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

A notice varying leave to enter or remain is given when it is received. The recipient need not read, understand or become aware of it. A postal notice will normally be received when it arrives, addressed to the person affected, at the dwelling where that person lives. A notice sent to an address supplied for correspondence is received even if the person fails to collect it.

Where a method prescribed by article 8ZA of the Immigration (Leave to Enter and Remain) Order 2000 is used, article 8ZB creates a rebuttable presumption of valid notice and, where specified, its timing. At the permission stage in judicial review, an applicant must present evidence capable of establishing actual non-receipt at a contested hearing. An assertion that the notice did not come to the applicant’s attention is insufficient.

Two appellants challenged decisions curtailing their leave to remain. Each decision had been sent by recorded delivery to the address where the relevant appellant lived. Each appellant maintained that he had first learned of the decision during unrelated proceedings in 2018.

The Upper Tribunal refused both applications for permission to seek judicial review. In Mr Rana’s case, it also certified the application as totally without merit. The appellants appealed with permission to the Court of Appeal.

The central issues were what constitutes giving notice in writing under section 4(1) of the Immigration Act 1971, how articles 8ZA and 8ZB of the Immigration (Leave to Enter and Remain) Order 2000 operate, and what an applicant must show at the permission stage to establish an arguable case of non-receipt.

1. Both appeals were dismissed unanimously. The Upper Tribunal had correctly refused permission to seek judicial review because neither appellant had a real prospect of proving that the curtailment notice was not received.

2. Article 8ZA of the Immigration (Leave to Enter and Remain) Order 2000, read alone, lists permitted methods of giving or sending notice. Its paragraphs (1) to (3) do not themselves imply deemed receipt. That construction would be especially unsuitable where some permitted methods do not specify the fax number, document exchange number or courier address to be used. Article 8ZA(4) separately provides express deemed notice where attempts to give notice are impossible or have failed and the decision-maker records the reasons and places the notice on file.

3. Article 8ZB(1) creates a rebuttable presumption where a notice is sent by a method within article 8ZA. It deems use of the prescribed method to constitute valid giving of notice and, in the cases specified, fixes the day on which notice is given. The affected person remains free to prove either that notice was not in fact given or that it was not given on the presumed day. No article 8ZB presumption applies to ordinary post sent within the United Kingdom because the provision contains no corresponding rule for that method.

4. Giving notice under section 4(1) of the Immigration Act 1971 requires receipt, not proof that the recipient read, understood or became aware of the decision. An email is received when it reaches the recipient’s inbox. A postal document will normally be received when it arrives, addressed to the person affected, at the dwelling where that person lives, absent positive evidence of interception. A document sent to an address supplied for correspondence is received even if the applicant fails to collect it.

5. Where convincing evidence leads to an expectation of receipt, the burden of proving non-receipt will not be lightly discharged. At the permission stage, the applicant must identify a factual case which, taken at its highest, could properly succeed at a contested hearing. Evidence that the notice did not come to the applicant’s attention does not suffice. Discretionary matters such as delay remain relevant.

6. The Home Office records and surrounding evidence presented a strong case that Mr Alam’s notice reached his shared address. His belief that his flatmates would have passed it to him supplied no evidence of non-delivery. In Mr Rana’s case, the records showed recorded delivery to his address and a signature in the name “Rana”; his bare denial did not create a real prospect of proving non-receipt.

• Court of Appeal (Civil Division): By [2020] EWCA Civ 1527, unanimously dismissed both appeals and upheld the refusals of permission to seek judicial review.
• Upper Tribunal (Immigration and Asylum Chamber)—Mr Alam: UTJ Finch refused permission to seek judicial review in a reserved decision dated 17 June 2019. The Court of Appeal held that permission was correctly refused, although the issue was not governed by Wednesbury unreasonableness.
• Upper Tribunal (Immigration and Asylum Chamber)—Mr Rana: UTJ Freeman refused permission on 7 February 2019 and certified the application as totally without merit. The Court of Appeal upheld the refusal of permission.