Marco Antonio Rodriguez Escobar v Secretary of State for the Home Department

Service of an immigration notice by email is subject to a rebuttable presumption that it was given when sent. The presumption may be rebutted by convincing evidence that the email was intercepted or deleted before it could be read, although mere non-reading or assertion of non-receipt is insufficient. Effective notification does not ordinarily require the recipient to read and absorb the notice. Where notice was properly given but not read, the absence of actual awareness does not generally prevent the decision taking legal effect. A further opportunity to make representations will arise only in exceptional circumstances, particularly where the recipient had already been given an opportunity to address alternative grounds for remaining in the United Kingdom.

The claimant, a Bolivian national, challenged the refusal of entry to the United Kingdom, his detention and his removal. His leave as the spouse of a British citizen had been curtailed after the relationship broke down. The curtailment notice was sent by email to the address he had provided, but he said that he had not seen it and suggested that his estranged wife might have deleted it.

He argued that service had not been effective and that fairness required a further opportunity to make representations based on long residence and Article 8 rights. The central issues were whether the statutory presumption of service had been rebutted and whether the Secretary of State was required to provide a further opportunity to raise alternative grounds for leave.

1. Effective service. Under section 4(1) of the Immigration Act 1971 and articles 8ZA and 8ZB of the Immigration (Leave to Enter and Remain) Order 2000, a notice sent electronically to an email address provided by the person is deemed to have been given on the day it was sent, unless the contrary is proved.
2. The statutory language does not make an email irrebuttably given merely because it reaches the recipient’s inbox. In principle, an applicant may show that a third party intercepted or deleted it before it could be read. The burden is substantial and will not ordinarily be discharged by a bare assertion that the notice was not seen.
3. The claimant’s evidence did not rebut the presumption. He did not clearly state that the email had never been in his inbox, offered only speculation about deletion by his estranged wife, produced no expert evidence, and relied on inferences which were not the only or obvious explanations.
4. Fairness. The reasoning in R (Anufrijeva) v Secretary of State for the Home Department [2004] 1 AC 604 concerned the legal effect of an administrative decision that had not been notified. It did not establish that a decision loses effect merely because a properly given notice was not read. R (Masud Alam) v Secretary of State for the Home Department [2020] EWCA Civ 1527 confirmed that receipt does not require the recipient to read and absorb the notice.
5. Even if the claimant had not read the notice, fairness did not require a further opportunity to rely on the ten-year or twenty-year residence rules. There was a public interest in requiring individuals to read correspondence concerning their immigration status, and exceptional circumstances were absent. The application for judicial review was dismissed.

Permission to apply for judicial review was granted by Richard Clayton KC, sitting as a deputy judge, on 7 August 2023. The Administrative Court dismissed the judicial review claim.