 8ZA(4) of the Immigration (Leave to Enter and Remain) Order 2000, a notice may be placed on file and deemed given only where attempts to give notice in accordance with article 8ZA(2) or (3) were not possible or had failed, and the decision-maker recorded the reasons. Evidence of those attempts is an essential foundation for deemed service: [31]-[32], [43].

4. The Order permits a curtailment notice to be sent to an overseas postal address. Article 8ZB(1)(a)(ii), which prescribes a presumption for postal service outside the United Kingdom, confirms that construction. The respondent had an address for the appellant in Bangladesh but produced no evidence of any attempt to post the notice there, nor a sufficient explanation for not doing so: [41]-[43].

5. The purported curtailment was therefore ineffective. The appellant’s original leave remained valid when he applied on 28 April 2014. He had not overstayed, paragraph 245ZX(m) did not apply, and the refusal was wrong. The Upper Tribunal set aside the First-tier Tribunal’s decision and remade it by allowing the appeal: [44]-[48].

• Upper Tribunal (Immigration and Asylum Chamber): allowed the appeal, set aside the First-tier Tribunal’s decision for material error of law, and remade the decision by allowing the appellant’s immigration appeal: [2017] UKUT 408 (IAC).
• First-tier Tribunal: dismissed the appeal, holding that the curtailment notice had been validly served and that paragraph 245ZX(m) of the Immigration Rules applied.