Uz-Zaman Munim, R (on the application of) v The Secretary of State for the Home Department

An interview notice may properly be sent by email to an address supplied by an applicant. Where it is received there in good time, diversion to a junk folder does not prevent it being properly given. The recipient is responsible for monitoring that folder, and failure to see the notice is not a reasonable explanation for non-attendance. Under paragraph 322(10) of the Immigration Rules, refusal is the normal consequence of non-attendance without a reasonable explanation. The Secretary of State may maintain that outcome without offering another interview. A court reconsidering a procedural dismissal may consider the merits first where the appeal has no real prospect of success. An extraordinary delay without good reason may itself justify refusal.

The Applicant, a Bangladeshi national seeking further leave to remain as a Tier 4 student, failed to attend an interview after the notice was sent to his email address and diverted to his junk folder. The Secretary of State refused the application. The Upper Tribunal refused permission to bring judicial review proceedings, finding that the notice had been properly sent and that the failure to monitor the junk folder was not a reasonable explanation.

The Applicant appealed, but the appeal was dismissed by Master Meacher for failure to file the judgment under challenge. The Applicant later sought reconsideration after substantial delay. The central issues were whether there was any arguable error in the Upper Tribunal’s decision and whether the procedural dismissal should be set aside.

1. Disposition. The application for reconsideration was refused. The Master’s Order dismissing the appeal remained in place, and the appeal stood dismissed.
2. Merits considered first. The court was entitled to consider the merits before deciding whether to interfere with the procedural dismissal. The appeal had no real prospect of success, so rescinding the Master’s Order would serve no purpose.
3. Email notice. The interview notice was sent in good time to the email address supplied by the Applicant and was received there, although it entered the junk folder. No further evidence was required once those matters were uncontroversial. There was no requirement for the notice to be sent by hard-copy post. The Applicant was responsible for monitoring his junk folder, and his failure to see the email was not a reasonable explanation for failing to attend.
4. Immigration Rules. Paragraph 322(10) of the Immigration Rules provides for the normal refusal of leave where an applicant fails, without reasonable explanation, to attend an interview. The Secretary of State was entitled to conclude that nothing displaced that normal consequence. The Upper Tribunal therefore made no arguable error in upholding the refusal. There was no basis for requiring another interview or applying an evidential flexibility rule.
5. Other grounds. The administrative review had taken account of the Applicant’s assertion that he had not seen the email. The issue of postal service was not material to the decision, which rested on receipt of the email. The Secretary of State was entitled to remain unconvinced that the Applicant was a genuine student on the documentary material alone.
6. Delay. The delay in seeking reconsideration was extraordinary: a step subject to a seven-day period was taken almost two years later, with no good reason. Applying the guidance in Denton v T H White [2014] EWCA Civ 906, that delay would independently have justified refusal.

• Court of Appeal (Civil Division): Master Meacher dismissed the appeal on 6 April 2017 for failure to file the judgment under challenge. An application for reconsideration was refused on the papers on 22 May 2019, but an oral reconsideration hearing was permitted. The present court refused reconsideration and left the dismissal in place.
• Upper Tribunal (Immigration and Asylum Chamber): Permission to proceed with judicial review was refused on the papers and again after an oral hearing before Upper Tribunal Judge Kopieczek.