The Court of Appeal (CoA) confirmed the robustness of email as a valid form of service under the Immigration (Leave to Enter and Remain) Order 2000, but emphasised that the presumption of receipt is not absolute and can be rebutted with cogent evidence.
Facts:
The appellant, an Indian citizen born in 1997, arrived in the UK on 23 December 2021, with a student leave to remain valid until 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 stipulating that the leave was cancelled as of 22 May 2023. The SSHD later asserted the notice was deemed received under Article 8ZA/8ZB of the 2000 Order.
The appellant, however, denied ever receiving the email, believing he was still awaiting the formal notice required to switch sponsors. He instructed his solicitors to write to the Home Office on 24 June 2023, requesting that a curtailment notice be served to enable him to seek a new sponsor. On 27 June 2023, the Home Office responded, stating the leave had been curtailed on 23 March and served via email, thus being "deemed received". A copy of the notice was subsequently provided to the solicitors on 20 July 2023.
The appellant then filed for judicial review on 4 September 2023, challenging the validity of the notice's service and arguing that his claim was made within the three-month time limit from the date his solicitors received the copy of the notice.
The Upper Tribunal (UT) refused permission for judicial review on the grounds of a lack of substantive merit – finding his denial of receipt was a "mere assertion" – and delay – finding that time effectively ran from the March decision. The appellant then appealed to the CoA.
Decision:
The CoA allowed the appeal, granting the appellant permission for judicial review due to two main errors made by the UT. The Court ruled that the UT Judge fundamentally misunderstood when the time for filing a judicial review claim begins to run for immigration decisions. Under Section 4(1) of the Immigration Act 1971, the power to vary or cancel leave to remain "shall be exercised by notice in writing given to the person affected". Citing Mehmood v SSHD, the Court confirmed that, legally, there is no decision at all to curtail leave until the individual is given notice. The three-month time limit for judicial review runs from the date the individual is given notice, and not the date the SSHD internally made the decision.
The Court found the UT Judge erred in concluding the appellant had no arguable case that the notice was improperly served. The letter sent by his solicitor was strong, objective evidence consistent with the appellant's claim that he had not received the email. It would have been "absurd" for the appellant, who clearly wished to remain and switch sponsors, to receive the notice and then allow himself to become an overstayer by failing to act.
Implications:
The case significantly clarifies the standard required for an applicant to challenge a "deemed service" decision, making it easier to gain permission for judicial review. The Court confirmed that a bare denial of receipt is insufficient, but found that even minimal objective evidence supporting the denial—such as a solicitor's letter written before the decision was known—is enough to cross the "arguable case" threshold.
The ruling definitively settles a procedural point regarding when the three-month time limit for judicial review begins in such immigration cases. The clock for challenging curtailment of leave begins ticking on the date the notice is legally "given" (i.e., received) by the applicant, and not the date the SSHD makes the decision. This protects the applicant’s right to challenge the decision, preventing a situation where any delay in notification could automatically render the claim overdue.
The ruling confirms the robustness of email as a valid form of service under the 2000 Order, but emphasises that the presumption of receipt is not absolute and can be rebutted with cogent evidence.
