JR-2024-LON-003322
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The decision
Case No: JR-2024-LON-003322
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR
18 November 2025
Before:
UPPER TRIBUNAL JUDGE RASTOGI
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Between:
THE KING
on the application of Samira Hussain
Applicant
- and -
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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Mr S. Karim
(instructed by Riverine Solicitors), for the applicant
Mr M. Biggs
(instructed by the Government Legal Department) for the respondent
Hearing date: 21 August 2025
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APPROVED JUDGMENT
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Judge Rastogi:
1. This is an application for judicial review of the decision of the Secretary of State for the Home Department dated 30 August 2024 responding to a complaint the applicant made on 30 July 2024. In summary, the complaint was about the classification of the applicant’s status in the United Kingdom between grants of leave which the applicant believed was covered by leave conferred pursuant to section 3C of the Immigration Act 1971 (“the 1971 Act”).
2. In the decision under challenge, the respondent said:
“Our records show that your client submitted a Fee Waiver application on 20 March 2023, under reference 1212-0001-2952-6695/00, before her Leave to Remain expired on 22 May 2023. This application was rejected on 1 June 2023, which allowed your client 10 working days to submit a Further Leave to Remain application. However, your client did not do this and instead submitted another Fee Waiver application on 26 August 2023 under reference, 1212-0001-3507-2704/00. This application was withdrawn on 12 March as per your client's request.
Your client's 3c leave ceased, as she did not submit a Further Leave to Remain application within 10 working days of her Fee Waiver decision on 1 June 2023.”
3. The principal issue underlying the grounds of challenge is the interplay between the statutory regime set out in section 3C of the 1971 Act and the operation of paragraph 34G(4) of the Immigration Rules “the Rules”, including what is meant by ‘receipt’ therein. The full scope of the grounds is set out later in this judgment.
4. For the avoidance of doubt, it has not at any stage been contended by the respondent that the decision under challenge, or the conclusion which informed it, was not amenable to judicial review.
Legal Framework
5. Section 3 of the 1971 Act provides, in so far as is relevant:
“(1) Except as otherwise provided by or under this Act, where a person is not [a British citizen]—
(a) he shall not enter the United Kingdom unless given leave to do so in
accordance with [the provisions of, or made under,] this Act;
(b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period;
………
(2) The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances;………”.
6. The relevant parts of section 3C of the 1971 Act say:
“3C Continuation of leave pending variation decision
(1) This section applies if—
(a) a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave,
(b) the application for variation is made before the leave expires, and
(c) the leave expires without the application for variation having been decided.
(2) The leave is extended by virtue of this section during any period when—
(a)the application for variation is neither decided nor withdrawn,
…”
7. Section 4(1) of the 1971 Act says:
“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) [or to cancel any leave under section 3C(3A)], 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.” (my emphasis)
8. Paragraph 34G of the Rules provides:
“Date of application (or variation of application) for permission to stay
34G. For the purposes of these rules, and subject to paragraph 34GB, the date on which an application is made is:
(1) where the paper application form is sent by post by Royal Mail, whether or not accompanied by a fee waiver request form, the date of posting as shown on the tracking information provided by Royal Mail or, if not tracked, by the postmark date on the envelope; or
(2) where the paper application form is sent by courier, or other postal services provider, the date on which it is delivered to the Home Office; or
(3) where the application is made via the online application process, and there is no request for a fee waiver, the date on which the online application is submitted; or
(4) where the online application includes a request for a fee waiver, the date on which the online request for a fee waiver is submitted, as long as the completed application for permission to stay is submitted within 10 working days of the receipt of the decision on the fee waiver application.”
Factual Background
9. I set this out in some detail given its centrality to the issues I am to decide in these proceedings.
10. The applicant is a Bangladeshi national who entered the UK in 2016 following the grant of entry clearance as a spouse of a settled person. That entry clearance was granted on 7 December 2016. On 4 August 2017 the applicant successfully applied for leave to remain in the same category and was subsequently issued with leave until 9 August 2020. On 3 July 2020 the applicant requested a fee waiver which was accepted on 4 August 2020 and communicated by way of email to her at the email address which she supplied and which is the same as the one used in the present application1. On 5 August 2020 the applicant successfully applied for leave to remain under the family and private life route (10 years) and that was granted, valid until 22 May 2023.
11. Of particular significance to this application is what happens next. On 20 March 2023 (before the expiry of her leave) the applicant applied for a fee waiver. She provided the same email address as set out above and explained that the application category in which she would be applying was (summarised) under the family and private life (10 years) route. On 2 May 2023 the respondent sent an email to the applicant at the same email address requesting further information and giving a deadline of 16 May 2023. On 17 May 2023, the respondent telephoned the applicant but there was no response and also sent a further email to the same email address. A further telephone call was made on 1 June 2023 but, again, no response. On 1 June 2023 the respondent decided to reject the fee waiver request and sent the applicant an email to that effect on the same day, to the same email address. On all occasions when emails were sent, the respondent received successful delivery receipts.
12. On 5 July 2023 the applicant made a complaint to the respondent about her outstanding fee waiver request and on 5 August 2023 she was told, by email, that it had already been decided and sent on 1 June 2023. She was advised to check all her relevant inboxes including her junk mail. The applicant replied on the same day to say that she had done that and had not received the decision. She requested a copy. She further said that she had been checking her emails daily since making her request and had not received the decision of 1 June 2023.
13. On 23 August 2023 the respondent sent the applicant a copy of the 1 June 2023 email to the same email address with a copy of the 1 June 2023 email delivery receipt, which the applicant received. That decision included the following information:
“Date of Application
We have rejected your request for a fee waiver. In order to continue your legal immigration status, you must submit your immigration application within 10 working days from the receipt of this letter.
If you submit an online application before the 10 working days from the receipt of this letter, the date of your application will be the date on which you made your request for a fee waiver. If submitted after the 10 working days, the application date will be the date on which you make the online payment for the application.
Your application will only be valid if you pay the specified fee as set out in the application form.
Making a Fresh Request for a Fee Waiver
If you want to make a fresh request for the application fee(s) to be waived, you must complete the correct online form and submit the appropriate supporting evidence.”
14. Later the same day, the applicant replied. Therein she explained that she had not received the previous requests for further information and, had she done so, she would have responded accordingly. She said it was unfair that a decision had been made on her application without her having a chance to provide further information. She said
“I would like to request the Home Office to allow me to provide further evidences they have requested to consider my visa waiver application that I made on 20/3/23. Please advise what steps I should take”.
15. On 25 August 2023 the respondent told the applicant,
“if you would like to make a fresh request for the application fee to be waived, you must complete the correct online form and submit the appropriate supporting evidence”.
16. It is not clear when, but it appears the applicant sent a further email thereafter saying,
“my question is if I make a fresh new application, will it be linked with my old status/stay as I have been staying here for 6 and half year but my old BRP expired on 22/5/23. Or fresh application will lead to new application and my old stay would be voided?”.
17. On 26 August 2023 the applicant made a fee waiver request, acknowledged at 22.08 that same day.
18. On 29 August 2023 the respondent sent an email to the applicant saying as follows:
“as you have applied for a fee waiver before your current leave expired, you are covered by 3c leave and the conditions of your current visa will continue, even after putting in a new waiver as long as the first fee waiver is still open until a decision has been made on your new application.”
19. On 2 October 2023 the applicant raised a complaint as to the lack of response to her “second fresh fee waiver application” which she said she submitted “as per your earlier advise”.
20. On 20 October 2023 the respondent replied saying, materially:
“thank you for your email correspondence of 5 August and 2 October where you have raised a complaint, regarding you having not received a decision for your fee waiver application received on 20 March and the delay in concluding your new application submitted on 26 August.
…….
I can confirm that as you have not yet received your decision letter from your application which was submitted on 20 march a further copy of your decision letter was issued to you via email on 23 August. If you have not yet received this email please check any spam, junk or deleted folders within your email account”.
21. As for her new fee waiver application, the respondent declined to provide a timeline for a decision on the second application. Her complaint was not upheld.
22. The applicant raised a further complaint on 15 November 2023 as she was being required to pay her NHS fees as the NHS had been told she had made an out of time application and was no longer entitled to free treatment. She outlined the history of her contact with the respondent and said,
“the complaint department has retrieved the decision letter and forwarded to me which I did not have enough time to react to that decision letter. Hence the complaint department has advised me to make a fresh application for the visa fee waiver and assured that my condition of current visa will continue as its covered by 3c leave”.
23. She pointed out the potential detriment she may suffer as a result of not being able to prove her status.
24. An email to the applicant dated 22 November 2023 from “Overseas Patients” at Barts Hospital said that following checks with the Home Office:
“we regret to inform you that as your application was made out of time you will be charged … from the date your application was rejected on 01/06/2023 …. We are able to see that you raised a further application for Fee Waiver which is an ongoing claim but as the Home Office has said this is out of time you will be liable for charges to NHS treatment …”.
