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

S.3 of the Immigration Act 1971, headed “General provisions for regulation and control”, provides, so far as relevant to this appeal:

“(1)

Except as otherwise provided by or under this Act, where a person is not a British citizen

(a)

he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, the Act;

(b)

he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period;

…

In the case of a limited leave to enter or remain in the United Kingdom, -

(a)

a person's leave may be varied, whether by restricting, enlarging or removing the limit on its duration, or by adding, varying or revoking conditions …”

S.4 of the 1971 Act is headed “Administration of control”. Subsection (1) provides, so far as relevant:

"The power under this Act to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers, and the power to give leave to remain in the United Kingdom, or to vary any leave under section 3(3)(a) (whether as regards duration or conditions) ... shall be exercised by the Secretary of State; and ... those powers shall be exercised by notice in writing given to the person affected ... "

Article 8ZA of the Immigration (Leave to Enter and Remain) Order 2000 (SI 2000/1161) ("the 2000 Order"), headed "Grant, refusal or variation of leave by notice in writing", provides so far as material:

"(1)

A notice in writing ….

(d)

varying a person's leave to enter or remain in the United Kingdom,

may be given to the person affected as required by section 4(1) of the Act as follows.

(2)

The notice may be-

(a)

given by hand;

(b)

sent by fax;

(c)

sent by postal service to a postal address provided for correspondence by the person or the person's representative;

(d)

sent electronically to an e-mail address provided for correspondence by the person or the person's representative;

(e)

sent by document exchange to a document exchange number or address; or

(f)

sent by courier.

(3)

Where no postal or e-mail address for correspondence has been provided, the notice may be sent-

(a)

by postal service to--

(i)

the last-known or usual place of abode, place of study or place of business of the person; or

(ii)

the last-known or usual place of business of the person's representative; or

(b)

electronically to--

(i)

the last-known e-mail address for the person (including at the person's last-known place of study or place of business); or

(ii)

the last-known e-mail address of the person's representative.

(4)

Where attempts to give notice in accordance with paragraphs (2) and (3) are not possible or have failed, when the decision-maker records the reasons for this and places the notice on file the notice shall be deemed to have been given.”

Article 8ZB, headed “Presumptions about receipt of notice”, provides:

"(1)

Where a notice is sent in accordance with article 8ZA, it shall be deemed to have been given to the person affected, unless the contrary is proved-

(a)

where the notice is sent by postal service-

(i)

on the second day after it was sent by postal service in which delivery or receipt is recorded if sent to a place within the United Kingdom;

(ii)

on the 28th day after it was posted if sent to a place outside the United Kingdom;

(b)

where the notice is sent by fax, e-mail, document exchange or courier, on the day it was sent.

(2)

For the purposes of paragraph (1)(a) the period is to be calculated excluding the day on which the notice is posted.

(3)

For the purposes of paragraph (1)(a)(i) the period is to be calculated excluding any day which is not a business day.

(4)

In paragraph (3) "business day" means any day other than a Saturday, a Sunday, Christmas Day, Good Friday or a day which is a bank holiday under the Banking and Financial Dealings Act 1971 in the part of the United Kingdom to which the notice is sent.”

In R (Alam) and R (Rana) v SSHD [2020] EWCA Civ 1527, Floyd LJ, with whom the other members of the Court agreed, put forward the following interpretation of Articles 8ZA and 8ZB (at paragraph 19):

“Article 8ZB(1) only creates a rebuttable presumption which arises if one of the methods of sending in Article 8ZA is followed. In those circumstances, whilst it is true that the drafting leaves much to be desired, I proceed on the basis that Article 8ZB (a) deems the use of the methods of sending in Article 8ZA to be the valid giving of notice and (b) deems that notice to have given on the specified day, but leaves the person affected (or for that matter the SSHD if the need arises) free to prove (a) that he was not in fact given notice and/or (b) that it was not given on that day.”

As Floyd LJ explained at paragraph 20,

“The issue which really divided the parties on this appeal was what amounts to the giving of notice. On the most generous approach (to the appellants) to this issue, the requirement for the giving of notice could mean that the person affected must become aware of the contents of the decision. On this approach the person affected must not only have the notice in his hands, but must also have opened the envelope or other medium by which it is delivered and read it. The difficulty with this approach is that those who do not trouble to open their mail, or collect recorded delivery items from the Post Office, or look at their emails, can effectively insulate themselves from being given notice.”

