Case No. UKUT-00281(IAC)

” if the address is provided to the Secretary of State by a third party such as a sponsor educational institution unless the third party is the authorised agent of the person. 2. However, where no postal address (or e-mail address) for correspondence has been provided, an address provided by a third party may be the “last-known or usual place of abode” of the person within Art 8ZA(3)(a) to which a notice may be sent. JUDGMENT JUDGE GRUBB: 1. The applicant seeks to challenge by way of judicial review the decision of the Secretary of State taken on 30 July 2014 refusing him leave to remain based upon his private life in the UK under the Immigration Rules (HC 395 as amended) and Art 8 of the ECHR. 2. The applicant does not challenge the substance of the respondent’s decision. Instead, the applicant contends that he has an in-country right of appeal against that decision to the First-tier Tribunal. The Claim 3. The basis of that claim is as follows. The applicant entered the UK on 5 February 2013 with entry clearance (taking effect as leave to enter) valid until 13 June 2014 as a Tier 4 (General) Student to study at Cranford College. 4. The applicant claims that when he made his application for further leave on 4 June 2014 that was before the expiry of his leave to enter and that, therefore, he had an in-country right of appeal under s.82(1) and 82(2)(d) of the Nationality, Immigration and Asylum Act 2002 (the “NIA Act 2002”). 5. The applicant contends that the respondent’s decision to curtail his leave with effect to 20 January 2014 set out in a letter dated 21 November 2013, based upon the applicant having completed his studies, was ineffective. 6. The applicant contends that the respondent’s letter of 21 November 2013 was not sent in accordance with the provision of the Immigration (Leave to Enter and Remain) Order 2000 (SI 2000/1161 as amended by SI/1749) (the “2000 Order”) and was not, therefore, properly “given” in accordance with s.4(1) of the Immigration Act 1971. 7. Whilst it is accepted that the letter was sent by recorded delivery to an address provided by the applicant’s sponsor to the Secretary of State on request, the applicant contends that was not a proper method of service falling within Art 8ZA of the 2000 Order, in particular Art 8ZA of the 2000 Order. 8. The applicant also contends, though somewhat more weakly, that – even if the curtailment decision was sent in accordance with Art 8ZA – the applicant had rebutted the presumption that notice was “given” under Art 8ZB of the 2000 Order. 9. It is not contended by the applicant that the curtailment decision was other than a lawful decision under para 323A(a)(ii)(2) of the Immigration Rules on the basis that Cranford College had informed the Secretary of State on 4 September 2013 that the applicant had ceased studying with them. 10. The only issue is whether that curtailment notice was properly served (“given”) so as to lawfully curtail the applicant’s leave, by its terms, to 20 January 2014. 11. If the curtailment was lawful and so effective, then the applicant did not have leave thereafter and he has no right of appeal against the refusal of his leave on 30 July 2014. By contrast, if his leave continued until 13 June 2014, because it had not lawfully been curtailed, then his application for further leave made on 6 June 2014 was in time and the refusal to vary (by extension) his leave would give rise to a right of appeal under s.82(1) against an immigration decision falling within s.82(2)(d) of the NIA Act 2002. Preliminary Matters 12. Two preliminary matters were raised by the Secretary of State in the detailed grounds of defence and in the skeleton argument of Mrs Gray, who represented the respondent. 13. The first concern, the issue of the timeliness of the applicant’s application for judicial review. That matter arises in this way. The decision to refuse the applicant leave was made on 30 July 2014. However, the claim form sought, on its face, to challenge the respondent’s response on 1 September 2014 to the pre-action Protocol letter refusing to reverse her decision of 30 July 2014. The claim form was sealed by UTIAC on 1 December 2014. It was, therefore, outside the three month limit for challenging the decision of 30 July 2014. 14. This was not a point raised by the respondent in the acknowledgement of service or at the oral renewal hearing on 10 September 2015 when I granted permission to bring these proceedings. The matter was only raised by Mrs Gray in the detailed grounds of defence dated “October 2015” (and therefore subsequent to the oral renewal hearing) and in her skeleton argument for the substantive hearing dated 4 March 2016. 15. Before me, Mrs Gray accepted that she could not take the time point at this stage of the proceedings. She referred me to a decision of the House of Lords in R v Criminal Injuries Compensation Board, ex parte A [1999] 2 AC 330. She accepted that the House of Lords, in the speech of Lord Slynn of Hadley (with whom the other Law Lords agreed), concluded that a timeliness issue, and in particular the issue of extending time, could not be considered at the substantive hearing. Lord Slynn said this: “If leave is given, then unless set aside, it does not fall to be re-opened at the substantive hearing on the basis that there is no ground for extending time under Order 53, R4(1). At the substantive hearing there is no ‘application for leave to apply for judicial review’ leave having already been given.” 