25. By 29 November 2023, the applicant had instructed City Heights Solicitors who wrote to the respondent, setting out the procedural chronology, pointing out the detriment to the applicant (now pregnant) of the situation and warning that unless the respondent provided a conclusive decision “sorting out her 3C leave matter”, legal action may follow. Included in that letter was reference to the Home Office Policy of 8 April 2022 which the solicitors noted gave the “applicant 10 working days to make another application and, where relevant, to benefit from 3C leave” and noting that she had made her 2nd fee waiver application within 10 days of her receipt of the refusal dated 1 June 2023.
26. On 1 March 2024, the respondent requested further information regarding the fee waiver request but did not mention 3C leave. On 5 March 2024 the applicant’s solicitors wrote to the respondent informing her the applicant wished to withdraw her fee waiver request and that she would make a paid application for leave. She also asked for a response about her 3C leave.
27. The respondent replied on 12 March 2024 confirming that the fee waiver request had been withdrawn, informing the applicant to make an application for leave and saying:
“As you made an in-time application you will retain your leave to remain status until 10 days after your fee waiver has been concluded. After which time your current leave expires. After this time you will not have legal leave to remain in the United Kingdom”.
28. On 18 March 2024 the applicant applied for leave to remain under the 10 year family life route as a partner and that was granted by way of a decision dated 19 June 2024 and her permission to stay thereunder ends on 16 January 2027.
29. On 30 July 2024, through her solicitors, the applicant raised a complaint with the respondent on the following grounds:
“we are writing to request an update to our client’s immigration records with regard to her valid Leave to Remain status under section 3C of the Immigration Act 1971”.
30. The complaint explained that the applicant was still being told by the NHS Barts Trust that she was still liable to pay for the treatment she received whilst she was awaiting a decision on her fee waiver request. Having once again set out the procedural history, including that on 12 March 2024 the applicant had been told her fee waiver application of 26 August 2023 was in-time the solicitors said:
“Since the fee waiver application made on 26th August 2023 is accepted to be an in time application by the Home Office on its decision dated 12th March 2024, out client should be accepted to have valid leave to remain during the period between 22nd May 2023 and 19th June 2024.
In light of the above, we would like confirmation that her status under Section 3C leave is correctly reflected in your records, ensuring there is no gap in her leave to remain status while the application was being processed. Please update her records accordingly and confirm the status in writing.”
31. That complaint gave rise to the decision under challenge. On 30 August 2024 the respondent replied as follows:
“Our records show that your client submitted a Fee Waiver application on 20 March 2023, under reference 1212-0001-2952-6695/00, before her Leave to Remain expired on 22 May 2023. This application was rejected on 1 June 2023, which allowed your client 10 working days to submit a Further Leave to Remain application. However, your client did not do this and instead submitted another Fee Waiver application on 26 August 2023 under reference, 1212-0001-3507-2704/00. This application was withdrawn on 12 March as per your client's request.
Your client's 3c leave ceased, as she did not submit a Further Leave to Remain application within 10 working days of her Fee Waiver decision on 1 June 2023.”
32. Through her solicitors, the applicant asked for a review of this decision on 10 September 2024 pointing out that her 3C leave could not have ended on 1 June 2023 as that decision was not in fact served on her until 23 August 2023 and her second fee waiver application should have been treated as an extension of the first. It does not seem to be in dispute that before any response was received, the applicant instituted the judicial review protocol.
33. A pre-action letter was sent on 26 September 2024 to which the respondent replied on 8 November 2024 maintaining the decision for the same reasons.
The Application for Judicial Review and the Grounds of challenge
34. On 3 December 2024, the applicant filed her judicial review application.
35. The summary grounds as set out in the Statement of Facts and Grounds appended to the application are as follows:
Ground 1: Whether there was valid and lawful service of the rejection of the first fee waiver decision and/or whether the applicant has rebutted any presumption;
Ground 2: Whether the respondent’s decision making has been irrational and/or unreasonable;
Ground 3: Whether the respondent’s decision making has breached the principles of legitimate expectation and/or the need to exercise discretion.
36. Notwithstanding that the claim was lodged 3 days after the three-month long stop for commencing proceedings, Upper Tribunal Judge Lindsley admitted the application and granted permission at an oral hearing on 13 May 2025 on the following bases:
“(2) The challenge is to the decision of the respondent dated 30th August 2024 in which it was found that her 1971 Act s.3C leave had expired 10 working days after the rejection of her fee waiver application made on 20th March 2023, which the respondent had refused on 1st June 2023. The result of this decision is that the applicant was present in the UK without leave between mid-June 2023 and the 19th June 2024 when she was granted a further period of time under the family and private life route.
(3) It is arguable that valid service of the refusal of a fee waiver is not defined in any legislation or policy document of the respondent and therefore it is arguable that it might be properly defined as actual knowledge of the decision rather than service to an email address provided. It is arguable that the applicant only came to actually know about the decision rejecting this fee waiver application on 23rd August, when it was served on her by the respondent as a copy decision, and that she put in a further application for a fee waiver on 26th August 2023. It is arguable therefore that if actual knowledge of a fee waiver decision was required that in accordance with the respondent’s policy of treating persons with outstanding fee waiver applications as having s.3C Immigration Act 1971 leave that she would have had no period without leave to remain from the expiry of her leave on 22nd May 2023 and her new grant on 19th June 2024, and thus that the decision of 30th August 2024 errs in law when it states otherwise. ”
The Hearing and some preliminary/peripheral matters
37. Upper Tribunal Judge Lindsley issued directions for the filing of the Detailed Grounds of Defence and Skeleton Arguments. The respondent was required to serve her skeleton argument no later than 7 days prior to the substantive hearing, which meant it was due on 14 August 2025. In the event, it was not filed nor served until after 5pm on 18 August 2025 and on 19 August 2025 the respondent applied for relief by way of an extension of time to file and serve her skeleton argument. The application was opposed and I dealt with it as a preliminary issue at the hearing.
38. I heard arguments from both sides following which I granted the application. Applying the three-stage test in Denton v TH White Ltd & Anor [2014] EWCA Civ 906 I considered that a delay of 5 days in the context of a 7 day window was serious. I had some sympathy with the applicant’s submissions that planned holidays would have been known for some time so that did not amount to a good reason, but on the other hand, holiday season makes securing replacement Counsel more difficult. In any event, I had to consider whether to grant relief in all of the circumstances and I was satisfied there was but one answer to that question. This was a serious public law challenge to a decision made by the respondent and the underlying factual matrix involves interpretation of the Rules in an area for which both parties agreed there is currently no authority. It was, in my mind, critical for the Tribunal to be assisted by the respondent on the important issues raised in the grounds of review. The skeleton argument itself structured the respondent’s argument in a way which was helpful to the Tribunal and, contrary to the applicant’s submissions, did not deviate to any material degree from the respondent’s detailed grounds of defence which of course the applicant already had. Mr Karim confirmed that whilst he would have liked a little more time, he was ready to deal with the hearing today and he was not seeking an adjournment. In those circumstances no real prejudice to the applicant was raised.
39. Counsel were agreed that the issue of what is meant by ‘received’ in paragraph 34G(4) of the Rules is not one on which there is any direct authority, but it is an issue which arises fairly frequently in practice. They were agreed in the main that a decision to refuse a fee-waiver is not captured by section 4 of the 1971 Act, so the Immigration (Leave to Enter and Remain) Order 2000 (“2000 Order”) does not apply such as to govern the methods and presumption of service. For that reason, it was very helpful to have their detailed skeleton arguments and I am grateful to both for their thorough oral submissions.
40. As to evidence, unusually in judicial review proceedings, the applicant had filed a witness statement from the applicant and her solicitor on the issue of the ‘non-receipt’ of the decision of 1 June 2023. The applicant invited the respondent to indicate whether or not she wished to cross-examine either witness. The respondent replied to say that she had no questions for the witnesses. On that basis Mr Karim did not call the witnesses and in due course invited me to find the evidence unchallenged. Mr Biggs objected to this course of action.
41. Although not dealt with as a preliminary matter at the hearing, it is convenient to deal with the issue here in order to explain the structure of this decision.
42. This was not an issue which was ventilated in any detail before or during the hearing. It was not raised in the oral permission hearing. The respondent did not raise it when she confirmed she had no questions for the proposed witnesses. Mr Biggs submitted that it is not a precedent fact case as it is not a case governed by the 2000 Order which includes a presumption of service. On the other hand Mr Karim maintained this had always been a precedent fact case.
