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

The appellant, who was born in 1997, is an Indian citizen. He arrived in the UK on 23 December 2021, having been granted leave to enter as a student from 14 December 2021 to 18 August 2023.

On 18 July 2022, the appellant’s sponsor, Sheffield Hallam University, informed the Secretary of State for the Home Department (“SSHD”) that he was no longer sponsored by the university and had stopped studying there.

On 23 March 2023, the SSHD cancelled the appellant’s leave by sending an email attaching a notice which began: “Your permission to enter as a student has been cancelled so that it now ends on 22 May 2023”. It continued by informing the appellant that he now had until 22 May 2023 “to either leave the UK or make another application to stay here”. It informed him that he did not have a right of appeal or administrative review against the decision, but added that, if he thought an error had been made in the decision, he could make an error correction request by following the process set out in guidance found on the gov.uk website, for which a link was provided. The notice included a summary of the reasons for the decision as set out in the previous paragraph. It added: “If you think you have a reason to stay in the UK that you have not yet told us, you must tell us now. If you do not tell us as soon as you can of any reasons why you should be allowed to stay, and you apply later, you may lose any right of appeal against a refusal of that application. If you want to seek legal advice you must do so now.”

The email enclosing the notice was sent to an address supplied by the appellant. It is his case, however, that he never received it.

On 24 June 2023, solicitors then acting for the appellant served a letter before claim on the SSHD under the Judicial Review Pre-Action Protocol in the following terms:

“The Applicant is a Tier 4 Student who arrived in the UK on 23 December 2021 to study at Sheffield Hallam University. The Applicant got himself enrolled at the University and started his course. However, due to issues surrounding course learning the Applicant was de-enrolled by the University.

Following the University notification, the Applicant tried his best to reach to a different provider however as her [sic] current visa condition only enables her to study at the Sheffield Hallam University no other institute enrolled him. Our client has been informed once he receives the curtailment notice from the UK VJ it's only then he could be given Confirmation of Acceptance for Studies (CAS) letter by a new institute.

Our client has been since then awaiting a curtailment notice before he can embark upon a course of further studies.

Details of Action the Defendant is expected to take:

The Respondent is expected to investigate this matter and serve a curtailment notice within next 14 days enabling the Applicant to switch to a different provider. Alternatively, if we will not receive a response by 14:00 PM, 10 August 2023 we have definite instructions from our client to lodge an application for Judicial Review.”

On 27 June 2023, the Home Office responded, stating that their record showed that the appellant’s leave was curtailed so as to be valid only until 23 May 2023 and that this had been served on him by email on 23 March 2023 “and is therefore deemed received”.

On 6 July 2023, the appellant’s solicitors wrote again to the Home Office, reiterating his account, reciting the relevant parts of Articles 8ZA and 8ZB of the 2000 Order and parts of the Guidance, and setting out grounds for judicial review, which included a denial that the appellant had received an email curtailing his leave on 23 March 2023. On 20 July, the Home Office replied, repeating its case that the curtailment notice was served via email on 23 March, and enclosing a copy of the notice.

On 4 September 2023, the appellant issued proceedings for judicial review in the Upper Tribunal (“UT”). His case set out in his statement of facts and detailed grounds of review was that the SSHD had failed to follow her policy guidance. The version of the Guidance quoted in the grounds was version 16.0. In fact, the version then in force was version 2.0 although there was no material difference between the versions. In the grounds of review, the appellant stated:

“The policy requires the Respondent to send the decision with a 'delivery receipt' request, record the delivery receipt response on CID to confirm service. The words used in the policy "must always" place an absolute obligation under the policy guidance on the Respondent to ensure the email delivery receipt is recorded on the GCID system to safeguard an Applicant against errors etc. Again, despite of specific request in the pre-action correspondence, the Respondent has not provided any evidence as yet.”