16. Mrs Gray accepted that, in the light of this, it was not open to the Secretary of State to now take the point that the applicant’s claim was out of time and that time should not be extended. 17. That concession, in my judgment, disposes of this point. It is a matter of some regret that the issue of timeliness was not raised earlier in the proceedings and was only raised, in effect, in preparation for the substantive hearing after permission had been granted at the oral hearing. 18. I would simply add that, applying the approach to the issue of extending time set out in SS (Congo) and Others v SSHD [2015] EWCA Civ 387, in particular at [93], I would consider this to be a proper case to extend time. The delay of a month is substantial and I would conclude that it is “serious” though not “significant”. There has been no explanation for the delay offered. However, there is little, if any, prejudice to the respondent beyond the fact of the decision being subject to challenge and the claim raises an important point on the proper application of the 2000 Order. This would, I venture to say, be a proper case to extend time. However, given the stance taken by Mrs Gray the issue of timeliness does not arise. 19. The second matter raised by Mrs Gray concerned the state of the applicant’s grounds of claim. At the oral renewal, the applicant’s (then) Counsel sought to rely upon grounds different from those set out in the claim form. Although there was no formal direction to prepare amended grounds reflecting the basis upon which permission had been granted, Mrs Gray (who represented the respondent at that hearing also) indicated that she had been expecting a set of amended grounds from the applicant’s representatives. None have, in the result, been filed with the Tribunal with the appropriate application to amend. 20. At the hearing, I suggested that a possible course was to treat the skeleton argument of Mr Syed-Ali (who now represented the applicant) as being the amended grounds. Mrs Gray accepted that the Secretary of State had in her detailed grounds of defence and skeleton argument anticipated the amended grounds and the basis of the applicant’s claim that the curtailment decision was ineffective, that being the basis upon which permission had been granted. She did not demur from my taking Mr Syed-Ali’s skeleton argument as a set of amended grounds. I am content to do so and grant the applicant permission to amend his grounds accordingly. To do otherwise would elevate form over substance given the absence of any prejudice or misunderstanding as to the basis of the applicant’s claim in this case. 21. With those preliminary matters put aside, I turn to the substance of the applicant’s claim. The Relevant Provisions 22. The relevant legal provisions concerned with the giving of notice are contained within s.4(1) of the Immigration Act 1971 and 2000 Order as amended by the Immigration (Leave to Enter and Remain) Amendment Order 2013 (SI 2013/1749) with effect from 12 July 2013. The latter deals with the provision of notice of decisions not subject to appeal to the First-tier Tribunal under the NIA Act 2002 such as the decision in this case to curtail the applicant’s leave but not with immediate effect. The provisions are considered and analysed in my recent decision in R (Arslan Mahmood) v SSHD (effective service – 2000 Order) IJR [2016] UKUT 0057 (IAC) from which judgment I gratefully borrow what follows. 23. Section 4(1) of the Immigration Act 1971 requires notice in writing to be given of a decision, inter alia , to vary a person’s leave under s.3(3)(a) of the 1971 Act. So far as relevant s.4(1) provides as follows: “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, unless otherwise allowed by or under this act, those powers shall be exercised by notice in writing given to the persons affected, except that the powers under section 3(3)(a) may be exercised generally in respect of any class of persons by order made by statutory instrument.” 24. The power to vary an individual’s limited leave to enter or remain includes “restricting … the limitation of its duration and …” and thus encompasses the power to curtail an individual’s leave. Section 4(1) provides that “notice in writing” of such a decision shall be “given” to the person affected. 25. Section 3A of the 1971 Act empowers the Secretary of State by Order to make provision with respect to varying leave to enter in the UK (s.3A(1)) and, in particular, to provide for the “form or manner” in which leave may be varied (s.3A(2)(a)). Similar powers can be found in s.3B of the 1971 Act in respect of varying leave to remain. 