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

At the outset of the hearing Mr Zane Malik KC for the appellant identified four issues for the Court:

After discussion between the Court and counsel, it was agreed that the focus of the hearing should be on the third issue – the substantive issue. The Court indicated that, if Mr Malik was right that, as a matter of principle, his client had an arguable case that the notice was not properly served, the Court would be disinclined to prevent the claim proceeding simply on the grounds that the appeal notice was filed a day late. Although Mr Biggs had opposed any extension of time in his skeleton argument, he did not press the point in the light of our indication. We also indicated that our prima facie view was that the further evidence on which the appellant now sought to rely, which we had read de bene esse, did not satisfy the test in Ladd v Marshall [1954] 1 WLR 1489. It seemed to add little to the merits of the appeal under ground 2 and, as Mr Biggs submitted, the information in the statements was plainly available prior to the hearing before the UT. On this issue, Mr Malik did not press the point in the light of our indication.

Mr Malik started his submissions on the substantive issues by addressing the law. He submitted that the “date of the decision” to cancel a person’s leave to remain from which the time for bringing a judicial review claim runs is the date on which the notice of the decision is served on the person affected. He relied on the wording of s.4(1) of the 1971 Act set out above, which provides that the powers under the Act to give or cancel leave “shall be exercised by notice in writing given to the person affected”. He stressed in particular the word “given”. Unless and until notice in writing is “given” to the person affected, there is no valid grant, refusal or variation of leave to remain.

In support of this proposition, Mr Malik cited the decisions of this Court in Secretary of State for the Home Department v Ahmadi [2013] EWCA Civ 512 [2014] WLR 401 and Mehmood v Secretary of State for the Home Department [2015] EWCA Civ 744 [2016] 1 WLR 461. In Ahmadi, Sullivan LJ said, at paragraph 22:

“Section 3 [of the 1971 Act] confers the power to give and to vary leave to remain. The first part of section 4(1) provides that this power shall be exercised by the Secretary of State. The second part of section 4(1) provides that the power "shall be exercised by notice in writing given to the person concerned." The notice in writing is not a subsequent step following the exercise of the power, it is the way in which the power is to be exercised.”

In Mehmood, Beatson LJ said, at paragraph 42:

“… section 4 of the 1971 Act explicitly provides that the power to give leave to remain or to vary any leave "shall be exercised by notice in writing given to the person affected". Accordingly, the fact that internally the Secretary of State may have decided to refuse Mr Ali's application to vary his leave on 7 July is legally irrelevant. What is legally relevant is the date and time of the service of notice in writing to the person affected. Until then there is legally no decision.”

Mr Malik submitted that this is an example of the fundamental principle, articulated by Lord Steyn in R (Anufrijeva) v. Secretary of State for the Home Department & Anor [2003] UKHL 36 at paragraph 26:

“Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so.”

Mr Malik submitted that the 2000 Order had to be read in the context of the requirement laid down in primary legislation that unless and until notice is given to the person affected there is no decision to grant, refuse or vary – including, as in this case, cancel – leave to remain in the country. Article 8ZA(1) and (2) provides that notice may be “given” inter alia if it is “(d) sent electronically to an e-mail address provided for correspondence by the person or the person’s representative”. Article 8ZB(1)(b) provides that, where notice is sent by email, it shall be deemed to have been given to the person affected, unless the contrary is proved. Mr Malik submitted that “sending” is not “giving” and that, without the presumption created by Article 8ZB, Article 8ZA would be ultra vires. The provisions of the secondary legislation are only rendered consistent with the scheme of the primary legislation by the inclusion of the rebuttable presumption that a notice sent by email is given to the person affected on the date it is sent. The person affected may rebut it by demonstrating that the email has not reached him. Determining whether or not the presumption is rebutted is the task of the fact-finding tribunal.

Mr Malik acknowledged that Floyd LJ in Alam and Rana had stated that the claimant would have to demonstrate that he has “a real prospect of establishing that the document was not received” and that “at the permission stage, [he] 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”. He emphasised the test as expressed by Floyd LJ that “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”. Mr Malik submitted that this was fundamentally a matter of evidence. By way of analogous example, he cited the decision of this Court in R (Kalsi & Ors) v SSHD [2021] EWCA Civ 184, which concerned giving notice of a decision on the administrative review of a refusal of leave to remain. The provisions governing service of such decisions set out in an appendix to the Immigration Rules are in the same terms as Articles 8ZA and 8ZB of the 2000 Order. In that case, notice of the decision had been sent by recorded delivery. Although receipt of the delivery had been signed for by someone at the address, the appellant asserted that it had not reached him so notice had not been “given”. In her judgment with which the other members of the Court agreed, Elisabeth Laing LJ had acknowledged that such an assertion was open to him, saying (at paragraph 74):

“proper postal service is taken not only to show that the decision arrived at the address, but, further, that the decision was 'given' to the applicant. However, that assumption can be displaced by evidence to the contrary. That must include evidence showing that, in fact, the decision was not 'given' to the applicant.”

