CA-2024-000617 - [2025] EWCA Civ 1244

The sending of an email containing notice of the curtailment of leave to remain in this country gives rise to a rebuttable presumption that notice has been given. As Floyd LJ observed in Alam and Rana at paragraph 19, Article 8ZB of the 2000 Order “deems the use of the methods of sending in Article 8ZA to be the valid giving of notice … but leaves the person affected … free to prove … that he was not in fact given notice”. As he noted at paragraph 31, the burden of rebutting the presumption by proving that the notice was not received will not be lightly discharged. Mere assertion is not sufficient. In the present case, the UT judge thought that the appellant’s evidence amounted to no more than a mere assertion. In my view, she was wrong to draw that conclusion, for three reasons.

The first matter, and in my view the most significant, is the solicitor’s letter dated 24 June 2023, stating that the appellant had been awaiting a curtailment notice before he could embark on a course of further studies and requiring the Secretary of State to investigate the matter and serve a curtailment notice within fourteen days enabling him to switch to a different provider. The terms of the letter are clearly evidence supporting the appellant’s case that he never received the email. The weight to be attached to them is a matter for the fact-finding tribunal, but the fact that the solicitor wrote asking for service of the curtailment decision supported the appellant’s case that he had not received it. The appellant’s case is therefore more than a bare denial.

The second point is the argument that, as the appellant plainly wished to stay in this country, it would have made no sense, having received a curtailment notice, to have done nothing about it. By allowing the notice period to elapse, he would have put himself in the position of becoming an overstayer so that he would have been unable to make any further application for leave to remain. His case is that he wanted to switch to another education provider but was unable to do so because he had not received the notice. His evidence in the statement before the UT was that he had been advised by a student adviser to wait until be received the curtailment notice and that all of the educational institutions he visited required to see the notice before considering his application for a place.

Thirdly, the appellant is entitled to rely on the fact that the Secretary of State is unable to demonstrate that a delivery receipt for the email was either requested or received. The Guidance does not have any legal force. It is an internal Home Office document setting out procedures which caseworkers are advised to follow. Failure to follow them is not said to give rise to a public law challenge in this case. But the fact that the record is silent as to whether a delivery receipt was requested or received is potentially relevant to the appellant’s case that he never received the notice curtailing his leave to remain.

Taken together these points amount to more than a mere assertion that the notice was not received and in my view are sufficient to meet the requirement for granting permission to bring the judicial review claim. Taken at its highest, the material before the tribunal raised a factual case which could properly succeed in a contested factual hearing.

I reach that conclusion on the basis of the material before the UT judge. In those circumstances, it is unnecessary to consider the further statements which the appellant sought to adduce as fresh evidence on appeal. Furthermore, in reaching that conclusion, I have not made any comparison between the facts of this case and those of any reported case, including Alam and Rana. As Floyd LJ observed in the latter case, at paragraph 33(d), each case depends on its own facts. When determining whether the evidence in a particular case, taken at its highest, is capable of rebutting the presumption that notice has been given, it is neither helpful nor wise to compare that evidence with the evidence summarised in other judgments.

The possibility that the email may have been intercepted does not expressly feature in the appellant’s arguments. Accordingly, the question whether Sheldon J’s observations in Escobar about interception of emails were right in law does not strictly arise in this case. Although both counsel encouraged this Court to express a view on this issue, the fact that it is hotly contested leads me to refrain from making any obiter observations about it in this judgment. It would be better to wait until the issue arises on the facts of another appeal, when the submissions can be rooted firmly in a factual matrix rather than based on general and hypothetical arguments.

For the reasons set out above, I would allow the appeal on ground 2. The points raised by Mr Malik on the facts do amount to an arguable case that the SSHD’s email dated 23 March 2023 did not reach the appellant and that as a result he was not given notice of curtailment of his leave. I stress, however, that the question whether his case on the facts succeeds – in particular, his contention that he never received the email – will be a matter for the fact-finding tribunal. Nothing I have said in this judgment about the facts should carry any weight in the fact-finding analysis.

That conclusion would be sufficient to dispose of this appeal. But in addition, I accept Mr Malik’s submission under ground 1 that the UT judge wrongly proceeded on the basis that the time for bringing the judicial review claim started to run at the moment the Secretary of State took the decision to curtail the appellant’s leave to remain. The fact that it is the practice in the Administrative Court, on the authority of the decision of this Court in R v Department of Transport ex parte Presvac Engineering, that time for bringing a claim for judicial review begins to run from the date the decision to be challenged was made, as opposed to the date on which the claimant was informed about it, has no relevance to this case. On the clear authority of this Court in Mehmood, there is legally no decision to curtail an individual’s leave to remain until he has been given notice in writing. What is legally relevant is the date and time of the service of notice in writing to the person affected. Mr Biggs’ sophistic distinction between what he called the factual decision and the legally valid decision has no place in this analysis. Until notice of curtailment of leave to remain in writing is given there is simply no decision at all. As Peter Jackson LJ observed in the course of the hearing, where the person whose leave is being curtailed only learns of the “factual decision” after three months has passed since it was made, Mr Biggs’ interpretation would convert something which the individual affected was entitled to do as of right – bring a claim for permission to apply for judicial review – to something they can only do by grace of the court. Given the serious consequences of the curtailment of leave to remain, that interpretation is wholly unprincipled.

As indicated above, having concluded that the merits of the case lead to the clear conclusion that the appeal should be allowed, I would grant the one-day extension for filing the appeal notice belatedly requested by the appellant.

For those reasons, I would allow the appeal on ground 2, grant Mr Dhandapani permission to bring his claim for judicial review, and remit the claim to the Upper Tribunal for determination.

I agree.

I also agree.