Having cited the law as set out above, the grounds continued:

“It is the Applicant's case is that he never received the claimed curtailment decision of 23 March 2023. The burden does not lie on the Applicant to prove a negative i.e. establish that he did not receive notice, but rather it is on the Secretary of State to prove the positive case, i.e. that he did. There exists no evidence of discharging the said burden.”

The application was supported by a statement signed by the appellant dated 1 September 2023 in which he stated:

“4.

Sometime in 2022, Sheffield Hallam University removed me from their enrolment due to difficulties I encountered with my course. Despite my efforts to transfer to another institution, my current visa restrictions only permit me to study at Sheffield Hallam University, making it impossible for other institutions to admit me to switch to a different institute. I further contacted a student consultant who advise me to wait until the Home Office serve me with a curtailment notice giving me 60 days to find a different sponsor.

5.

As I did not receive any correspondence from the Home Office On 24 June 2023, hence I contacted my Solicitor to write to [the] Home Office requesting them to make a curtailment decision.

6.

On 27 June 2023, my Solicitor received a response from the Home Office, stating that a notice had been sent via email around 23 March 2023 which curtailed my leave to 23 May 2023. This meant I was on overstayer and unable to make any sort of application.

7.

I want to reiterate that I have not received any notice or email regarding the curtailment of my leave. I want to confirm to the Court that I never received the Respondent's decision. I have no reason to deceive or provide false information to the Court.

8.

I wish to state that I was denied an opportunity by the Respondent to take admission in a different college. I attended many institutions to take admission, however, all of them requested a 60-day letter from the Home Office. Following receipt of the Home Office correspondence I approached for further studies and required information as to my status. I had to make a frank disclosure that currently I had no leave. After knowing the said information no college was willing to enrol me at the course.”

On 11 October 2023, the SSHD filed and served acknowledgment of service and summary grounds of defence. In the defence, it was stated:

“14.

The Applicant’s email address and date on which the decision was served is recorded in the casework system.

15.

The Respondent submits that delivery receipts are only required to be recorded if one is received. 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 by the Respondent.

16.

The Respondent submits that the Applicant has not substantiated his claim that the Respondent did not effect service of the decision under challenge.”

On 14 December 2023, permission to apply for judicial review was refused by a UT judge on the papers. On 21 December 2023, the appellant filed notice for renewing the application at an oral hearing. On 11 March 2024, that hearing took place before UT Judge Lesley Smith. At the end of the hearing, she announced her decision and reasons for refusing the application, substantively and on grounds of delay. She also refused an application for permission to appeal.

The reasons for the UT judge’s decision were expressed succinctly. I therefore set them out in full:

“(1)

The Applicant applies for permission to challenge the Respondent’s decision dated 23 March 2023 curtailing the Applicant’s student leave as at 22 May 2023 (“the Decision”).

(2)

Time in judicial review runs from date of decision not date of receipt. That is expressly so in this Tribunal by reason of the Tribunal Procedure (Upper Tribunal) Rules 2008. That is a different issue from that raised in Anufrijeva in the House of Lords or Secretary of State for the Home Department v Ahmadi [2013] EWCA Civ 512. Those judgments concern the issue whether a notice is effectively served and do not affect the general principle regarding the date from when time runs in a judicial review.

(3)

Here the Applicant did not seek an extension of time and there is therefore no good reason offered as to why the judicial review was not issued until 4 September 2023. Even assuming in the Applicant’s favour that he did not receive it as he asserts, at the latest he had it on 20 July 2023 and there is no good reason offered for failing to issue the judicial review promptly after that date. The delay is significant on either date.

(4)

As to whether there is any other reason to extend time, I take into account the substance of the Applicant’s case. He says that he did not receive the Decision until 20 July 2023. The Decision was sent to him by email at an address he had provided. Effective service is governed by the Immigration (Leave to Enter and Remain) Order 2000 (as amended) (“the 2000 Order”). As confirmed by the Court of Appeal in R (oao Alam and Rana) v Secretary of State for the Home Department [2020] EWCA Civ 1527, service by email is effective unless the presumption is rebutted by the Applicant. Here, there is nothing beyond mere assertion by the Applicant that he did not receive the Decision which is inadequate on the Court of Appeal’s view to discharge the burden of proving non-receipt.

