Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber)

Syed (curtailment of leave – notice) [2013] UKUT 00144 IAC)

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
on 18th January 2013

…………………………………

Before

UPPER TRIBUNAL JUDGE SPENCER

Between

SHOUKATH ALI SYED
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the appellant: Ms N Manyarara, counsel, instructed by Jein Solicitors
For the respondent: Mr P Deller, Senior Home Office Presenting Officer

(1) The Immigration (Notices) Regulations 2003 do not apply to a decision under the Immigration Act 1971, which is not an immigration decision within the meaning of section 82 of the Nationality, Immigration and Asylum Act 2002.

(2) There is no statutory instrument under the 1971 Act dealing with the means of giving notice for the purposes of section 4(1) of a decision under that Act, which is not an immigration decision.
(3) Accordingly, the Secretary of State has to be able to prove that notice of such a decision was communicated to the person concerned, in order for it to be effective. Communication will be effective if made to a person authorised to receive it on that person’s behalf: see Hosier v Goodall [1962] 1 All E.R. 30; but the Secretary of State cannot rely upon deemed postal service.

DETERMINATION AND REASONS

1. The appellant is a citizen of India, born on 5th June 1976. His appeal against the decision of the respondent, made on 24th April 2012, to remove him from the United Kingdom to India, following the refusal of his application for leave to remain in the United Kingdom was dismissed after a hearing before First-tier Tribunal Judge Onoufriou, in a determination promulgated on 2nd October 2012.
2. On 16th January 2012 the appellant had applied for indefinite leave to remain in the United Kingdom on the grounds of long residence under section 276B of HC 395, as amended, based on at least ten years continuous lawful residence in the United Kingdom.
3. The appellant’s immigration history as shown by the reasons for refusal letter, dated 24th April 2012, was that he entered the United Kingdom on 9th February 2002 with entry clearance as a student valid from 4th February 2002 to 31st August 2003. He was granted further leave until 31st December 2004 as a student. He was granted further leave to remain as a student until 31st January 2006 and again until 31st October 2006. He was then granted further leave to remain until 14th November 2011 as a work permit holder followed by a further grant of leave in the same capacity until 12th February 2013 following an application made on 31st January 2008. The respondent asserted that on 17th April 2009 information was received that he was no longer employed by the employer in respect of which his work permit had been granted and his leave was curtailed on 20th October 2009 so as to expire on 19th December 2009. It was asserted that notice of the curtailment of his leave was sent to his last known address in Southampton, which was returned twice and the notice was then served on file. It was said that the appellant’s leave to remain expired on 19th December 2009 and therefore he did not have leave to remain at the time of his application.
4. The main point on which permission to appeal was granted was whether the appellant’s leave had been validly curtailed in the absence of evidence that he had known of the curtailment. The appellant claimed that the respondent had accepted that the notice sent by recorded delivery had not actually been served and service on file was not sufficient to terminate his leave.
5. At the hearing before the First-tier Tribunal judge it does not appear that it was in issue that on 22nd October 2009 and again on 17th November 2009 the respondent attempted to serve notice on the appellant of curtailment of his leave by recorded delivery but the notice was returned on both occasions. In paragraph 35 of his determination the First-tier Tribunal judge referred to regulation 6 of the Immigration (Notices) Regulations 2003 and said that the appellant was served by recorded delivery at the address which he had given to the Home Office and at which he confirmed in his evidence he was residing at the date the notice of curtailment was served. The First-tier Tribunal judge was therefore satisfied that the notice for curtailment was validly served and that it was communicated to the appellant. He said the notice was served twice by recorded delivery and he thought it was highly unlikely that on two occasions the appellant failed to receive the notice from the Post Office advising him that a recorded delivery letter was available for his collection. Accordingly his leave to remain in the United Kingdom was validly curtailed in October 2009.
6. The appellant’s case was that he knew nothing of the attempts to serve him with notice of curtailment of his leave and did not receive a notice from the Post Office stating that a recorded delivery letter was available for collection. It was said that it was hardly likely that he would have applied for indefinite leave to remain if he had known that his leave had been curtailed. It was further claimed that by serving the notice on file the respondent accepted that service on the appellant by recorded delivery had not in fact been effected since the letters to the appellant had been returned by the Post Office.
