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

Under articles 8ZA and 8ZB of the Immigration (Leave to Enter and Remain) (Amendment) Order 2000, a notice is presumed to have been given once the Secretary of State proves compliance with the prescribed method of service. The affected person may rebut that presumption by showing, in good faith, that the notice was not brought to their attention. The concept of being “given” remains informed by section 4 of the Immigration Act 1971: the person must be told of the decision so that they can act upon it. A notice sent to an outdated address and returned as undelivered was therefore not validly given where the Secretary of State failed to make a required further attempt at service.

The claimant’s leave to remain was curtailed after his educational sponsor’s licence was suspended. The Secretary of State sent the curtailment notice by recorded delivery to an address which the claimant had left, although he had updated his address with his sponsor. The letter was signed for and then returned marked as having been returned because the claimant had moved.

The claimant argued that the notice had not been given under articles 8ZA and 8ZB of the Immigration (Leave to Enter and Remain) (Amendment) Order 2000, and that the subsequent refusal of further leave was unlawful. The central issue was whether delivery to the former address was sufficient despite the claimant’s evidence that he had not received the notice.

1. The claim succeeded. The curtailment notice dated 29 January 2016 was not validly given when delivered to the claimant’s former address. The refusal decision dated 21 June 2017 was unlawful and was quashed.
2. Section 4 of the Immigration Act 1971 requires variation or revocation of leave to be effected by written notice given to the person affected. In ordinary language, that requires the decision to be brought to the person’s attention so that they can act upon it.
3. Articles 8ZA and 8ZB modify the evidential position. Once the Secretary of State proves that the notice was sent in accordance with article 8ZA, article 8ZB creates a presumption that it was given, and the burden shifts to the claimant to prove the contrary.
4. Proof of the contrary is not confined to showing that the notice was sent to the wrong address. A person acting in good faith may rebut the presumption by demonstrating that the notice was not brought to their attention. A construction which treated service at a former address as conclusive would frustrate the purpose of section 4.
5. The claimant had acted in good faith. He had updated his sponsor, contacted UK Visas and Immigration after learning that notices were being issued, supplied his current details and requested a fresh notice. The Secretary of State knew that the notice had been returned, failed to follow the Home Office guidance requiring a second attempt at service, and made no further enquiry.
6. The notice was given only when the claimant received the later correspondence on or about 30 March 2016. It was unreasonable to treat his leave as expiring eight days later. A fresh notice should have allowed a further 60-day period.

Costs were awarded to the claimant, subject to assessment if not agreed. Any application for permission to appeal was to be filed within seven days.