(5)

The Respondent’s guidance on curtailment (Home Office Policy Guidance Curtailment (Version 16.0)) (“the Guidance”) is not arguably material to the issue of effective service. Even if it were, the Applicant’s case is not arguable. The Guidance requires the recording of a delivery receipt if one is received. That it might not be is explained at [15] of the Respondent’s summary grounds. The Guidance does not arguably require the recording of the fact of having requested a delivery receipt as is asserted by the Applicant. No inference can be drawn from the absence of any mention of a delivery receipt request in the CID notes. The Respondent is not arguably required by the Guidance to prove that he requested a delivery receipt.

(6)

The Applicant’s case is therefore without substantive arguable merit. I therefore refuse permission on the substance.

(7)

There being no good reason advanced for the delay in bringing this judicial review and with the absence of any other reason to extend time, I refuse permission also on grounds of delay.”

On 19 March 2024, the appellant filed a notice of appeal to this Court, advancing two grounds:

Under CPR rule 52.9(3)(a), a notice of appeal against a decision of the UT to refuse permission to apply for judicial review must be filed within 7 days of the decision of the UT refusing permission to appeal to the Court of Appeal, where that decision was made at a hearing. In the present case, the notice of appeal to this Court was filed a day late, on 19 March, without any application being included within the appeal notice for an extension of time. In the appeal notice, the order under appeal was stated to have been made on 12 March. On 2 June 2024, the SSHD filed a response under PD52C paragraph 19, asserting that the appeal notice had been filed out of time and that no application for an extension of time had been made in the appeal notice. He also objected to the reference in the appellant’s skeleton arguments to two additional statements which had not been before the UT and for which the appellant had not sought permission to adduce on appeal.

In a letter to the Civil Appeals Office dated 6 June 2024, the appellant’s solicitors contended that, although the UT judge had announced her decision on 11 March, its written notice with reasons was promulgated on the following day, that time for bringing an appeal ought to start on the date the decision notice was handed down, and that the appeal notice in this case was therefore filed in time. Alternatively, they sought an extension of time on the grounds that they delay was “marginal”. So far as the statements were concerned, the appellant’s solicitors stated that they were not seeking to rely on them to argue that the UT erred in law, but had provided them “in accordance with our duty to present full and accurate representation of all material facts”.

On 5 August 2024, permission to appeal was granted by Nugee LJ on both grounds. He adjourned the question of an extension of time to the hearing of the appeal.

On 3 September 2024, the SSHD filed a respondent’s notice inviting this Court to uphold the UT’s decision on other grounds:

“The appellant’s ground for judicial review were not properly arguable with a realistic prospect of success in the light of Articles 8ZA and 8ZB of the Immigration (Leave to Enter and Remain) Order 2000.

Without prejudice to the generality of the foregoing, the Court of Appeal was correct in R (Alam) and R (Rana) v SSHD [2020] EWCA Civ 1527 at [30] to observe that, for the purposes of Articles 8ZA and 8ZB of the 2000 order, notice of a decision by email is constituted by receipt which is effected by the arrival of the email in the email inbox of the person affected and, given this, but in any event, the evidence before the UT did not give rise to a factual case which, taken at its highest, could properly succeed in a contested factual hearing.”

On 24 January 2025, the appellant’s solicitors filed an application notice in form N244 asking this Court to make the following order:

“(1)

If the appellant’s notice was filed out of time, time should be extended.

(2)

If the appellant requires permission the appellant has permission to rely on his witness statement dated 4 April 2024 and witness statement of his sponsor dated 19 April 2024.”

The notice set out reasons for inviting the Court to grant these applications and proposed that it should hear submissions on them at the appeal hearing.