In this context, Mr Malik also cited the judgment at first instance of Sheldon J in R (Escobar) v SSHD [2024] EWHC 1097 (Admin). In that case, the claimant was given permission to bring a claim for judicial review of a decision to detain and remove him.  Although a notice of curtailment of leave to remain had been sent to the claimant’s email address, the claimant contended that he did not see the email message containing it and that the email was not in his inbox. He suggested that it may have been deleted by his estranged wife, who had access to the email account. In his judgment, Sheldon J described Floyd LJ’s observation about a receipt of an email in paragraph 30 of Alam as obiter and held that it was “permissible on the facts of a particular case for an applicant to seek to persuade the Secretary of State, and subsequently the Court or relevant tribunal, that the email was intercepted before it could be read”. In the event, Sheldon J proceeded to find on the facts in Escobar that the claimant in that case had “not come close” to demonstrating that the presumption was rebutted. Mr Malik submitted, however, that Sheldon J’s observations were correct and should be endorsed by this Court.

Turning to the grounds of appeal, and dealing first with ground 2, Mr Malik argued that the UT had wrongly proceeded on the basis that the appellant’s case was no more than a mere assertion that he did not receive the notice dated 23 March 2023 and that this was insufficient to rebut the presumption. He made a number of submissions in support of this ground.

First, he submitted that the appellant’s statement to the effect that he had not received an email containing the curtailment decision, endorsed with a statement of truth, was more than a mere assertion.

Secondly, he relied on the appellant’s evidence in his first statement that, having received no correspondence from the Home Office, he asked his solicitor to write the letter before action dated 24 June 2023, requesting that a curtailment notice be served within 14 days enabling him to switch to a different provider. Mr Malik submitted that he would not have taken this action had he received the notice. The terms of the letter were consistent with the appellant’s case that he had not received the notice.

Thirdly, he contended that, given the appellant’s wish to remain in this country, it would have been absurd, had he received the curtailment notice, to have done nothing about it, and allowed himself to become an overstayer, putting himself in the position of being unable to make an application for further leave to remain.

Fourthly, Mr Malik relied on the fact that there was no reference to a delivery receipt on the SSHD’s casework record. As set out above, this point featured prominently in the detailed grounds of review drafted on behalf of the appellant, in which emphasis had been placed on what was said to be a failure by the caseworker to comply with the Secretary of State’s policy guidance about a delivery receipt. In submissions, Mr Malik stressed that he was not making a public law challenge. The fact that the casework record contained no reference to a delivery receipt being either requested or received was, however, relevant to the question whether notice had been given and was capable of providing support to the appellant’s case that it had not.

The UT judge had therefore been wrong to say that there was “nothing beyond mere assertion by the appellant that he did not receive the decision”. Applying the approach prescribed by Floyd LJ in Alam and Rana, the appellant was entitled to be granted permission to apply for judicial review if his factual case, taken at its highest, was capable of succeeding at a substantive contested hearing. Mr Malik described this as a modest threshold which was crossed in this case. Either the appellant’s evidence is correct or he is engaged in a complex deceit of the SSHD and the court. That is an issue to be determined by a fact-finder at a hearing of the judicial review claim. It was an error for the UT judge to refuse permission to bring the claim on the grounds that the appellant’s evidence was inadequate.

Turning to ground 1, Mr Malik submitted that, by saying in paragraph 2 of her reasons that “time in judicial review runs from the date of the decision not the date of receipt”, the UT judge had wrongly proceeded on the basis that time for the appellant to bring the claim started to run on 23 March 2023 when the SSHD took the decision to curtail his leave to remain. This failed to take account of the principles in Ahmadi and Mehmood cited above. If it is correct that notice of the curtailment was only given to the appellant on 20 July when a copy of the notice dated 23 March was included in a letter from the Home Office to his solicitors, the judicial review claim filed on 4 September 2023 was brought within the three-month time period. Contrary to the UT judge’s interpretation of the position in paragraph (3) of her reasons, the appellant was under no obligation to seek an extension of time nor provide a “good reason” why the claim was not issued until 4 September.

In reply, Mr Michael Biggs for the SSHD sought to extract four propositions from the decision in Alam and Rana. First (paragraph 19), the combined effect of Articles 8ZA and 8ZB is that there is a rebuttable presumption that notice is given where it is sent using the relevant method in Article 8ZA (b) to (f) Secondly (paragraphs 28 to 30), notice is “given” when it is “received”. The question therefore is whether there was evidence to rebut the presumption of receipt. Thirdly (paragraph 30), there is receipt where the method of giving notice is completed. Fourthly (paragraphs 31 to 33), there is a weighty burden on a person seeking to rebut the presumption.

Mr Biggs submitted that, where service is effected by email, the method of service concludes when the email arrives in the recipient’s inbox. He acknowledged that there was scope for interception to prevent receipt of the notice in the case of physical mail after delivery at the address, but not in the case of email after arrival in the inbox. He accepted that it was possible, for technical reasons, for an email not to arrive in the inbox, but submitted that, after it arrived, the method of service provided for in Article 8ZA(2)(d) was concluded. The rules provided “bright lines” which were necessary for good administrative reasons, even if they sometimes resulted in hard outcomes.

