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

For notice of a decision varying leave to remain, the statutory scheme creates a rebuttable presumption that notice was given when it was sent by an authorised method. At the permission stage, a claimant need not prove non-receipt. The question is whether the evidence, taken at its highest, raises a factual case that could properly succeed at a contested hearing. A solicitor’s contemporaneous request for the notice, evidence explaining why the claimant would have acted differently if notice had been received, and the absence of a recorded delivery receipt may together exceed a bare denial. The assessment is fact-sensitive and should not be made by comparing the evidence with other cases. For a judicial-review challenge to the curtailment, time runs from service of the notice, because there is legally no decision until written notice has been given.

The appellant’s student leave was cancelled by an email dated 23 March 2023, sent to an email address he had provided. He said that he had not received it. After his solicitors requested a curtailment notice in June 2023, the Secretary of State maintained that the notice had been served and was deemed received.

The Upper Tribunal refused permission to apply for judicial review, holding that the application was substantially unarguable and out of time. It considered the appellant’s evidence to be no more than a bare assertion and treated time as running from the date of the decision. The Court of Appeal considered whether the appellant had an arguable case of non-receipt and when the time limit began.

1. Appeal allowed; permission granted and claim remitted. The Court allowed the appeal on ground 2, granted permission to bring the judicial-review claim, and remitted it to the Upper Tribunal. It also granted a one-day extension for filing the appeal notice.
2. Articles 8ZA and 8ZB of the Immigration (Leave to Enter and Remain) Order 2000 create a rebuttable presumption that notice has been given when it is sent by an authorised method. The burden of rebutting the presumption is substantial, and mere assertion is insufficient. But the permission-stage question is whether the material, taken at its highest, raises a factual case capable of succeeding at a contested hearing.
3. The Upper Tribunal erred in treating the appellant’s case as a bare denial. His solicitor’s letter requesting service of the curtailment notice supported non-receipt. His evidence that he wanted to change education provider, but would have had no reason to allow his leave to expire if he had received the notice, also supported the case. The Secretary of State’s inability to show whether a delivery receipt had been requested or received was potentially relevant. Taken together, those matters crossed the permission threshold.
4. The Court declined to express an obiter view on whether an email arriving in an inbox could be intercepted before it was read. That issue was not necessary to the appeal and was better left to a case arising on a concrete factual matrix. The present case was decided on the evidence identified above, without comparison with the evidence in other reported decisions.
5. On ground 1, the Court applied Mehmood. Section 4(1) of the Immigration Act 1971 makes written notice to the person affected the means by which the power to vary leave is exercised. Until such notice is given, there is legally no decision to curtail leave. The Upper Tribunal therefore erred in treating the internal decision date as the date from which time ran. The Administrative Court practice under Presvac Engineering was irrelevant to this statutory scheme.

• Court of Appeal (Civil Division) [2025] EWCA Civ 1244 : allowed the appeal, granted permission to bring the judicial-review claim, extended time for the appeal notice by one day, and remitted the claim to the Upper Tribunal.
• Upper Tribunal (Immigration and Asylum Chamber): refused permission to apply for judicial review on the merits and for delay, and refused permission to appeal.