43. The usual public law position is that the decision is scrutinised in light of the material and information before the decision maker at the time the decision is made. There are exceptions to that, one of which is where it is alleged that there is an absence of required “jurisdictional” or “precedent fact”. Where a set of facts must exist for the exercise of the jurisdiction of the decision-maker the Tribunal is entitled to inquire into the existence of those facts. The statute in such a case imposes a condition as precedent to the exercise of the public authority’s power and it is the duty of the Tribunal to ensure that the condition has been met. For example, when challenging a removal decision made pursuant to section 10 of the 1971 Act it is necessary for the Tribunal to decide whether the underlying statutory criteria giving rise to removal is established because, if not, the power to remove simply does not exist (R (on the application of Giri) v Secretary of State for the Home Department [2015] EWCA Civ 784 applies).
44. In the instant case, given the nature of the decision under challenge I am not satisfied this is a situation which requires me to decide upon the issue of ‘receipt’ on a precedent fact basis. The issue of ‘receipt’ arises from the application of the Rules rather than through operation of statute. There is no sense in which the respondent’s jurisdiction is contingent upon the exercise of a factual situation defined in statute. Accordingly, I do not deal with the evidence under Ground 1 when considering the question of ‘receipt’. Rather, I deal with the question of whether or not the respondent’s decision to treat the 1 June 2023 decision as having been served/received on that date on the usual public law review grounds as part of the rationality challenge contained within Ground 2.
45. In so deciding, I am cognisant that this sets aside the question of what needs to be shown by way of ‘receipt’ in cases not covered by the 2000 Order from those that are. As will be seen, service of decisions which are covered by the 2000 Order give rise to presumptions of service which are rebuttable. In the cases where there is no such presumption, there is a potential lacuna which has the potential to give rise to unfairness. I shall return to this below.
46. Finally before moving onto the specific grounds, there was one other matter which arose at the hearing and in respect of which further evidence was provided. As can be seen from the background events, it was the respondent’s case that on 2 and 17 May 2023 she emailed the applicant requests for further information to which she never received a reply. The applicant noted that, unlike the 1 June 2023 email, the respondent had not served evidence of the receipt of those earlier emails. Although Mr Karim appeared to submit at times that a failure to show that those requests had been received vitiated the decision on 1 June 2023, he accepted that (in isolation) the applicant’s case was not pleaded on that basis. However, he did not resile entirely from that position as a result of which Mr Biggs applied to admit the evidence that both of the earlier emails resulted in an email delivery receipt much like that for the 1 June 2023 decision. I permitted time for Mr Karim to take instructions on the application to admit this evidence late and, having done so, he confirmed the application was not opposed on the basis that the applicant’s case that delivery of emails does not amount to ‘receipt’ in law. To that extent the applicant’s position on the earlier emails is the same as the position in relation to the 1 June 2023 email. Accordingly, I permitted the late evidence and the claim proceeded on the basis that it was accepted that all three emails were sent and resulted in an email delivery receipt from the applicant’s email system.
Ground One - Discussion
47. Ground 1 was the main focus of both parties’ arguments before me. There is a degree of overlap between the grounds in any event.
48. The applicant pursued Ground 1 on the basis of three alternative arguments as follows:
a) As service of fee waiver decisions is not governed by primary or subordinate legislation, the common law applies. This means there must be actual receipt of the decision. Mere delivery is not sufficient. The applicant has shown that she did not, in fact, receive the decision. If the decision of 1 June 2023 was not received, it remains outstanding and any applicable time does not begin to run.
b) Alternatively, section 4(1) of the 1971 Act applies and the decision to refuse leave and not simply a refusal of a fee waiver must be “given” to the person concerned, as the making of a fee waiver is commencing an application process.
c) The applicant can and has rebutted any deemed or presumed service (if such a presumption exists at all) by virtue of the evidence she relies on and the overall circumstances she advances.
49. The respondent’s overarching position in relation to Ground 1 is that even if the applicant did not ‘receive’ the decision of 1 June 2023 until 23 August 2023, it does not matter. That is explained by a proper understanding of how paragraph 34G(4) operates and the interrelationship between that and section 3C. In short, even on her case the applicant did not make an application for leave to remain within 10 working days of her receipt of the decision on 23 August 2023. Accordingly, applying 34G(4), her application cannot be deemed to have been made on the date of her fee waiver application. By the time it was in fact made, it was after the expiry of her leave, so section 3C was not engaged.
50. Nevertheless, the respondent maintains that the fee waiver decision of 1 June 2023 was ‘received’ by the applicant for the purpose of paragraph 34G(4) and it is not necessary to show actual knowledge of the decision.
Paragraph 34G and its interplay with section 3C
51. Section 3C is a cornerstone of the legal framework governing whether and when a person has been in the UK lawfully. In addition to the power conferred by section 3(1) of the 1971 Act to ‘give’ a person entry into or to remain in the UK, section 3C extends leave subject to the criteria therein being met.
52. It is clear from section 3(1)(a) of the 1971 Act that only a person who already has limited leave to enter or remain in the UK can potentially benefit from leave extended by section 3C. They also have to have applied to the respondent for a variation of the leave. ‘Variation’ is not defined in the 1971 Act but section 3(3) says:
“In the case of a limited leave to enter or remain in the United Kingdom,-
(a) 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, but if the limit on its duration is removed, any conditions attached to the leave shall cease to apply; and …”
53. Providing the person applies for a variation before their extant leave expires, their leave is extended under section 3C if that leave expires before their application for variation is decided or withdrawn. There are further periods during which leave is also extended under section 3C but they are not relevant for the purposes of this judicial review.
54. Two points arise from this for the purposes of this stage of these judicial review proceedings. Firstly, what is meant in section 3C by ‘application for variation’ and secondly, when is an application made?
‘Application for variation’
55. I have set out the respondent’s overarching position on this at [49] above. Mr Biggs reiterated in oral submissions that for the purposes of section 3C, an ‘application for variation’ can only relate to an application for variation of leave not an application to vary a fee waiver request.
56. He pointed to paragraph 34G(4) to submit that in the context of an online application which includes a request for a fee waiver, an “application (or variation of application) for permission to stay” is deemed made at the date of the fee waiver request. That has the potential effect of triggering 3C leave providing the request is made before the expiry of the current leave, but only if the completed application for permission to stay is submitted within 10 working days of the receipt of the decision on the fee waiver request. He submitted that, if that second stage does not take place, then the application is not deemed to have been made at the date of the fee waiver request.
57. Mr Karim submitted that the applicant was able to benefit from the protection afforded by paragraph 34G(4) because she made an application to vary her fee-waiver application within 10 days of the date on which her fee waiver request was decided. He submitted there is nothing to prevent a second or subsequent fee waiver application and he relied on paragraphs 34GB and 34BB of the Rules to support his submission.
58. Paragraph 34GB says:
“Where a variation application is made in accordance with paragraph 34BB, the date the variation application (the new application) is made is deemed to be the date the previous application was made prior to it being varied (the old application).”
59. Paragraph 34BB is headed “Variation of an application”. The relevant parts say:
“34BB Except where one or more applications have been made under Appendix EU (see paragraph EU10 of Appendix EU):
(1) Where an applicant has an outstanding application for entry clearance or permission to stay which has not been decided (“the previous application”), any further application for entry clearance or permission to stay will be treated as an application to vary the previous application and only the most recent application will be considered……”
60. I cannot accept Mr Karim’s submission on the interpretation of paragraph 34GB when read with 34BB. It is patently clear that 34BB governs the making of a second or subsequent application for entry clearance or permission. It says so expressly. Construing the Rules sensibly and in accordance with their natural and ordinary meaning2, there is no basis to interpret that as meaning anything other than what it says and in my judgment it cannot be interpreted to include the variation of a fee waiver request. It follows that paragraph 34GB only captures those applications referred to within 34BB and deems them to have been made on the date on which the original application (for entry clearance or permission) was made. It has no bearing on fee waivers whatsoever.
When is an application made?
61. Neither do I find there to be any support for Mr Karim’s submission that there is no interplay between the fee waiver regime and section 3C of the 1971 Act. I prefer the respondent’s position namely that the relationship between the two is governed by the provisions of paragraph 34G(4). In my judgment (and to adopt the terminology used in the respondent’s skeleton argument), when someone makes an application which includes a fee waiver request, that ‘anchors’ the date on which the application (or variation of application) for permission to stay is made as being the date on which the online request for a fee waiver is submitted “as long as” the completed application is submitted within 10 working day of the receipt of the fee waiver decision. For the purposes of section 3C, providing the date on which the fee waiver request was made is prior to the expiry of the person’s existing limited leave to remain, they are protected by 3C leave until (at least) their application (for variation of leave) is decided or withdrawn.
62. Mr Karim submitted that it is not clear to an applicant that refusal of a fee waiver application has the effect of cancelling previous 3C leave. I do not find that submission to be made out given the inclusion in the letter refusing the applicant’s fee-waiver decision which says,
“Date of Application
We have rejected your request for a fee-waiver. In order to continue your legal immigration status, you must submit your immigration application within 10 working days from the receipt of this letter.
