Decisions to curtail leave to remain: when are they effective?
In R (Hafiz Muhammad Zubair Javed) v Secretary of State for the Home Department  EWHC 4426 (Admin) the Administrative Court was asked to consider when a written notice of a decision to curtail leave to remain in the UK is effective.
Mr Javed had leave to remain in the UK as a Tier 4 student, valid until 30 October 2014. On 3 March 2013 the Secretary of State wrote to Mr Javed informing him of her decision to curtail his leave as his sponsoring college had previously been stripped of its sponsor licence (“the Notice”). The Notice stated that the curtailment was due to take effect on 3 May 2013 and purported to be served in accordance with the Immigration (Notices) Regulations 2003 (as amended); it was sent to Mr Javed’s address by Royal Mail Recorded Delivery.
On 12 June 2013 Mr Javed attended a Public Enquiry Office and applied for further leave to remain in the UK. He was informed that the application would be refused as it was being made more than 28 days after his previous leave had expired. Mr Javed stated that he had not received the letter of 3 March 2013 but the only way to challenge this decision was by way of judicial review. Permission was granted – the issue being whether the Notice was served effectively on Mr Javed.
The judicial review proceeded on the basis that the Regulations were not relevant as Mr Javed had had no right of appeal against the Notice of curtailment in any event. The relevant statutory provision was therefore s3(3) of the Immigration Act 1971 – which states that, unless otherwise allowed under that Act, the Secretary of State’s power to vary leave must be exercised “… by notice in writing given to the person affected …”. The Secretary of State argued that written notice of the decision had been given to Mr Javed; he argued that it had not. The High Court found in favour of Mr Javed.
Reasons for the Decision
This decision was founded upon the Royal Mail delivery records submitted by the Secretary of State to establish that delivery had been made. Those records showed that the delivery had been signed for by one “Ansari”, rather than by Mr Javed. As previous case law stated that the Secretary of State could not rely on deemed postal receipt, it was for the Secretary of State to prove that Mr Javed had actually and personally received the Notice (for example by checking whether the signature on the Royal Mail delivery records matched his signature on the Home Office records). Unsurprisingly, the Secretary of State was unable to do so. Mr Javed did need to prove that he had not received the delivery.
As Mr Javed had not been personally served with the Notice the curtailment decision his leave had not been curtailed, he still had leave to remain in the UK when he attended the Public Enquiry Office and, as no other issues arose, his fresh application on that day was bound to succeed.
The Secretary of State sought permission to appeal, primarily because she was concerned about potential floodgates of similar arguments in other cases. Permission was refused as the High Court had already rejected the floodgates argument: checking signatures match is a single additional step; communication to a person authorised to accept notice (such as an applicant’s solicitor or other legal representative) would sufficient; and the matter is historic as regulations permitting service of such decisions by post were introduced on 12 July 2013.
Some individuals may be able to benefit from this case (for example they may be lawfully present in the UK rather than being overstayers) if a curtailment notice was sent on or before 11 July 2013, depending on the particular circumstances of their case such as: where and to whom the relevant notice was sent; who signed for it; and the timing of any subsequent application for further leave to remain (if submitted). The case appears to be of limited relevance where notice of curtailment was sent after that date.
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