26. Prior to 12 July 2013, there was no statutory instrument which dealt with the giving of notice for non-appealable decisions. The giving of notice of decisions which were appealable to the First-tier Tribunal under the NIA Act 2002 was provided for in the Immigration (Notices) Regulations 2003 (SI 2003/658 as amended). Non-appealable decisions remained subject to the common law and, as the Upper Tribunal held in Syed (curtailment of leave – notice) [2013] UKUT 00144 (IAC), the requirement that the decision (there a non-appealable curtailment decision) should be “communicated to the person concerned” (see [28]). As a consequence, a notice served “to file” had not been “given” in accordance with s.4(1) of the 1971 Act and was, as a consequence, ineffective to curtail an individual’s leave. 27. As a consequence of Syed , the 2000 Order was amended with effect from 12 July 2013 to contain provisions dealing with the giving of notice and presumptions in respect of receipt in respect of non-appealable immigration decisions such as the curtailment decision in this case. Those provisions are in Arts 8ZA and 8ZB of the 2000 Order and are central to this case. 28. Article 8ZA sets out the methods and means by which a notice in writing may be “given”: “ Grant, refusal or variation of leave by notice in writing (1) A notice in writing - (a) giving leave to enter or remain in the United Kingdom; (b) refusing leave to enter or remain in the United Kingdom: (c) refusing to vary a person’s leave to enter or remain in the United Kingdom: or (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. (5) Where a notice is deemed to have been given in accordance with paragraph (4) and then subsequently the person is located, the person shall as soon as is practicable be given a copy of the notice and details of when and how it was given. (6) A notice given under this article may, in the case of a person who is under 18 years of age and does not have a representative, be given to the parent, guardian or another adult who for the time being takes responsibility for the child.” 29. Article 8ZB provides for certain rebuttable presumptions of when notice has “been given” when a notice is sent in accordance with Art 8ZA. So far as relevant, it is in the following terms: “ Presumptions about receipt of notice (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 28 th 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…..”. 30. The scope and application of these provisions was considered in my recent decision of R (Arslan Mahmood) v SSHD . At [37], I summarise the effect of Art 8ZA as follows: “As will be seen, Art 8ZA(2) provides a number of methods by which a notice “may be given to the person affected” as required by s.4(1) of the 1971 Act. Notice may be given by hand; sent by fax; sent by post to the address provided by the individual or his representatives for correspondence or electronically by e-mail to the e-mail address given “for correspondence” by the individual or his representatives. Art 8ZA(3) provides that where no postal or e-mail correspondence address is given, the notice may be sent by post or electronically to a number of other possible addresses relating to the applicant or his representatives such as the last known place of abode or study or e-mail address. Finally, by virtue of Art 8ZA(4) where attempts to give notice by these methods have failed or are not possible, then the decision may be served “on file” and is deemed to have been given. Although in this latter situation, where the person is subsequently located he must be given a copy of the notice as soon as is practicable (Art 8ZA(5)).” In Mahmood , the central issue was whether a curtailment decision sent to an e-mail address provided by the individual in his visa application form had been “given” in accordance with s.4(1) and the 2000 Order in circumstances where the individual claimed that he had no access to the e-mail account at that address. 31. In Mahmood , I concluded that a notice of decision was “given” when it was “sent” in accordance with a method set out in Art 8ZA and was delivered to the individual’s postal or e-mail address given for correspondence according to that method. I concluded that Art 8ZB, when it applied, created rebuttable presumptions of both delivery and the date of delivery. There was no requirement that the individual should have actual knowledge of the notice or its contents. Consequently, subject to rebuttal, a notice of curtailment decision attached to an e-mail sent to an individual’s e-mail (correspondence) address was “given” on the day it was sent and delivered to the individual’s e-mail address. 32. In this claim, Mr Syed-Ali’s principal point is that the notice of curtailment sent to a postal address provided by the applicant’s sponsor institution was not, as required by Art 8ZA(2)(c), sent by postal service to a postal address “provided for correspondence by the person ” (my emphasis). 33. In my judgment, that submission is correct. Article 8ZA(2)(c) does not contemplate the provision of a correspondence address to the Secretary of State by an applicant through a third party in general. That, in my judgment, is the natural and ordinary meaning of the words “provided … by the person”. As a matter of ordinary usage of language, where the source of the address (postal or e-mail) is not the individual themselves, it will not, in general, be provided by the person if provided to the Secretary of State by a third party. It is rather provided