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

Immigration decisions may be served by post under the Immigration (Leave to Enter and Remain) Order 2000 where the address used was provided for correspondence or was the person’s last-known abode. A person’s subsequent non-receipt does not, without more, invalidate service properly made under the Order.

A pending appeal may permit detention because removal directions and preparatory steps may still be taken. Section 3C leave raises different considerations because it contains no equivalent provision authorising removal directions. The legality of continued detention under the Hardial Singh principles is assessed by the court as primary decision-maker and depends on all the circumstances. Detention became unlawful once permission for judicial review had been granted, the claim had been reinstated, and removal could no longer realistically occur within a reasonable period.

The claimant, a Bangladeshi national, challenged the Secretary of State’s decision that he was liable to administrative removal as an overstayer and challenged his detention from 28 February to 9 August 2017.

He argued that a refusal of further student leave dated 4 December 2015 had not been validly served, that he should have received an opportunity to find a new sponsor, that there was no power to detain him, and that his continued detention breached the Hardial Singh principles. The Secretary of State relied on postal service to the claimant’s former address, the refusal decision, removal notices, and the claimant’s late asylum claim. The central issues were the validity of service, the scope of the detention power, and the lawfulness of detention throughout the relevant period.

1. Service. The refusal letter was validly served in January 2016. The evidence established, on the balance of probabilities, that the Secretary of State had no record of the claimant’s later address and that 38 West Road remained his provided or last-known address. Service was therefore valid under articles 8ZA(2)(c) and 8ZA(3)(a)(i) of the Immigration (Leave to Enter and Remain) Order 2000. Article 8ZB concerned the deemed date of receipt and did not allow the claimant to invalidate otherwise proper service merely because he had moved.
2. Fairness and the 60-day letter. The claimant knew that his college’s sponsor licence had been revoked. Further, his application was refused on the separate and likely decisive ground that he had relied on a fraudulent TOEIC certificate. On the facts, fairness did not require a 60-day letter. It was unnecessary to decide whether Patel (revocation of sponsor licence – fairness) India [2011] UKUT 00211 (IAC) remained good law.
3. Power to detain. A person with a pending appeal may still be subject to removal directions and detention because section 78(3) of the Nationality, Immigration and Asylum Act 2002 permits interim and preparatory action. The statutory detention power requires reasonable grounds for suspecting that removal directions may be given. The court left open the more difficult question whether detention is available while leave is extended under section 3C of the Immigration Act 1971. It rejected the contention that a pending Article 8 claim necessarily prevented detention.
4. Continued detention. The Hardial Singh principles require an intention to remove, detention for no longer than reasonable in all the circumstances, release when removal within that period is no longer realistically possible, and reasonable diligence and expedition. There is no fixed tariff. The court assesses legality as primary decision-maker, without substituting hindsight for the circumstances known at the time. The initial detention and detention through 23 June 2017 were lawful, including during the late asylum claim and judicial review proceedings before permission was granted.
5. After permission for judicial review was granted and the claim was reinstated, the claimant had an arguable case which could not ordinarily be resolved for many months. Removal was no longer realistic within a reasonable period. A short period for reassessment and release was permissible, but detention after 23 June 2017 was unlawful. The claim therefore succeeded in part. Section 31(2A) of the Senior Courts Act 1981 did not remove the consequence of the court’s conclusion under the Hardial Singh principles.

First-instance judicial review claim. No prior appellate decision is stated in the judgment.