If you submit an online immigration application before the 10 working days from the receipt of this letter, the date of your application will be the date on which you made your request for a fee waiver. If submitted after the 10 working days, the application date will be the date on which you make the online payment for the application. ”
63. There is an inherent link between section 3C and Rule 34G(4) notwithstanding the lack of express reference to each other. In order to engage section 3C an application for variation of leave to enter or remain has to be made before the expiry of leave. In order to decide when an application is treated as being made, one has to refer to paragraph 34G of the Rules. Only by considering the two together is it possible to determine whether an application was made before the expiry of leave or not.
64. In my judgment there is no merit in Mr Karim’s submission that, for the purposes of section 3C, the ‘application’ is started solely by the fee waiver request and only ended with a decision on the application for variation of leave. He also relied on this argument to support his alternative position under [48(b)] above in order to argue that the decision on the fee-waiver request was part of the application and, accordingly, a decision on it had to be given in writing in accordance with section 4(1) of the 1971 Act.
65. I find this to be a misreading of both section 4(1) of the 1971 Act and paragraph 34G(4). Firstly, a fee-waiver request is not an application to which section 4(1) applies applying the ordinary meaning of the words which I have underlined at [7] above. Furthermore, applying paragraph 34G there is an intermediate step required before an application is ‘made’. That is the submission of the completed application within ten working days of the decision on the fee waiver application. It is not until that step is taken in accordance with the timescale set out in paragraph 34G(4) that the application is ‘made’. Conversely, if that step is not taken, there is no application which has the effect of conferring 3C leave and neither is there an application for ‘leave to enter or remain’ for the purposes of section 4(1) of the 1971 Act.
Conclusions on the relationship between Paragraph 34G(4) and 3C Leave
66. Hence, in those circumstances I am satisfied that service of a decision on the fee waiver request is not governed by section 4(1) of the 1971 Act because it is not a decision to give, refuse, vary or cancel leave to enter or remain.
67. Furthermore, in my judgment, in these circumstances, it is not the decision on the application for variation of leave which ends 3C leave, rather, the absence of a timely application for leave nullifies the temporary protection afforded by the submission of a fee waiver request.
68. Mr Karim identified a potential flaw in the fee waiver regime as it relates to section 3C leave, namely, a person who submits a fee waiver request before the expiry of their leave, the request remains outstanding at the point their leave expires, but they come into funds such that they withdraw their application and make a paid application. By the time their application is made and as is not accompanied by a fee waiver request, applying paragraph 34G(3), it is deemed to be made on the date it is submitted which is after the expiry of their leave. In those circumstances, on the respondent’s case, the person does not benefit from 3C leave and will be deemed an overstayer.
69. Mr Biggs said the respondent does not defend the claim on this basis. It is not the factual position before me. Accordingly, it is beyond the scope of this judicial review for me to deal with the potential mischief Mr Karim identifies.
70. Before turning to the substance of the applicant’s challenge under Ground 1, I consider the implications of what I have decided above to an aspect of the facts of the case before me. Leaving aside for the moment the question of whether or not the decision of 1 June 2023 was received, it is not in dispute that the applicant received the decision refusing her request for a fee waiver when it was sent (again) on 23 August 2023. Furthermore, it is not in dispute that within the 10 days thereafter, the applicant did not apply for leave to remain and, accordingly, applying my findings (in accordance with the respondent’s submissions which I accept), the applicant cannot benefit from paragraph 34G(4) which would (if it applied) have the effect of extending any section 3C leave to which she may otherwise be entitled.
71. For the reasons given, even if it were permissible to vary a fee-waiver application, by the time the second one was made, the applicant was aware that her first application was refused as she accepts she was sent it and received it on 23 August 2023. Accordingly, there was simply no outstanding application to vary.
What is meant by ‘receipt’ in 34G(4)?
72. Mr Karim’s position is that, notwithstanding the above, the 1 June 2023 decision was not received therefore it remains outstanding and, accordingly, any time period triggered by receipt of a fee waiver decision has not yet started to run. Accordingly, I turn next to the applicant’s primary ground as contained within (a) at [48] above. The respondent maintains that the decision was served when it was received by the applicant’s email system.
73. As to what is meant by ‘receipt’ for the purposes of paragraph 34G(4), for the purposes of the first limb at Ground 1(a) it was not disputed that a decision to refuse a fee-waiver is not a decision to which section 4(1) of the 1971 Act applies and I agree with that.
74. Nevertheless, in light of the submissions Mr Karim made, and to contextualise the authorities to which I have been referred, it is necessary to consider in more detail both section 4(1) and the 2000 Order. I have set out what Section 4(1) says at [7] above.
75. As section 4(1) does not apply to fee-waiver decisions, neither does the 2000 Order which at Article 8ZA(2) sets out the way in which such a “notice in writing …. may be given to the persons affected as required by section 4(1)” of the 1971 Act. That includes at 8ZA(2)(d) that the notice may be:
“sent electronically to an e-mail address provided for correspondence by the person or the person’s representative”.
76. Article 8ZA(3) makes provision for when no postal or e-mail address is provided and (4) deals with the deeming of service in the event of failed attempts at service pursuant to 8ZA(2) and (3). Article 8ZB sets out further provisions in relation to “presumptions about receipt of notice” pursuant to notices sent in accordance with article 8ZA.
77. Many of the authorities to which I have been referred and which go to the issue of ‘receipt’ arise in the context of decisions captured by both section 4(1) of the 1971 Act and the 2000 Order. In the main, those authorities were considering curtailment decisions. It was common ground that none of the authorities arising from an immigration context related to the position of ‘receipt’ within paragraph 34G(4) of the Rules.
78. Mr Karim relied firstly on Syed (curtailment of leave – notice) [2013] 00144 (IAC). This was a decision made prior to the amendment of the 2000 Order in 2013 by virtue of SI 2013/1749 which introduced Articles 8ZA and B (as a result of the ruling in Syed) in order to deal with the means of ‘giving notice’ for the purpose of section 4(1) decision (which was not also an immigration decision within the meaning of section 82 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”)). Accordingly, when Syed was decided, it was the common law requirements which were under consideration when deciding how the Secretary of State was able to prove communication of such a notice. It is common ground that a fee waiver decision is not an immigration decision within the meaning of section 82 of the 2002 Act and neither is it a decision made under section 4(1) of the 1971 Act.
79. At headnote 3 reflecting [28] of Syed, the Upper Tribunal said that in the situation as applied therein:
“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 the person’s behalf: see Hosier v Goodall [1962] 1 All E.R. 30; but the Secretary of State cannot rely upon deemed postal service”.
80. In Hosier v Goodall, it was held that a ‘notice of intended prosecution’ in relation to an alleged road traffic offence was properly served when sent to the defendant’s home address by registered post and received by the defendant’s wife who was a person authorised to receive and deal with it. At the material time, the defendant himself was in hospital and unaware of the notice.
81. The Court confirmed that it was not a question of whether the police acted reasonably in their actions of sending the notice in this manner,
“but whether it has been shown that a notice wherever sent has been received”.
82. The Court decided that if the police could show that,
“it is taken in by a person authorised not merely to sign for it, but to receive it and deal with it, then it has in fact been received by the defendant”.
83. In Syed, the respondent had twice attempted to serve on the appellant a decision terminating his leave to remain, each time by recorded delivery, but each time the notice was returned. Accordingly, the Upper Tribunal decided that the First-tier Tribunal made a material error of law in finding the appellant’s leave to remain had been validly terminated by the attempted service by recorded delivery which the respondent accepted had not been achieved. In other words, in Syed it was accepted the notice was not in fact received because the recorded delivery letter was returned.
84. Contrast that to the position in the instant case where it is common ground that in response to the respondent sending the 1 June 2023 fee-waiver decision to the email address the applicant provided within the fee-waiver application, the respondent was sent a “successful delivery” receipt timed at 13.00 hours on 1 June 2023 which said:
“your message was successfully delivered to the destination(s) listed below”.
85. The destination was the applicant’s email address.
86. To that extent, Syed can be distinguished on its facts. However, it is significant that Syed confirmed what had been found in Hosier that, notwithstanding the defendant had no actual knowledge of the notice, it was treated as having been communicated to him.
87. In my judgment, the material finding in Hosier was the confirmation that what was required was that the notice was sent to someone authorised to receive and deal with it. That goes to the heart of the matter which is that the person to whom the notice is directed has a fair opportunity to deal with the content of the notice, particularly if it is unfavourable to them or if there are consequential steps the person needs to take.
88. I am fortified in this, perhaps fairly trite point, by [22]-[25] of Alam and Rana v Secretary of State for the Home Department [2020] EWCA Civ 1527 on which both parties relied, albeit for marginally different reasons. At [22]-[26] Floyd LJ summarised the authorities as to the importance of this issue to the rule of law and fairness generally, primarily with reference to the decision of the House of Lords in R (Anufrijeva) v Secretary of State for the Home Department [2003] UKHL 36 on which the applicant also relies in the present appeal.