Floyd LJ reached the following conclusion:

“28.

In UKI (Kingsway) Ltd v Westminster City Council [2018] UKSC 67, [2019] PTSR 128, Lord Carnwath cited with approval at [15] the observation of Lord Salmon in Sun Alliance and London assurance Group v Hayman [1975] 1 WLR 177:

‘According to the ordinary and natural use of English words, giving a notice means causing a notice to be received. Therefore, any requirement in a statute or a contract for the giving of a notice can be complied with only by causing the notice to be actually received—unless the context or some statutory or contractual provision otherwise provides….’

29.

In my judgment, the giving of notice for the purposes of section 4(1) of the 1971 Act and the 2000 Order does not require that the intended recipient should have read and absorbed the contents of the notice in writing, merely that it be received. If it were not so, a failure to open an envelope containing the notice, for whatever reason, would mean that notice was not given. Similarly, I do not consider that the recipient must be made aware of the notice. Again, a recipient who allows mail to accumulate in a mailbox or on a hall table will not be aware of the notice. Proof of such facts should not enable the person to whom the mail is addressed to establish that the notice was not given, by being received.

30.

Receipt, and thus the giving of notice, can plainly be effected by placing the notice in the hands of the person affected. So much is recognised by Article 8ZA(2)(a). In my judgment, however, receipt in the case of an individual is not so limited. Receipt of an email, for example, will be effected by the arrival of the email in the inbox of the person affected. Likewise, documents arriving by post will normally be received if they arrive, addressed to the person affected at the dwelling where he or she is living, at least in the absence of positive evidence that mail which so arrives is intercepted. A document received at an address provided to the SSHD for correspondence is received by the applicant, even if he does not bother to take steps to collect it.

31.

It follows that the burden of proving the negative, non-receipt, in the face of convincing evidence leading to the expectation of receipt, will not be lightly discharged. In particular it will not be discharged by evidence, far less by mere assertion, that the notice did not come to the attention of the person affected,

32.

It is not unreasonable to assume that judges in the Administrative Court will often be faced with applications for permission to apply for judicial review based on factual allegations that litigants did not receive notices in writing or other documents curtailing their leave to remain, and that in consequence the exercise by the SSHD of her powers in relation to that litigant have not been validly exercised. Some examination of the merits is necessary at the permission stage. I think that the test which should be applied is whether the material before the court raises a factual case which, taken at its highest, could properly succeed in a contested factual hearing. If so, permission should be granted, subject to discretionary factors such as delay (compare by way of example R (FZ) v London Borough of Croydon [2011] EWCA Civ 59 at [6] to [9]).

33.

Drawing this together, when considering permission to apply for judicial review in such cases the following points should be borne in mind in the light of the above discussion:

(a)

where a method of sending within Article 8ZA (2) or (3) has been followed, the burden falls on the litigant to show he has a real prospect of establishing that the document was not received in the sense in which I have interpreted that word;

(b)

at the permission stage, the litigant will need to do more than show that the notice did not come to his attention, but establish how he proposes to show that it was never actually received in the sense which I have explained;

(c)

subject to discretionary factors such as delay, the question will be whether the material before the court raises a factual case which, taken at its highest, could properly succeed in a contested factual hearing;

(d)

each case will nevertheless depend on its own facts.”

The Home Office has provided guidance to its case workers entitled “Cancellation and Curtailment of permission” (“the Guidance”). The relevant version of the Guidance (version 2.0), included the following, under the heading “Service of non-appealable cancellation decisions to an email address”:

“In non-appealable cases only, where you have a recorded email address and particularly where records show the individual is not in the UK or previous attempts to serve the notice to a correspondence address have failed, you must where possible serve the notice to an email address that the individual or their legal representative provided for the purpose of correspondence with the Home Office.

….

When serving a cancellation decision to an email address, you must always

…

•

record on the casework system:

◦

the email address that you sent the notice

◦

the date on which you sent it

•

make sure the correct decision letter is attached to the email

•

if you receive a delivery receipt, record the delivery receipt response on the casework system to confirm service.”

A decision to cancel or curtail leave is “non-appealable” and may only be challenged by judicial review. Rule 28(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (“UTPR”) provides:

“… an application [for permission to apply for Judicial Review] must be made promptly and, unless any other enactment specifies a shorter time limit, must be sent or delivered to the Upper Tribunal so that it is received no later than 3 months after the date of the decision, action or omission to which the application relates.”