Service of non-appealable immigration decisions
Save for visitors and those authorised to obtain leave to enter the UK by passing through an automated gate, the statutory power to give or refuse leave to enter the UK and to give leave to remain or to vary any (duration of or conditions attached to) a person’s leave to remain; must be exercised by notice in writing given to the person affected: section 3(3)(a) and 4(1) of the Immigration Act 1971.
There are two main statutory instruments which govern the form or manner in which leave to enter or remain may be given, refused or varied. In relation to decisions appealable under the Nationality, Immigration and Asylum Act 2002 the relevant provisions are contained within the Immigration (Notice) Regulations 2003 (SI 2003/658 as amended). Until 2013, there were no specific regulations dealing with notice in respect of a non-appealable immigration decision which remained subject to the common law and, as the Upper Tribunal held in Syed (curtailment of leave – notice)  UKUT 00144 (IAC), the requirement that the decision (there a non-appealable curtailment decision) should be “communicated to the person concerned”. As a consequence, with effect from 12 July 2013, The Immigration (Leave to Enter and Remain) Order 2000 (SI 2000/1161) was amended (by SI 2013/1749) to contain provisions dealing with service of a written notice granting, refusing, refusing to vary or varying leave (Art 8ZA) and to deal with presumptions about receipt of notice (Art 8ZB). In two recent decisions, the Upper Tribunal (UTJ Grubb) has considered the effect of the amendments made to the 2000 Order in respect of non-appealable decisions: R (Mahmood) v SSHD (effective service – 2000) IJR  00057 (IAC) and R (Khurram) v SSHD (effective service; 2000 Order) IJR  UKUT 00281 (IAC).
In R (Mahmood) the central issue was whether a curtailment decision sent to an e-mail address provided by the individual in his visa application form (under the heading Visa Applicant Contact Details) had been “given” in accordance with s.4(1) of the 1971 Act and the 2000 Order in circumstances where there individual claimed he had no access to the e-mail account at that address. The Tribunal concluded that a notice of decision was “given” when it was both “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 in accordance with Art 8ZB. There was no requirement that the individual should have actual knowledge of the notice or its contents. A notice of curtailment decision attached to an e-mail sent to an individual’s e-mail (correspondence) address was “given” on the date it was sent and delivered to the individual’s e-mail address. While Art 8ZB, when it applied, created rebuttable presumptions of both time and fact of delivery or receipt of a notice; that notice will be given when the relevant method results in the notice being delivered.
Where the notice is sent by postal service to a place within the UK, unless the contrary is proved, the notice will be deemed to have been given on the second day after it was sent (excluding the day it was posted and any non-business days) by postal service in which delivery or receipt is recorded. If sent by postal service to a place outside the UK, on the 28th day after it was posted, as including non-business days. But in respect of both within and outside the UK, if the notice of non-appealable immigration decision is sent by fax, e-mail, document exchange or courier, deemed receipt is from the day it was sent.
In R (Khurram) while it was held that notice of (non-appealable) curtailment decision sent to a postal address provided by the applicant’s sponsor educational institution was not “sent” under certain provisions of the 2000 Order because it was not sent to a postal address “provided for correspondence by the person”; it was nonetheless “sent” to the “last-known or usual place of abode” of the applicant which sufficed under other provisions of the Order and as it was sent by recorded delivery it was deemed to have been given or delivered on the second day after it was sent.
As these cases show, the importance of knowing whether and when notices of non-appealable immigration decisions have been given is of great importance to a person’s immigration status and their legal entitlements that flow therefrom.
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