89. It is accepted that Alam is a case under the section 4(1) and 2000 Order regime. Nevertheless, it is useful for what it says about the jurisprudence which has developed since Syed, about electronic communications and about the underlying principles relating to what amounts to the ‘giving’ of notice. As was made plain in [20] this was really the issue which divided the parties in Alam.
90. The respondent relied heavily on Alam for two principal reasons. Firstly for what Floyd LJ goes on to say at [20]:
“On the most generous approach (to the appellants) to this issue, the requirement for the giving of notice could mean that the person affected must become aware of the contents of the decisions. On this approach the person affected must not only have the notice in his hands, but must also have opened the envelope or other medium by which it is delivered and read it. The difficulty with this approach is that those who do not trouble to open their mail, or collect recorded delivery items from the Post Office, or look at their emails, can effectively insulate themselves from being given notice.”
91. Furthermore, having examined the constitutional and fairness points Floyd LJ said at [26]:
“these passages do not support the notion that a communication will only be effective if the decision has been read and understood by the person affected. The European law approach described by Lord Steyn speaks in terms of a party affected being given the opportunity to make themselves acquainted with the decision”.
92. At [27] he then noted that at [43] of Anufrijeva, Lord Millett had concluded that reasonable steps to communicate with the person could be enough.
93. He noted at [28] that at [15] of UKI (Kingsway) Ltd V Westminster City Council [2018[ UKSC 67, the Supreme Court approved the observations of Lord Salmon in Sun Alliance and London Assurance Group v Hayman [1975] 1 WLR 177 that the ‘giving of notice’ means ‘causing a notice to be received’ noting further that Lord Salmon said:
“Therefore, any requirement in a statute or a contract for the giving of a notice can be complied with only by causing the notice to be actually received – unless the context of some statutory or contractual provision otherwise provides”.
94. Floyd LJ decides this issue at [29] as follows:
“In my judgment, the giving of notice for the purposes of section 4(1) of the 1971 Act and the 2000 Order does not require that the intended recipient should have read and absorbed the contents of the notice in writing, merely that it is received. If it were not so, a failure to open an envelope containing the notice, for whatever reason, should mean that notice was not given. Similarly, I do not consider that the recipient must be made aware of the notice. Again, a recipient who allows mail to accumulate in a mailbox or on a hall table will not be aware of the notice. Proof of such facts should not enable the person to whom the mail is addressed to establish that the notice was not given, by being not received”(my emphasis).
95. At [30], Floyd LJ then proceeds to consider what can amount to the giving of notice. Relevant to the instant case he says receipt is not limited to, for example, placing the notice in the hands of the person affected,
“receipt in the case of an individual is not so limited. Receipt of an email for example will be effected by the arrival of the email into the inbox of the person affected. Likewise, documents arriving by post will normally be received if they arrive, addressed to the person affected at the dwelling where he or she is living, at least in the absence of positive evidence that mail which so arrives is intercepted. A document received at an address provided to the SSHD for correspondence is received by the applicant even if he does not bother to take steps to collect it”.
96. Finally at [31] Floyd LJ said of the burden of rebutting the presumption (in Article 8ZB of the 2000 Order):
“the burden of proving the negative, non-receipt, in the face of
convincing evidence leading to the expectation of receipt, will
not be lightly discharged. In particular it will not be discharged
by evidence, far less by mere assertion, that the notice did not
come to the attention of the person affected”.
97. Pausing here, notwithstanding that the court in Alam was dealing with a section 4(1)/2000 Order case, I find the above to have some application here because of what the Supreme Court decided in UKI applying Sun Alliance that ‘giving a notice’ means ‘causing a notice to be received’. To the extent Floyd LJ then proceeds to consider what is meant by ‘receipt’, I find it to apply to decisions such as in the instant case which are not captured by section 4(1) or the 2000 Order but where ‘receipt’ is an operative step and is to be interpreted by common law.
98. The applicant relies on Alam to the extent that Floyd LJ appeared to say that receipt could be effected by “the arrival of the email into the inbox of the person affected”. The point here is that on the applicant’s case, the respondent’s email did not arrive into the applicant’s inbox. Although not her express case, I will consider below whether it may have arrived into another folder, perhaps junk or spam.
99. The applicant also noted what was said in Escobar v Secretary of State for the Home Department [2024] EWHC 1097 (Admin) (another curtailment case) about the situation even if an email arrived in a person’s inbox. At [30] Sheldon J said:
“As has been highlighted in the present case, it is theoretically possible for an email to be intercepted once it has arrived in an inbox. Persons can share inboxes, or allow others to access them. The other person could delete the relevant email from the Secretary of State accidentally – when scrolling through the inbox – or deliberately. An email inbox can be interfered with by a third party even where it is password protected, and that password is not deliberately shared with others”.
100. Accordingly at [31] Sheldon J said:
“I consider, therefore, that it is permissible on the facts of a particular case for an applicant to seek to persuade the Secretary of State, and subsequently the Court or relevant tribunal, that the email was intercepted before it could be read. Of course, the burden of persuasion will be on the applicant, and the burden will not be lightly discharged. Indeed, I would expect the Secretary of State (or the Court or relevant tribunal) to be somewhat sceptical of an argument that an email was deleted from an inbox whether accidentally or deliberately without convincing evidence".
101. Mr Biggs advised that the respondent has argued recently in SSHD v Dhandapani CA-2023-001614 that Escobar was wrongly decided because by the time of the ‘interception’ referred to in Escobar, receipt had already been effected. The Court of Appeal’s decision in Dhandapani was awaited at the time of the hearing but was published on 7 October 2025 with the citation [2025] EWCA Civ 1244. Mr Karim submitted that Escobar remains good law unless and until overturned. At [56] of Dhandapani, the Court of Appeal declined to deal with Sheldon J’s observations about the interception of emails as it was not a feature of the case before it. Likewise in the instant case, there is no express evidence or submission before me that the applicant’s inbox was a shared one or that someone may have interfered with it as was the case in Escobar. It is also pertinent to note that unlike the instant case which does not involve the 2000 Order and therefore a presumption of service, Sheldon J was considering whether or not a person was permitted to rebut a presumption of service (or more particularly that it was intercepted from the inbox before being read). It is notable that the Claimant then was unable to do so.
102. In Dhandapani the Court observed that the issue before it was the process for giving notice for decisions made under section 4(1) of the 1971 Act and therefore the application of the 2000 Order which includes rebuttable presumptions about service. The particular method of service in Dhandapani was by way of email. The Court was also directed to the respondent’s guidance, which was not a matter raised in the instant case. Furthermore, the Court was considering whether the Upper Tribunal was correct in law to refuse permission to the applicant to bring judicial review proceedings. The Upper Tribunal had decided the application was outside of the three month time limit. In the event, the Court decided that was an error and remitted the application to the Upper Tribunal. Accordingly, a final decision was not made as to what was meant by service in section 4(1)/2000 Order cases, only that there was at least an arguable case that the decision in question had not reached the applicant. For that reason, I did not find Dhandapani to be of such significance in the instant case that I needed to seek the parties’ submission upon it.
103. Mr Karim’s submission arising from the caselaw on which the applicant relies was set out at [40] of his skeleton argument. He submitted in oral submissions that Hosier applies to common law situations and that held that there has to be actual receipt and knowledge. He submitted that, by analogy, an email has to arrive in someone’s inbox and be opened and read (Alam relied on). He further submitted the applicant has provided sufficient evidence for doubt to be raised about that. To the extent that he refers to the evidence showing a lack of receipt, his submission overlaps with Ground 1(c) (see [48] above).
104. I cannot agree with Mr Karim’s interpretation of Hosier. As I have set out above, Hosier does not say that actual receipt or knowledge is required. In fact, in Hosier itself there was no such receipt or knowledge by the defendant personally. When I raised this with Mr Karim at the hearing he accepted this accurately characterised the decision in Hosier. Furthermore, returning to Alam, I do not find that Floyd LJ’s use of the word ‘inbox’ at [30] amounts to a specific finding that service would be effected by email solely if the email arrived into the ‘inbox’ of a person as opposed to having arrived into the email system of the person concerned. First of all, the factual matrix before the Court of Appeal in Alam was not communication sent by email. Accordingly the Court did not have the benefit of detailed argument on the issue of electronic communication and accordingly his observations are obiter (as also recognised by Sheldon J at [29] of Escobar). Secondly, Floyd LJ did not say that arrival into the inbox was the only way receipt by email could take place and nor did he specifically define or explain what he meant by inbox.
105. Mr Biggs submitted that receipt into the email system is sufficient. The two strands of his submission were that, firstly, this affords the person the opportunity of becoming aware of the notice (as it is within their ability to check all their email inboxes) and, secondly, that such a finding avoids the idiosyncratic behaviour or settings of an email system which could otherwise preclude receipt. I would add here that his submissions are only potentially made good if the email address is one a person has specifically authorised for this purpose.