7. At the hearing before me Mr Deller conceded that the appellant’s leave had not been curtailed so that he had no leave remaining, because his leave was permitted to run beyond the date upon which it was said that the notice of curtailment was served, to 19th December 2009, so that he did not have a right of appeal against this curtailment of his leave. Both he and Ms Manyarara agreed that if notice of curtailment of his leave had not been validly served upon him, then his leave would have continued until 12th February 2013, so that the decision to remove him from the United Kingdom would have been unlawful because at the time of the decision he would have had leave to remain in the United Kingdom. If the appellant’s leave had continued then the refusal to grant him indefinite leave would not have left him without leave so that he would not have had a right of appeal against such refusal, see section 82(2)(d) of the Nationality, Immigration and Asylum Act 2002 . In order to avoid any prejudice to the appellant as a result of the expiration of the appellant’s leave, if he still had leave, pending my determination Mr Deller withdrew the decision refusing the appellant’s application for indefinite leave to remain, leaving the decision to remove the appellant as the immigration decision in respect of which his right of appeal continued. Mr Deller gave an undertaking that the application would not be reconsidered by the Secretary of State pending the final determination of the appeal.
8. Section 3(3)(a) of the Immigration Act 1971 provides that in the case of a limited leave to enter or remain in the United Kingdom a person’s leave may be varied, whether by restricting, enlarging or removing the limit on its duration, or by adding, varying or revoking conditions. Section 4(1) of the 1971 Act 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 person 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.”
9. Mr Deller did not suggest that the words “by notice in writing given to the person affected” did not carry a requirement that the notice of variation of leave should be communicated to the person in question. In his determination the First-tier Tribunal judge took the view that the provisions of the Immigration (Notices) Regulations 2003 applied to the notice of curtailment sent to the appellant. Mr Deller expressed considerable reservations as to whether this was correct but was not able to make a concession on behalf of the respondent that the First-tier Tribunal judge had made an error of law and left the issue for me to decide. The reasons for Mr Deller’s reservations are apparent when one considers the terms of the 2003 Regulations.
10. The Immigration (Notices) Regulations 2003 were made pursuant to section 105 of the Nationality, Immigration and Asylum Act 2002, which provides as follows:
“Notice of immigration decision
(1) The Secretary of State may make regulations requiring a person to be given written notice where an immigration decision is taken in respect of him.
(2) The regulations may, in particular, provide that a notice under subsection (1) of a decision against which the person is entitled to appeal under section 82(1) must state—
(a) that there is a right of appeal under that section, and
(b) how and when that right may be exercised.
(3)The regulations may make provision (which may include presumptions) about service.”
It can be seen that the power to make regulations under this section relates to “immigration decisions” only.
11. Regulation 4 provides as follows:
“Notice of decisions
4.—(1) Subject to regulation 6, the decision-maker must give written notice to a person of any immigration decision or EEA decision taken in respect of him which is appealable.
(2) The decision-maker must give written notice to a person of the relevant grant of leave to enter or remain if, as a result of that grant, a right of appeal arises under section 83(2) of the 2002 Act.
(3) If the notice is given to the representative of the person, it is to be taken to have been given to the person.”
12. Regulation 5 of the 2003 Regulation deals with the contents of a notice given under regulation 4(1). Regulation 6 deals with certain notices under the 1971 Act deemed to comply with the Regulations and provides as follows:
“(1) This regulation applies where the power to -
(a) refuse leave to enter; or
(b) vary leave to enter or remain in the United Kingdom;
is exercised by notice in writing under section 4 of (administration of control), or paragraph 6(2) (notice of decisions of leave to enter or remain) of Schedule 2 to, the 1971 Act.
(2) If -
(a) the statement required by regulation 5(3) is included in or accompanies that notice; and
(b) the notice is given in accordance with the provision of regulation 7;
the notice is to be taken to have been given under regulation 4(1) for the purposes of these Regulations.” (My underlining)
Regulation 7 then goes on to deal with service of notice in providing that a notice required to be given under regulation 4 (my underlining) may be given in various ways including recorded delivery and in regulation 7(2) provision is made for notice to be deemed to have been given by placing the signed notice on the relevant file where a person’s whereabouts were not known, the address provided to the decision-maker was defective, false or no longer in use by the person and no representative appeared to be acting for the person. In this case it has not been suggested that the notice was served on any representative of the appellant.
