New Appendix SN: Service of Notices
Appendix SN is a new appendix to the Immigration Rules introduced by Statement of Changes in Immigration Rules HC877 and deals with service by the Home Office of various decisions in relation to immigration matters. It has effect for all applications made on or after 6 April 2016 and for some applications submitted before that date. It has the potential to infect almost every area of immigration practice.
The explanatory notes to Statement of Changes indicate that Appendix SN is intended to address the service of decisions that are not covered by existing legislation. As such Appendix SN is not intended to be of any relevance to an appealable immigration decision (covered by the Immigration (Notices) Regulations 2003 (as amended)) or to an unappealable immigration decision granting or refusing to grant leave to remain, varying leave to remain, or refusing to vary leave to remain (covered by the Immigration (Leave to Enter or Remain) Order 2000 (as amended)).
As drafted, Appendix SN applies to only four types of notice:
- A written notice that an application for entry clearance [to], leave to enter, or leave to remain in the UK is invalid;
- A written notice that an application for entry clearance [to], leave to enter, or leave to remain in the UK is void;
- A written notice that an application for administrative review is invalid; and
- A written notice notifying a person of the outcome of an administrative review application.
Appendix SN notices may be:
- Given by hand;
- Sent by fax;
- Sent by postal service to a postal address provided for correspondence by the person or the person’s representative;
- Sent electronically to an e-mail address provided for correspondence by the person or the person’s representative;
- Sent by document exchange to a document exchange number or address; or
- Sent by courier.
There is no specific requirement for notices given by hand, or sent by fax, document exchange or courier, to be given or sent to any particular person or address; however, even in the current deliberately hostile environment for migrants it is appears that these provisions should be read as requiring them to be given or sent to the person affected by the decision, or their representative.
These provisions appear to contain the potential for real difficulty. Appendix SN defines a person’s representative as “… a person who appears to the decisionmaker [sic]: (a) to be the representative of [the person affected by the decision]; and (b) not to be prohibited from acting as a representative by section 84 of the 1999 Act.” Thus, if the notice is sent to someone who does not represent the person, notice may still be given for the purposes of the Immigration Rules if it appears to the Home Office decision maker that they are the person’s representative.
Where no postal or e-mail address for correspondence has been provided, the notice may be sent by postal service to the last known or usual place of abode, place of study, or place of business of the person affected by the decision, or to the last known or usual place of business of the person’s representative (or apparent representative). As all notices issued under Appendix SN will be issued in response to an application of one form or another these “last known” provisions should not be relevant; however applications can be submitted without an address for correspondence it appears possible for a notice to be deemed to have been given (for the purposes of the Immigration Rules) when sent to an old college, residence, or representative. This has the potential to cause significant difficulties for those who do not keep the Home Office up-to-date as required – for example by Regulation 18 of the Immigration (Biometric Registration) Regulations 2008 (as amended).
A postal address outside the UK is not a “postal address for correspondence” if the person affected by the notice is in the UK. Whilst it is not uncommon for overseas applicants to choose to an overseas representative this may be expected to be much rarer for applicants in the UK; however where this choice is made it would be folly to rely solely on a postal address overseas.
The Home Office are aware that much of their correspondence is not, or is claimed not to have been, successfully delivered. They are also aware that in many circumstances they are unable to give notice as set out above. Appendix SN addresses both of these circumstances by stating that notice of the relevant decision is deemed to have been given on the day the relevant notice is placed on file, so long as the decision maker records the relevant reason and places the notice on file. In these circumstances the person “shall” nevertheless be given a copy the notice and details of when and how it was given as soon as practicable if that person is subsequently located.
In the absence of proof to the contrary, notice will be deemed to have been given to the person affected if notice is sent in accordance with Appendix SN. Where notice is sent by postal service to an address in the UK notice will be deemed to have been given on the second day after it was sent (not counting the day it was posted and not counting any day which is not a business day). If it is posted to a place outside the UK then notice is deemed to have been given on the 28th day after posting (not counting the day it was posted).
If the notice is sent by fax, e-mail, document exchange or courier then the notice will be deemed to be given to the person affected by the decision on the day it was sent. Although this appears to make sense for fax and e-mail it is unclear why this deeming provision should apply to courier and document exchange.
The date of deemed service can have a potentially significant impact, for example with regard to the time limits for any further action (such as an application for judicial review or a fresh application for leave within 28 days of becoming an overstayer).
It is not clear what a void application may be as this term is not defined in the Immigration Rules. Modernised Guidance published on 18 March 2016 states that an application is void “… when the Home Office cannot process it because the application is inappropriate.” Various examples of “inappropriate” applications are given; however, as confirmed by the Supreme Court in R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33, the content of Home Office policy documents do not form part of the Immigration Rules.
The explanatory notes to Statement of Changes HC877 claim that Appendix SN makes “… [other] sections of the Rules shorter and simpler” and “… sets out a unified set of provisions for service of the notice types that it covers, which provides clarity for applicants and Home Office officials.”
As too often the case with Home Office drafting, it may be that the laudable aims are not entirely met in reality.
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