106. Mr Karim relied on the evidence to show that the applicant did not receive the email as a matter of fact. He pointed to the email correspondence between the applicant and respondent commencing on 5 August 2023 which was the date on which the applicant was first told that her fee waiver request was refused and the decision sent to her on 1 June 2023. He submitted that the evidence showed the applicant responded promptly and honestly to all emails to the effect that she had been checking her emails, that after advised to do so on 5 June 2023 she checked her spam and other folders and she had no trace of the 1 June 2023 email. He further submitted that when she sought advice as to what to do she was told she could make another request for a fee waiver which is what she did. She was later told that her section 3C leave continued accordingly.
107. He submitted that to permit the respondent’s position to be correct would lead to unfair results as the respondent effectively holds all the cards. He submitted that to interpret ‘receipt’ as the respondent does is tantamount to interpreting it as meaning ‘sending’ an email.
108. On that issue I disagree. There is a difference in my judgment between sending an email for which no confirmation of delivery is received or for which a ‘bounce back’ message is received, and sending one which results in an email delivery receipt (as is the accepted position here). In my judgment, the respondent is entitled to rely on the email delivery receipt in circumstances where a fee waiver decision is sent by email to a person using the email address the person has provided for that purpose. Such a system is analogous to the situation which was considered in Hosier. There, the point the court made was not that police had to show that the defendant had received and had knowledge of the Notice then being sent but that an agent of his had received it so that he had a fair opportunity to act upon it. In that instance it was his wife and she had received the letter. The court in Hosier did not hold that it was necessary even that the police then show that the agent (wife) had opened the letter and read it, her receipt of the letter itself was sufficient.
109. In the instant case, an email arriving into a person’s given email system (no matter where it ends up in that system) is still being sent to the person to whom it relates who then has the opportunity to act upon it. In my judgment, it is incumbent on a person who provides an email address to take steps to check their inbox and other relevant folders for any response. In my judgment, the foibles of email systems are sufficiently commonplace to justify more than a cursory look in an inbox as to whether or not a particular email has been received. If it is not there, an active check of other folders can be done. Alternatively, the search function of the email system can be utilised using certain key words to see if the email can be traced no matter into which folder it has been directed.
110. To interpret receipt as being solely into a person’s inbox would render use of the email system as a form of communication inoperable. Having satisfied herself that an email has been delivered (through the email delivery receipt) there is little if nothing else the respondent can do to ensure that the person actually receives the email. The only person who can ensure actual receipt is the intended recipient through ensuring that their email system is set up to receive emails reliably and securely and through a series of reasonable and sufficiently regular checks of that system. If they are not sure of the reliability or security of their email system, it should not be offered as a method of service.
111. Returning to what is meant by ‘receipt’ in the context of paragraph 34G(4), I interpret it to include where there is evidence of a successful delivery of an email sent to the intended recipient at an email address they have provided for use in connection with the fee waiver request (or in other situations not governed by section 4(1) of the 1971 Act or the 2000 Order, in connection with the application or situation in question).
112. That means that, at the point at which the respondent’s email of 1 June 2023 was sent to the applicant and the successful delivery receipt timed at 13.00 on that date was received, the decision was ‘received’ by the applicant.
113. Even if I am wrong as to how ‘receipt’ in paragraph 34G(4) of the Rules is to be interpreted, it is a matter of undisputed fact, that the applicant received (and was aware of) the decision of the first fee-waiver request by 23 August 2023. She did not make an application for permission to stay in the UK within 10 working days thereof. Accordingly, paragraph 34G(4) of the Rules does not apply to her so as to mean her application was made at the date of the making of the fee-waiver request, thereby engaging section 3C leave.
114. I return here to the question of the potential for unfairness which I raised at [45] above. Absent the introduction of a procedure analogous to that contained within the 2000 Order establishing a rebuttable presumption of service, the responsibility for ensuring that unfairness does not follow is the respondent’s if she wishes to continue to utilise service by email. By that I mean, it will be for the respondent to act reasonably upon being told that someone has not received (in the sense of not being able to trace) a decision, such as a fee-waiver decision, which requires a person to take certain steps within a time-limit in order to avoid the interruption of otherwise lawful residence (or some other analogous prejudice).
115. As Mr Biggs reiterated at the hearing, the respondent has discretion to overlook certain matters or take steps to alleviate potential unfairness. In the instant case, the respondent re-sent the fee-waiver refusal to the applicant on 23 August 2023. Whilst it is not the case before me, if the applicant had submitted an immigration application within 10 working days of 23 August 2023 which resulted in a grant of leave, but the respondent still treated the period between the expiry of her previous leave and the new leave as not covered by section 3C leave, it would be at least arguable that such a position was unfair if the applicant had no ability to argue that, notwithstanding evidence of receipt into her email system, the 1 June 2023 email could not be found but she acted in accordance with her obligations when she did, in fact, receive and become aware of it.
116. Be that as it may, I return to Ground 1 and the three limbs. I reject the applicant’s contention that where the common law applies to the question of whether or not a fee-waiver decision has been received pursuant to paragraph 34G(4) of the Rules, there must be actual receipt of the decision. The respondent is able to show that the decision was received by evidence of delivery of the decision into the email system of the email account the person has provided for that purpose where there is evidence of a successful delivery receipt as was the case here. This is sufficient to constitute receipt for the purposes of paragraph 34G(4) of the Rules. The applicant has not persuaded me that section 4(1) of the 1971 Act applies in the alternative. A decision on a fee-waiver request is not an immigration decision within the meaning of section 4(1) and for the reasons I give at [66] above, a fee-waiver request cannot be construed as such. As section 4(1) of the 1971 Act does not apply, neither does the 2000 Order. Accordingly, there is no presumption of service. It is for the respondent to act reasonably if confronted with evidence from a person that they had not, in fact, become aware of the email in question particularly where there is a risk of otherwise lawful residence being lost.
Grounds 2 and 3 - Discussion
117. Ground 2 challenges the rationality of the respondent’s decision-making underlying the impugned decision on the basis that it is contrary to the respondent’s previous assertions and assurances to the applicant, and therefore, is on its face irrational and unreasonable.
118. I have broken this issue down into the following two questions:
a) Was it rationally open to the respondent to treat the refusal of the fee-waiver application as having been received by the applicant on 1 June 2023?
b) Was it rationally open to the respondent to decide that the section 3C leave ceased because the applicant did not make an immigration application within 10 working days of 1 June 2023?
119. Under the umbrella of these 2 questions I will deal with the various threads of the applicant’s challenge under this ground and also deal with the evidence that there was of service (or lack thereof) before the respondent at the date of the decision. There is a considerable overlap here with Ground 3, so elements of those arguments may also feature here, particularly under the second of the two questions I have raised above.
Was it rationally open to the respondent to treat the refusal of the fee-waiver application as having been received by the applicant on 1 June 2023?
120. The applicant did not dispute that her email system sent the respondent a successful delivery receipt at 13.00 hours on 1 June 2023. That receipt is at page 102 of the bundle. On its face, therefore, that is reliable evidence that the email was received into the applicant’s email system. Neither did she dispute that she provided the email address to which the email was sent as an email to use with her application as evidenced by her application form at page 192. Neither did the applicant provide to the respondent prior to the impugned decision (or file within these proceedings) any expert evidence that notwithstanding the delivery receipt, the email was not in fact delivered to her email system.
121. The applicant’s evidence is that from the date on which she made her fee waiver request she was checking her emails. That much is stated in her email to the respondent on 5 August 2023.
122. Whilst a statement from her solicitor dated 30 November 2024 said the following, that was not evidence which was in the respondent’s possession at the date the decision was made:
“the client claims that she did not receive an email from the Home Office regarding the decision regarding her Fee Waiver application on 30/03/2023. We have an opportunity to check her email inbox, junk mail etc, along with her.
We can confirm that in our search, we have not yet found any emails of this nature from that date onwards”.
123. Likewise, the applicant’s witness statement of 30 November 2024 in which she said that on receipt of the email on 5 August 2023 she checked her inbox, junk mail and deleted folder and could not find the email was not before the respondent at the date of the decision.
124. Accordingly, whilst that evidence is unchallenged, it is not relevant to the question I am presently considering which requires an assessment as at the date of the decision under challenge was taken.
125. Based on the evidence before the decision maker, the respondent would have been aware from the applicant’s email of 5 August 2023 that she said she had not received the respondent’s email of 1 June 2023 in her inbox, junk mail or her deleted folder and that she had been checking her “emails” daily since lodging the application. She does not describe what she meant by “checking her emails”. Of course, her evidence was in conflict with the undisputed evidence provided by the email delivery receipt that the email was received into the applicant’s email system.
126. I have set out the rest of the correspondence between the respondent and the applicant personally or the solicitors on her behalf. It would have been clear to the respondent when considering that correspondence, that the applicant maintained that she did not receive the email of 1 June 2023, that she was concerned about the consequences of that and she was aware of the potential impact at least of a break in the continuity of her leave and was anxious to ensure that her position was protected.
