Tribunal decisions

The decision

IAC-AH-SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/33370/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 22 March 2017
On 30 March 2017

Before

THE HONOURABLE MR JUSTICE MITTING
UPPER TRIBUNAL JUDGE MCGEACHY

Between

ZHEN ZENG
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M S Gill, Counsel instructed by Stephen & Richard Solicitors LLP (Victoria Square)
For the Respondent: Mr E Tufan, Home Office Presenting Officer

DECISION AND REASONS
1. Zhen Zeng, the appellant is a 35 year old Chinese national. He entered the United Kingdom on 14 November 2002 with entry clearance as a student valid until 31 December 2007. Leave to remain as a student was subsequently granted and periodically extended until 18 February 2014. On 28 June 2012 the Secretary of State decided to curtail his leave to 9 November 2012 because the college at which he had enrolled, the UK College of Excellence, had had its sponsor’s licence revoked on 26 May 2012. On 7 March 2013 he claimed ignorance of the curtailment of his leave to remain and after the time on which it had originally been granted had elapsed he applied for indefinite leave to remain on the basis of ten years’ lawful residence. His application was rejected on 30 March 2013. On 2 April 2013 he re-applied for indefinite leave to remain on the same ground. His application was refused on 30 September 2013 but with a right of appeal from within the United Kingdom which the appellant exercised on 22 October 2013. On 20 March 2014 his appeal was allowed by the First-tier Tribunal. The case was remitted to the Secretary of State for reconsideration. She did reconsider, and by a letter dated 12 October 2015 refused to grant indefinite leave to remain with a right of appeal from within the UK. The appellant appealed, his appeal was dismissed by a decision and reasons promulgated on 8 July 2016.
2. The underlying reason for the decision was that the appellant had not proved that he had ten years’ lawful residence prior to 2 April 2013. First-tier Tribunal Judge Jessica Pacey did not address this issue directly, probably because the parties presented their cases on the basis that if the notice of curtailment given on 28 June 2012 took effect on 9 November 2012, then the underlying facts determined the appeal against him because he would have failed by a few days to establish ten years’ lawful residence. Judge Pacey decided that he had not discharged the burden of proof on him. Mr Tufan for the Secretary of State correctly concedes today that the burden of proving service of the notice of curtailment lay on the Secretary of State and not on the appellant, and accordingly that aspect of the findings cannot be determinative of the issue.
3. This is an historical case because as from 12 July 2013 Article 8 ZA of the Immigration (Leave to Enter and Remain) Order 2000 applies and would, on the facts of this case, have produced the same outcome as was held by Judge Pacey but for different reasons. When the decision to curtail leave to remain took effect the appellant still had leave to remain until 9 November 2012. As the notice itself expressly stated the decision was not an appealable immigration decision under Section 82(2)(e) of the Nationality, Immigration and Asylum Act 2002. As the Upper Tribunal held in Syed [2013] UKUT 144 and as Mr Justice Garnham sitting then as a Deputy Judge decided in Javed v Secretary of State for the Home Department [2014] EWHC 4426 (Admin) service of the notice was not governed by the Immigration Notices Regulations 2003 or for that matter by Section 7 of the Interpretation Act 1978. The notice was given under Section 4(1) of the Immigration Act 1971. To have legal effect it had to be communicated in some way to the appellant. A synonym for communication would be brought to his attention or received, see the observation of Lord Steyn in Anufrijeva v Secretary of State for the Home Department [2003] UKHL 36 at paragraphs 28 and 30. Judge Pacey decided that the Secretary of State had delivered notice to the address held by her on file, 167 Orion Buildings, Holloway Head, Birmingham. She went on however to hold that the appellant was under a duty to keep the Secretary of State informed of his whereabouts, see paragraph 16 of her decision where she stated that proposition succinctly.
“15. Whilst the respondent must establish that the notice had been communicated clearly she is reliant on the recipient notifying her of a change of address ...
16. His own conduct has not been such as to discharge his duty to keep the respondent informed of his whereabouts”.
4. The source of this duty was not identified by her, unless the intervening words in paragraph 15 “it would be a nonsense for an applicant to evade the consequences of failing to act on a notice simply by deliberately failing to inform the respondent of a change of address” are to be taken as identifying the source. There is no statutory source for it either in Section 4(1) of the 1971 Act or until 12 July 2013 in a statutory instrument. It could conceivably have been found in a condition of leave to remain given when leave was originally granted or when it was renewed, but there was no evidence of that before the First-tier Tribunal and Mr Tufan does not assert that it was given by that means. She went on to make adverse credibility findings against the appellant, she found it not credible that he did not enquire of anybody how his mail could be diverted after he had moved, see paragraph 19 of her decision. Nevertheless, she did not find that he did actually receive the notice or that its contents were actually drawn to his attention. Indeed it is implicit, and we think Mr Tufan concedes as much, that her findings were that he did not in fact have its contents drawn to his attention.
5. We are unable to discern, either in the facts found by Judge Pacey or in the general law, any obligation on the appellant to notify the Secretary of State of any change in his address. It is conceivable that a condition may have been imposed as part of the grant of leave to remain or its extension, however there was no evidence of that and in the absence of evidence of it we can see no other means by which such an obligation could have been imposed on the appellant.
6. For future purposes none of this will matter because service by post of a notice curtailing leave under Section 4(1) of the 1971 Act will be effective even if it is not brought to the attention of the intended recipient under Article 8 ZA of the 2000 Order. Mr Tufan recognises correctly that there was a statutory lacuna and the plain fact is that the appellant is entitled to benefit from it.
7. Accordingly, and for those reasons, we allow the appeal. We propose to determine the matter ourselves, it not being suggested by Mr Tufan that we should remit it for further findings of fact to be made. In the circumstances on the facts as found the appellant did have ten years’ lawful residence in the United Kingdom because the notice curtailing his leave to remain was not effectively given to him. Accordingly the Secretary of State must re-take the decision on the basis that he did have ten years’ lawful residence in the United Kingdom.
No anonymity direction is made.

Signed Date 28 March 2017

Mr Justice Mitting