Mr Biggs refuted the suggestion that the giving of notice by email could be precluded if it was intercepted after arriving in the inbox. He submitted that this was not conceptually possible because it conflated knowledge of the contents of the email with the idea of receipt of the email. All that was required was that the individual had the opportunity of gaining knowledge of the contents. Mr Biggs submitted that the observations of Floyd LJ in Alam and Rana, with which other members of the Court agreed, as to what constitutes receipt by email is part of the ratio decidendi of those appeals, because it formed a necessary part of the Court’s reasoning in support of its decision to dismiss the appeals, and is therefore binding on this Court. He therefore invited this Court to disapprove Sheldon J’s observation in Escobar that a cancellation decision received into the email inbox of the person affected could be “intercepted”. He submitted that allowing for the possibility of interception would undermine the purpose of the 2000 Order as it allowed for a person affected by a notice to claim that it had been deleted inadvertently or by a third party, which was, in Mr Biggs’ words, “an obvious avenue of abuse for the unscrupulous or desperate”.

On the facts of this case, Mr Biggs submitted that the evidence adduced by the Secretary of State led to a clear inference that the email was received by the appellant. He relied on the terms of the email, the fact that the appellant’s email address was correctly recorded on the SSHD’s casework system, and the entry in the record showing that the email containing the letter had been dispatched. This amounted to compelling evidence that the email had been sent and in the ordinary event that amounts to compelling evidence that it was received. He described the evidence in the appellant’s first statement as no more than a bare denial and at a high level of generality. He pointed out that there were inconsistencies between the solicitor’s letter of 24 June 2023 and the later statements which the appellant now sought to file as fresh evidence on appeal (although Mr Biggs accepted that, as he was opposing the application to admit that evidence, this point was no more than rhetorical). He submitted that it was open to the UT judge to conclude on the evidence that there was no realistic prospect of the appellant succeeding at trial. Mr Biggs added that the evidence in Escobar was stronger, yet Sheldon J at trial had found it had “not come close” to rebutting the presumption. He submitted that the evidence in both cases considered by this Court in Alam and Rana was stronger than the evidence in the present case, yet in neither case was it held sufficient to justify granting permission.

On the issue of the delivery receipt, Mr Biggs pointed out that the appellant was no longer contending that the decision to curtail leave was made unlawfully because the SSHD had failed to comply with her policy. In answer to questions from the Court, however, he acknowledged that the SSHD was unable to say whether a delivery receipt had been requested. It was normal practice for a receipt to be requested but there was no provision on the casework system for a record to be made that a delivery receipt had been requested. It only allowed the caseworker, in compliance with the Guidance, to record the response to the delivery receipt request. Mr Biggs drew attention to the observation in paragraph 15 of the summary grounds of defence (quoted above) that “the nature of delivery receipts is that the recipient has the ability to determine whether a receipt is sent and receipts are not always received despite a request being sent”. Mr Biggs conceded, however, that one possible inference from the fact that there is no record of a delivery receipt on the casework system was that it had never been requested. He accepted the proposition put by Peter Jackson LJ that this was bound to be relevant to the degree of improbability of the individual’s case that they never received the notice.

Mr Biggs submitted that the UT judge was therefore entitled to find that the evidence before her, taken at its highest, did not create a realistic prospect of success on the appellant’s case that he did not receive the cancellation decision on 23 March 2023 and therefore to refuse the application for permission to apply for judicial review. Accordingly ground 2 should be dismissed.

Mr Biggs submitted that in those circumstances, the matters raised under ground 1 of the appeal were wholly academic. In a supplementary skeleton argument, however, and in submissions developed in oral argument, he argued that in any event there was no merit in ground 1. There was no reason why the words used by the Tribunal Procedure (Upper Tribunal) Rules should not be given their ordinary meaning, so that time started to run from the date the decision to curtail leave was made rather than the date on which it came to the knowledge of the person affected. Mr Biggs sought to draw a distinction between what he called the “factual decision” and the “legally valid decision” as described in Ahmadi and Mehmood. The key date for calculating the time for bringing a judicial review claim was the date of the Secretary of State’s “factual decision” to curtail leave and not the date on which notice of the decision was given to the person affected. Mr Biggs added that upholding this interpretation would ensure a principled consistency between the procedure in the Upper Tribunal and the Administrative Court where, under CPR r.54.5, the clock starts to run from the date of the decision to be challenged, not from the date of the claimant’s knowledge of it. That has been has been the rule in the Administrative Court since the decision of this Court in R v Department of Transport ex parte Presvac Engineering [1992] 4 Admin LR 121, and remains the rule as recognised by Chamberlain J in R (Housing Community Interest Company) v Regulator of Social Housing [2020] EWHC 346 (Admin) and reflected in the Administrative Court Guide (2024) at section 6.4.2.2. Mr Biggs submitted that a delay between the making of the decision and the individual becoming aware of it could be taken into account when the tribunal is considering exercising its discretion to extend the period in which the claim could be made: see Purchas LJ in ex parte Presvac, supra, at page 133-4.