127. Whilst the respondent does not dispute the applicant’s evidence that she had no actual knowledge of the decision under challenge following the email sending it on 1 June 2023, that does not amount to an acceptance that the applicant did not ‘receive’ it in accordance with what I have found sufficient to constitute receipt within the meaning of paragraph 34G(4).
128. Having considered all the evidence before the decision maker on 30 August 2024, I am satisfied that the email delivery receipt was sufficient evidence to justify a decision that the decision of 1 June 2023 was sent to the applicant by email on that date and received into her email system. That was an address which the applicant had supplied for the purposes of her fee waiver application. I find the respondent was entitled to rely on that to satisfy herself that the decision had been served on the applicant (or, in other words, that the applicant had received it). Whilst the evidence before the respondent asserted that the applicant was not aware of it, that evidence falls short of displacing the evidence that the email was in fact delivered into her email system. For the avoidance of any doubt and, in case I am wrong about my decision on whether this is a precedent fact situation, even if I did consider all the evidence on which the applicant relies on its merits, I would not be satisfied that it shows that the email of 1 June 2023 was not received into the appellant’s email system or that she was carrying out sufficient checks of all the relevant folders and or search functions to displace the otherwise unchallenged evidence of receipt of the email into the applicant’s email system.
129. It follows that it was open to the respondent to treat the applicant as having received the decision of 1 June 2023 as evidenced by the email delivery receipt and in light of how I have decided the word ‘receipt’ in paragraph 34G(4) of the Rules is to be interpreted.
Was it rationally open to the respondent to decide that the section 3C leave ceased because the applicant did not make an immigration application within 10 working days of 1 June 2023?
130. Before returning to the correspondence between the parties within this question, I turn first to two factors already considered in this decision. Firstly, given that I have decided it was open to the respondent to treat the decision of 1 June 2023 as having been validly served and given how I have found the interplay between paragraph 34G(4) and section 3C to work, those factors point in favour of the above question being answered in the affirmative.
131. The applicant’s case here however is that the decision under challenge conflicts with decisions or assertions the respondent had previously made which stated to the contrary.
132. I have set out the decision-making history above. It can be seen from there that on 29 August 2023 the applicant was told expressly that her 3C leave continues and on 12 March 2024 she was told she has made an in-time application. In part of course, those statements were made following correspondence sent by the applicant or her solicitors.
133. Pausing here, given how I have decided the issue of the relationship between paragraph 34G(4) and section 3C and my application of that to the facts of the case, I find from the outset that these assertions were wrong in law. Mr Biggs accepts as such and, indeed, relies on that fact to submit the respondent cannot be held to those assertions as they amounted to mistakes and were wrong in law. I deal with this in more detail later.
134. Mr Karim relies on Chisnell and Anor (on the application of) v London Borough of Richmond Upon Thames and Anor [2005] EWHC 134 (Admin) which said at [20]:
“The principle of consistency comprises a material consideration to be taken account of in reaching a judgment. Because of the importance to be attached to consistency, a decision-maker should not depart from it without realising the importance to be attached to it, and when departure occurs reasons for departure from any previous decision must be given.”
135. Furthermore, the applicant also relies on the ‘advice’ she was given on 25 August 2023 that she should make a fresh fee waiver application, advice she followed. At no stage was the applicant advised that to do so would end her 3C leave, to the contrary she was told on 29 August that her 3C leave would continue.
136. On this issue, Mr Biggs’ submissions were simple. The applicant asserted that she was told she had section 3C leave, asserted that she did have 3C leave and she asked for confirmation of that. The reply within the impugned decision is that the confirmation could not be forthcoming as she did not have 3C leave. He submitted that was correct in law, so the decision cannot be irrational or Wednesbury unreasonable. He submitted there was no obligation on the respondent to go any further than that, for example, examining whether there had been some sort of historic injustice or whether she should be treated as someone having section 3C leave.
137. Here there is an overlap with Ground 3. In making his submissions on that Mr Biggs relied on a string of familiar cases summarised and enunciated most recently in Re Finucane’s Application for Judicial Review (Northern Ireland) [2019] UKSC 7 on what amounts to an undertaking or promise to someone to give rise to a legitimate expectation in law and whether, in any event, if it arose, it could be defeated.
138. In Finucane, Lord Kerr summarised the principles arising from the earlier authorities on legitimate expectations as follows:
“62. From these authorities it can be deduced that where a clear and unambiguous undertaking has been made, the authority giving the undertaking will not be allowed to depart from it unless it is shown that it is fair to do so. The court is the arbiter of fairness in this context. And a matter sounding on the question of fairness is whether the alteration in policy frustrates any reliance which the person or group has placed
on it. This is quite different, in my opinion, from saying that it is a prerequisite of a substantive legitimate expectation claim that the person relying on it must show that he or she has suffered a detriment.
………
64. The onus of establishing that a sufficiently clear and unambiguous promise or undertaking, sufficient to give rise to a legitimate expectation, is cast on the party claiming it - see, for instance, In re Loreto Grammar School’s Application for Judicial Review [2012] NICA 1; [2013] NI 41, para 42 et seq. In Paponette v Attorney General of Trinidad and Tobago [2012] 1 AC 1, para 37, Lord Dyson said:
“The initial burden lies on an applicant to prove the legitimacy
of his expectation. This means that in a claim based on a
promise, the applicant must prove the promise and that it was
clear and unambiguous and devoid of relevant qualification. If
he wishes to reinforce his case by saying that he relied on the
promise to his detriment, then obviously he must prove that
too.””
139. Mr Biggs’ primary submission is that the respondent was not able to undertake to do something which was contrary to the law. To support that and on the issue of whether or not any legitimate expectation could be defeated, Mr Biggs relied (inter alia) on what was said at [53] of R (Begbie) v The Department of Education and Employment [1999] EWCA Civ 2100,
“It is common ground that any expectation must yield to the terms of the statute under which the Secretary of State is required to act”.
140. This was reiterated and expressed rather more plainly at [18] of R (Zafari) v HMRC [2024] EWHC 3013,
“there can be no legitimate expectation that a public body will take action which it has no power to take as a matter of law”.
141. Secondly, he relied on [61] of Begbie to submit that notwithstanding the mistakes made by officers of the respondent in telling the applicant her section 3C leave continued, that should not bind the respondent,
“Where the court is satisfied that a mistake was made by the minister or other person making the statement, the court should be slow to fix the public authority permanently with the consequences of that mistake”.
142. I note that in Begbie, Peter Gibson LJ did not rule out that such mistakes will never have legal consequences and may give rise to a legitimate expectation, he continued,
“The court must be alive to the possibility of such unfairness to the individual by the public authority in its conduct as to amount to an abuse of power.”
143. The authorities on which Mr Karim rely do not take the matter any further. He submitted that the previous statements made by or on behalf of the respondent on 29 August 2023, 20 October 2023 and 12 March 2024 were flagged to the respondent in the letter of 30 July 2024 yet not referred to or explained in the impugned decision. The applicant submits this is further evidence of the irrationality of the respondent’s decision and provides a reason why the respondent should be held to her assurances to the applicant that her section 3C leave continued.
144. Furthermore, under Ground 3 Mr Karim argues that, on the basis of the assurances given to her, the respondent should have exercised her discretion to confer to the applicant 3C leave (or a period of leave) covering what is otherwise a period of residence without leave and her failure to do so is irrational and unreasonable (and he submits unfair) in light of the legitimate expectation given to the applicant that her section 3C leave remained intact.
145. To support that submission, he relied on R (Forrester) v Secretary of State for the Home Department [2008] EWHC 23017 at [7] in which Sullivan J said:
“As was observed by Dobbs J, that decision was in accordance with the rules. The rules make it clear that if the fee does not accompany the application, and/or the cheque that accompanies the application is not subsequently met by the bank, then there is not a valid application. In terms of the rules it can fairly be said that the decision was impeccable. That, of course, is not the end of the matter. The defendant is given a discretion, and she is given a discretion on the basis that it will be exercised with a modicum of intelligence, common sense and humanity. It might be asked, in these circumstances, what possible reason there could have been for not exercising the discretion in this claimant's favour.”
146. In evaluating Grounds 2 and 3 I turn first to the precise terms of the correspondence between the parties and evaluate them within the above legal framework. I have focused on the three items of correspondence on which Mr Karim particularly relies but deal first with the applicant’s repeated assertion that she acted on the respondent’s advice when she made her second fee waiver application.
147. Contrary to what the applicant contends, on a proper consideration of the respondent’s email to the applicant dated 25 August 2023 (see [15] above), there is no basis to conclude the applicant was ‘advised’ to make a fresh fee waiver application. At best, she was simply told how she should do so if that is what she wanted to do.