13. Regulation 4(1), as we have seen, provides that subject to regulation 6, the decision-maker must give written notice to a person of any immigration decision or EEA decision taken in respect of him which is appealable. It may be that the words “which is appealable” are unnecessary because in regulation 2 “immigration decision” is said to have the same meaning as in section 82(2) and (3A) of the 2002 Act. The effect of the decision in the appellant’s case, as has already been observed, was that the appellant was not left without leave to remain in the United Kingdom and therefore the decision in his case was not an appealable decision. Indeed a copy of the notice of variation of leave, dated 20th October 2009, indicated that the appellant was not entitled to appeal against the decision since section 82 of the Nationality, Immigration and Asylum Act 2002 did not provide a right of appeal when an applicant still had leave to enter or remain in the United Kingdom and so was entitled to stay here. The notice went on to state that he had been granted permission to stay until 19th December 2009 and was not required to leave the United Kingdom as a result of the decision.
14. The difficulty presented to the respondent is that the provisions of regulation 7 dealing with service apply to a notice required to be given under regulation 4 which, as it has been seen, relates to a notice in respect of an immigration decision carrying a right of appeal, which was not the case here. The fact that certain notices under the 1971 Act are deemed to comply with the 2003 Regulations does not in my view mean that a notice to which the Regulations did not apply could be said to have been validly served by reference to the service provisions under the regulations.
15. The correctness of this view is borne out by a passage in paragraph 4.29 of Macdonald’s Immigration Law and Practice, Eighth Edition, in which it is said that the 2003 Regulations do not provide for notification of a decision which does not give a right of appeal. The passage points out that in order to avoid difficulties regarding the interpretation of section 3C of the Immigration Act 1971 in relation to the continuation of leave pending a variation decision, regulation 3C(6) was substituted by section 11(4) of the Immigration, Asylum and Nationality Act 2006 to provide for the power to make regulations determining when an application was decided for the purposes of the section. Regulation 2 of the Immigration (Continuation of Leave) (Notice) Regulations 2006 provides as follows:
“For the purpose of section 3C of the Immigration Act 1971 an application for variation of leave is decided—
(a) when notice of the decision has been given in accordance with regulations made under section 105 of the Nationality, Immigration and Asylum Act 2002(1); or where no such notice is required,
(b) when notice of the decision has been given in accordance with section 4(1) of the Immigration Act 1971.”
16. In my view the First-tier Tribunal judge made an error of law in construing regulation 7 as applying to decisions in respect of which there was no right of appeal. I also take the view that the First-tier Tribunal judge was wrong to find that the decision had been communicated to the appellant, since the respondent’s case was that the notices had been returned un-served and service on the file necessarily involved the proposition that there had been no service. The finding of the First-tier Tribunal judge that it was unlikely that the appellant failed to receive a notice from the Post Office advising him that a recorded delivery letter was available for collection was an irrelevant finding, since the return of the letters by the Post Office proved that they had not been served on the appellant.
17. The respondent was not able to rely upon service on the file by reference to regulation 7(2) because that only applied to notices required to be given under regulation 4.
18. It may very well be that the First-tier Tribunal judge was misled by paragraph 4.32 of Macdonald, which he quoted in his determination, in which it was said that section 4(1) of the Immigration Act 1971 required a written notice to be given to the unsuccessful applicant. He or she must also be given written notice under the Immigration (Notices) Regulations 2003, if he or she had a right of appeal. Thus there was a double requirement to give notice: (i) in all cases under section 4(1) and (ii) in cases where there was a right of appeal, under the Notices Regulations. The passage went on to say that the two regulations were married by regulation 6 of the Notices Regulations, which provided that the notice could be the same one for both purposes, provided that it contained all the necessary information. For the reasons which I have already given, in my view a notice which is given in accordance with the 2003 Regulations but not actually served, does not satisfy the requirements of section 4(1) for notice in writing to be given of curtailment of leave where there is no right of appeal. The words “for the purposes of these Regulations” in regulation 6(2) does not have the effect of validating service for the purposes of section 4(1) of the 1971 Act.
19. The misunderstanding of the effect of the 2003 Regulations is shown by the fact that in Chapter 51.1 of the respondent’s Enforcement Instructions and Guidance it is suggested that regulation 5 of the 2003 Regulations applies to an IS151A notice of liability to be removed, which it is said is not an appealable immigration decision. The following appears:

“Notice of liability (section 10)

The IS151A Part 1 (Notice that a person is to be treated as an illegal entrant/a person liable to administrative removal under section 10 of the Immigration & Asylum Act 1999) can be served on those liable to administrative removal (as outlined in the first five bullet points above).
The Notice of Liability is not an appealable immigration decision. It informs the individual they are an illegal entrant/immigration offender and they are liable to detention and removal. It also allows reporting restrictions to be placed on the individual. See Section 51.5 below.

Statement of reasons

To comply with the requirement set out in regulation 5(1)(a) of the Immigration (Notices) Regulations 2003, the IS.151A Part 1 must contain a statement of reason(s). A non-exhaustive list of paragraphs that could be copied and pasted into the IS151A Part 1 are listed below. The wording should then be amended to fit the individual circumstances of the case:
…
…

Service

The Notice of Liability can be served in person or by post. However, in deception an interview under caution by an immigration officer may be required first. See Chapter 37 for further details on enforcement interviews

...”

20. The decision of the Court of Appeal in R v Appeal Committee of County of London Quarter Sessions, Ex parte Rossi [1956] 1 All E.R. is helpful not only in confirming that notice in a recorded delivery letter which has been returned has not been given but also in indicating what would be required for a notice in writing to be given to the person affected. In that case the issue was whether the applicant for an order of certiorari had been given notice of an adjourned hearing in an appeal to Quarter Sessions in affiliation proceedings. Section 3(1) of the Summary Jurisdiction (Appeals) Act 1933 provided that:
“… the clerk of the peace…shall in due course give notice to the appellant, to the other party to the appeal, and to the clerk to the court of summary jurisdiction as to the date, time and place fixed for the hearing of the appeal. A notice required by this sub-section to be given to any person may be sent by post in a registered letter addressed to him at his last or usual place of abode.”
21. The clerk of the peace sent to the applicant a letter by registered post telling him of the time, date and place of the adjourned hearing, but the letter was returned unopened and undelivered. The issue before the Court of Appeal was whether notice in due course had been given to the applicant. It was held that it had not been. Denning LJ, said:
“It is argued that it is sufficient to comply with s 3(1) if he send a registered letter to the respondent, even though it is not received by him, and known not to be received. I do not think that is correct. When construing this section, it is to be remembered that it is a fundamental principle of our law that no one is to be found guilty or made liable by an order of any tribunal unless he has been given fair notice of the proceedings so as to enable him to appear and defend them.
…
This could be done by proof that a notice had been sent to him in good time by post in a registered letter which had not been returned, for it could then be assumed that it had been delivered in the ordinary course of post: see the Interpretation Act, 1889, s 26.”
22. Morris LJ said, in relation to the phrase “…shall in due course give notice to … the other party to the appeal…as to the date, time and place fixed for the hearing of the appeal” that there was an obligation to “give” such notice. It seemed to him that it was of the very essence of such notice that it should be communicated to or should reach the party interested.
23. The notion that notice of variation should be communicated to the person concerned is supported by paragraph 31 of HC 395, as amended, which provides:
“Under Section 3(3) of the 1971 Act a limited leave to enter or remain in the United Kingdom may be varied by extending or restricting its duration, by adding, varying or revoking conditions or by removing the time limit (where upon any condition attached to the leave ceases to apply). When leave to enter or remain is varied an entry is to be made in the applicant's passport or travel document (and his registration certificate where appropriate) or the decision may be made known in writing in some other appropriate way.”
24. Furthermore in Robina Rafiq v Secretary of State for the Home Department [1998] Imm AR 193 the Court of Appeal held that the endorsement of a passport with a stamp signifying the grant of indefinite leave in circumstances where the passport was retained by the Secretary of State and not given or sent to the appellant did not amount to the grant of indefinite leave to remain since the decision had not been communicated to the appellant.
25. There still remains the question, however, of what amounts to communication of a decision to vary leave where there is no appeal. Provision has been made for alternative means of communicating decisions granting or refusing leave to enter the United Kingdom. Article 8 of the Immigration (Leave to Enter and Remain) Order 2000 provides that a notice giving or refusing leave to enter may, instead of being given in writing as required by section 4(1) of the Act, be given by facsimile or electronic mail, and in the case of a notice giving or refusing leave to enter the United Kingdom as a visitor, it may be given orally, including by means of a telecommunications system. Furthermore by virtue of article 9 such a notice may be given to a responsible person acting on behalf of the person concerned. By virtue of article 10(1) where notice refusing leave to enter as a visitor has been given orally under article 8(3) or given under article 9, an immigration officer shall give the person concerned as soon as practicable a notice in writing that he has been refused leave and stating the reasons for the refusal. By virtue of article 10(3) any notice required by paragraph (1) may be delivered or sent by post to his last known or usual place of abode or the address provided by him for receipt of the notice. These provisions, however, do not relate to a notice of a non-appealable decision to vary leave.
26. Section 26 of the Interpretation Act 1889 has been replaced by section 7 of the Interpretation Act 1978, which provides as follows:

“References to service by post.
E+W+S+N.I.
Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression “give” or “send” or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.”
An example of where an Act authorises a document to be served by post is section 3(1) of the Summary Jurisdiction (Appeals) Act 1933 referred to above.
27. In his judgment in Retail Dairy Co Ltd v Clarke [1912] 2 KB 388, in which case the court was concerned with the meaning of the term “send” in section 20(1) of the Sale of Food and Drugs Act, 1899, which provided for the sending of a warranty or invoice by the vendor to the purchaser, Ridley J said:
"Section 26 of the Interpretation Act, 1889, throws no light upon the matter. It has no application where the statute to be interpreted says nothing about service by post."
In the instant case section 4(1) of the Immigration Act 1971 did not authorise or require notice of the decision to be served by post; it said nothing about service by post, so that in my view section 7 of the Interpretation Act 1978 did not apply. The consequence is that if the respondent had chosen to send the notice by ordinary post, service would not have been deemed to have been effected.
28. In the absence of an order made by statutory instrument under section 4(1) of the Immigration Act 1971 dealing with the giving of notice of variation of leave where there is no right of appeal, the Secretary of State has to be able to prove that notice of a decision varying leave to remain under section 3(3)(a) of the Immigration Act 1971 where there is no right of appeal was communicated to the person concerned for it to be effective. Where there is no “immigration decision” the Immigration (Notices) Regulations 2003 do not apply. Communication would be effective if made to a person authorised to receive it on that person’s behalf, see Hosier v Goodall [1962] 1 All E.R. 30, but the Secretary of State cannot rely upon deemed postal service.
29. In these circumstances the First-tier Tribunal judge made a material error of law in his determination of the appeal in finding that the appellant’s leave to remain had been validly terminated by the attempted service by recorded delivery which the respondent herself acknowledged had not been achieved. As Mr Deller conceded if the appellant’s leave had not been terminated the decision to remove him from the United Kingdom was unlawful.
30. Therefore I set aside the decision of the First-tier Tribunal and re-make the decision by allowing the appeal to the extent that the decision to remove the appellant from the United Kingdom was not in accordance with the law. Mr Deller indicated that the appellant’s outstanding application for indefinite leave to remain will be determined in the light of this determination.

Signed Dated

P A Spencer
Judge of the Upper Tribunal