148. I have set out at [62] above the information given to applicants when their fee waiver application is decided. These paragraphs make it clear that an immigration application is to be made within 10 working days of the fee waiver decision in order to continue one’s immigration status. However, the following information is also provided,
“Making a Fresh Request for a Fee Waiver
If you want to make a fresh request for the application fee(s) to be waived, you must complete the correct online form and submit the appropriate supporting evidence”.
149. Whilst this was not an express feature of the case before me, I simply note that, whilst applicants are told expressly what they need to do to continue their leave, the letter the respondent sends could be clearer about warning applicants that a second fee waiver receipt is not an immigration application for the purposes of the continuation of leave.
150. Moving on to the respondent’s email of 29 August 2023 (set out at [18] above) I am not persuaded that what the applicant was told then is capable of giving rise to a legitimate expectation that her section 3C leave had been extended. I say that for a number of reasons. Referring back to the procedural chronology, by the time this statement was made, the applicant accepts she had been told that her first fee waiver application had been refused. Accordingly, it could not be varied. Her second application was a new application. With that in mind, far from being a promise which was “clear and unambiguous and devoid of relevant qualification”, what the respondent actually said was confusing and contrary to the procedural chronology. Firstly, it is not clear in the first half of the sentence which fee waiver application is being referred to. The first one was made when the applicant still had leave but the second was not. Secondly, it then refers to 3C leave continuing “as long as the first fee waiver is still open”. We know that by then it was not.
151. As for 20 October 2023, Mr Karim relied on this to assert that the respondent accepted the applicant had not received the 1 June 2023 email on that date but only when sent on 23 August 2023. I am not sure that gets the applicant anywhere in light of what I have already decided about ‘receipt’. There is no dispute that the applicant did not have actual knowledge of the content until 23 August 2023 and I do not find the 20 October 2023 to be doing anything more than acknowledging the applicant’s complaint about that (albeit that matter had by then been resolved).
152. In terms of the statement in the respondent’s letter of 12 March 2024, neither do I find this to be a statement which was “clear and unambiguous and devoid of relevant qualification”. Unfortunately it suffers from a similar lack of clarity as previous correspondence emanating from the respondent’s officials. Firstly, reference to an ‘in-time application’ makes no real sense in the context of a response to the applicant withdrawing an application. Secondly, even if it could have been a reference to the fee waiver application itself, it does not say so in terms. If it was referring to the second fee waiver application it is wrong as that was not made in time. If it was referring to the first (which was in time), it makes no sense as that was decided on 1 June 2023 and that was known to the applicant on 23 August 2023.
153. I have considered whether, set in the context of the previous statements made to the applicant, this statement is capable of being understood in a way which meets the level of clarity as set out in the test for legitimate expectation, but I do not find that to be the case.
154. In conclusion, I am not satisfied that any of the statements on which the applicant relies are capable of being characterised as “clear and unambiguous and devoid of relevant qualification” such as to give rise to a legitimate expectation. In the interests of completeness, even had they been such, the respondent could not have been held to them because as a matter of law, section 3C leave can only be conferred by lawful application of the statute itself and not by discretion. Accordingly, this is a situation to which Begbie applies.
155. The question of consistency in decision-making, however, is a different question to that of legitimate expectation. I return to Mr Karim’s reliance on Chisnell in the context of his submission that the respondent failed to address her previous statements to the applicant in the impugned decision which renders that decision irrational. The respondent’s decision is brief in content. She did not address any of the statements formerly given to the applicant. She did deal with the statement contained in the 12 March 2024 letter within her pre-action protocol, but that was not until 8 November 2024.
156. The first observation is that contrary to (at least) the implication of Mr Karim’s submission, I have not found the respondent’s decision-making or the statements she made prior to 30 August 2024 to necessarily be consistent up to that point. I have set out the reasons why the statements relied on do not say exactly what the applicant believed them to say albeit I can perhaps understand why she thought they did on a superficial reading of the same. When looked at properly, the statements do not amount to a consistent thread of assurances that the applicant had continuous leave. The second observation is that the applicant was aware when she was told by the hospital that the respondent was claiming to them, at least, that the applicant had made an out of time application and her leave had therefore broken.
157. Finally, and most importantly, in the decision under challenge, the respondent was setting out a position in law, one which I have found to be correct. That distinguishes this case from the one in Chisnell where it is clear that the decision then arose from the exercise of discretion [19].
158. Given how I have thus far decided the issues before me, given that the impugned decision is correct in law, I am unable to find this failure to render the impugned decision irrational or Wednesbury unreasonable. The decision was one which was open to the respondent on the evidence before her and was in accordance with the law. The fact she did not address her previous inconsistent statements, which fall short of being ones which bind her, does not and cannot change that.
159. On the issue of discretion, the applicant further contends that the respondent was unreasonable or irrational in failing to exercise discretion to treat her as someone with section 3C leave in her decision of 30 August 2024. This forms part of Ground 3.
160. I did not understand Mr Biggs to take issue with the idea that the respondent has a discretion to act in that way. In fact, he expressly stated at one point that the respondent does have residual discretion to overlook certain factors or treat people in a certain way. That must be right.
161. I have considered what the respondent was being asked to do in the letter of 30 July 2024 (which was the correspondence giving rise to the impugned decision). The respondent was not expressly asked to treat the applicant as a person with unbroken leave (in the context of an acknowledgment that her leave had been broken). She was being asked to confirm that, as a matter of fact, the applicant had section 3C leave, which for the reasons given above, she did not. The respondent was therefore correct to say that she did not. There was nothing irrational or unreasonable about that.
162. I draw an analogy with what might be a situation the applicant encounters in the future if she needs to rely on a period of unbroken leave. If such a situation arises, then it would be open to the applicant to ask to be treated as someone with unbroken leave in the circumstances of her case. It would be incumbent then on the respondent to decide whether to exercise discretion to do so. If she decided not to, she would need to explain why not and that explanation would be subject to scrutiny on public law grounds.
163. Be that as it may, that is not what was asked of the respondent and, therefore, it was not a matter the respondent had to decide or explain.
164. Drawing this section together, I am satisfied that the answer to the second question is “yes”.
165. As both questions I posed at [116] above are answered in the affirmative, I find the respondent’s decision of 30 August 2024 was one which was rationally open to her on the evidence before her and not infected by an inconsistent history of decision making or any other public law error.
166. Furthermore, I am not persuaded that the respondent’s decision breaches the principles of legitimate expectation or an unreasonable or irrational failure to exercise of discretion.
167. For these reasons, all three grounds of challenge fail.
168. In any event, given how I have decided the interplay between paragraph 34G(4) of the Rules and section 3C of the 1971 Act, and by virtue of the operation of the law, the applicant did not make an immigration application within 10 working days of actual receipt of the decision dated 1 June 2023, so even if I am wrong about how ‘receipt’ in paragraph 34G(4) is defined, as a matter of law, she cannot benefit from 3C leave as her application would not be treated as having been made at the date of her fee waiver application.
169. The application for judicial review will therefore be dismissed. I invite counsel to agree the form of the order.
Postscript
170. This judgment was circulated in draft and typographical and formatting corrections were helpfully provided by both counsel.
171. The applicant sought permission to appeal on four grounds: (1) concerning my interpretation and application of section 3C of the 1971 Act with reference to a fee waiver and paragraph 34G(4) of the Rules; (2) the issue of the service of the fee waiver; (3) my decision that the impugned decision was not irrational, and (4) on the issue of discretion. The respondent opposes the application for permission.
172. I have considered the grounds but do not find them to reveal arguable errors of law in my decision. I find the grounds to amount to a disagreement with my decision or to be academic in light of the way in which I have, in fact, decided the claim. Furthermore as the application for permission to appeal does not set out the nature of the important legal issues which the applicant submits are raised by this claim, I am not satisfied permission should be granted on that basis either.
173. Mr Karim contended there should be no order for her to pay the respondent’s costs or that there should be a significant reduction in the applicant’s costs. He did so on the basis of five factors as set out in his submissions dated 13 November 2025. Mr Biggs’ submissions were that none of those factors justified departing from the usual position that the losing party pay the reasonable costs of the winning party.
174. The first two factors (i) and (ii) go to the merits of the case and have been dealt with in the substance of the decision in respect of which the applicant was the losing party. They do not found a basis to depart from the usual position on costs.
175. The remaining three (iii)-(v) go to aspects of the respondent’s conduct in the proceedings. The fact that a matter was not raised in the summary grounds of defence as contended at (iii) and (iv) does not justify departing from the usual position in light of the purpose of detailed grounds as set out in Rule 31(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008. Whilst I accept the skeleton argument was served late, I granted relief to the respondent to do so for the reasons set out at [38] above. Given that Mr Karim did not apply to adjourn and was ready to deal with the arguments contained therein and as I did not find them to depart from the detailed grounds of defence, I do not find this factor to justify departing from the usual position. Accordingly, I order the applicant to pay the respondent’s costs.
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