England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		9 December 2014

1. THE DEPUTY JUDGE: Hafiz Zubair is a national of Pakistan who first arrived in the United Kingdom in February 2007 to study as a student. He had leave to do so for the period to 30 November 2008. Within the currency of his existing grants of leave, he sought successive extensions to his permission to remain, the last of which was due to expire on 30 October 2014.
2. On 3 March 2014, the Secretary of State decided to curtail Mr Zubair's leave to remain as a Tier 4 (General) Student on the ground that, on 24 November 2012, the licence of his sponsor, E-College London, had been revoked. There is no dispute that she was entitled to do so pursuant to paragraph 323A(b)(i) of the Immigration Rules. That revocation took effect on 3 May 2013.
3. The notice curtailing Mr Zubair's leave was sent, so the Secretary of State asserts, by recorded delivery to the address which the claimant had provided when making a previous application for an extension of leave to remain (on this occasion as a Tier 2 student) on 11 February 2013. That address was 14 Thorpe Road, Barking, Essex, IG11 9XJ.
4. The official of the defendant's department responsible for sending that notice to that address was Ms Mangala Rajasigamany. In a witness statement, she confirms the note was sent to that address and that a Royal Mail tracking receipt was obtained for that delivery. That receipt was signed by someone by the name of "Ansari". In his witness statement, the claimant asserts: "I do not have a clue who Mr Ansari is."
5. On 12 June 2013 the claimant attended the defendant's Public Enquiry Office in Croydon and made an application for further leave to remain. He was informed that, because that application was not made within 28 days of the expiry of the previous leave, it would be refused. The claimant told the case worker at the Croydon office that he had not received the notice of curtailment.
6. On 26 June 2013 the claimant received by recorded delivery at his home address a copy of the curtailment notice.
7. As was observed by John Powell QC, sitting as a deputy High Court Judge, when he granted permission to apply for judicial review on 16 December 2013, this case raises a single short point: was the curtailment notice validly served on the claimant? In my judgment, if it was, there can be no complaints about the decision of 12 June to refuse leave to remain. If it was not, then the refusal of permission to remain is flawed. That much was common ground between Ms Patry, on behalf of the Secretary of State, and Ms Jones for the claimant when I heard argument this morning. I express my thanks to both counsel for the sensible and economic way in which they presented their respective cases.
8. In the light of the evidence of Ms Rajasigamany, the fact that the letter was addressed to the claimant at 14 Thorpe Road, Barking and that there is a signed Royal Mail "track and trace" receipt apparently relating to that letter, I find as a fact that the letter was sent to that address and receipt at that address was signed for.
9. The simple question is whether that is sufficient.
10. The letter of 4 March 2013, revoking the claimant's leave, refers to the revocation of E-College's sponsor licence and explains that, in consequence, the claimant has ceased to meet the requirements of the Immigration Rules under which leave was granted. In those circumstances, it is said, the Secretary of State varied the duration of the claimant's leave so that it expired on 3 May 2013. The letter made it clear that the claimant was not required immediately to leave the UK but would need to make arrangements to depart before 3 May 2013.
11. The letter purports to have been served in compliance with the Immigration (Notices) Regulation 2003. It is common ground that those regulations have no application to a decision to revoke leave in circumstances such as the present. The 2003 regulations make provision for service of notices of decisions against which the person concerned is entitled to appeal under section 82 of the Nationality, Immigration and Asylum Act 2002. As is common ground, the present decision was not appealable under section 82.
12. In order to be valid that letter needed to be provided to the claimant in accordance with section 4(1) of the Immigration Act 1971. That subsection provides:

i. "The power under this Act to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers, and the power to give leave to remain in the United Kingdom, or to vary any leave under section 3(3)(a) (whether as regards duration or conditions), shall be exercised by the Secretary of State; and, unless otherwise [allowed by or under] this Act, those powers shall be exercised by notice in writing given to the person affected ..."

13. The question therefore is whether sending a letter addressed to the claimant at his home address by recorded delivery is sufficient to comply with section 4(1) in circumstances where receipt of the letter is signed for by a person other than the addressee.
14. The claimant asserts that it is not sufficient. Ms Jones argues on his behalf that the letter was not signed for by the claimant, that the claimant had not authorised anyone else, in particular Mr Ansari, to accept correspondence on his behalf, and that the burden lies on the Secretary of State to prove that the letter was "given" to the claimant. She says that mere delivery to the claimant's home address does not establish that the letter was given to him.
15. The Secretary of State concedes that if leave was not validly curtailed then the decision under challenge refusing an extension of leave must be quashed. Absent valid curtailment of the previous leave this new application was bound to succeed. The only issue was whether he was an over-stayer and if leave was not curtailed, he would not have been an overstayer and his application for further leave would be bound to have succeeded.
16. The Secretary of State points out that the Immigration (Leave to Enter or Remain) Order 2000 was amended in 2013. The effect of that amendment was to add a paragraph 8Za to the rules which would have permitted service by post. But that amendment did not come into effect until 12 July 2013 and therefore, concedes the Secretary of State, was not relevant to the issues before me.
17. But, says Ms Patry, it would be absurd to construe section 4 as requiring the Secretary of State to do more than to send a recorded delivery letter to the address provided by the claimant. The Secretary of State cannot be expected, she says, to ensure that her officials personally serve letters of this sort on all applicants. She says that I ought to give section 4 a purposive construction which recognises the reality of the situation facing the Secretary of State. Ms Patry points out that when a college has its licence revoked, the Secretary of State needs to consider curtailing leave to enter of many, often hundreds, of students. Were personal service required in respect each of them that would be a very onerous obligation.
18. I have been referred to a number of authorities that are said to be relevant to this issue. Particular reliance is placed by the claimants on the decision of Upper Tribunal Judge Spencer in Syed [2013] UKUT 144 IAC That judgment does indeed contain a helpful analysis. I note in particular the judge's conclusions at paragraph 28:

i. "In the absence of an order made by statutory instrument under section 4(1) of the Immigration Act 1971 dealing with the giving of notice of variation of leave where there is no right of appeal, the Secretary of State has to be able to prove that notice of a decision varying leave to remain under section 3(3)(a) of the Immigration Act 1971 where there is no right of appeal was communicated to the person concerned for it to be effective. Where there is no 'immigration decision' the Immigration (Notices) Regulations 2003 do not apply. Communication would be effective if made to a person authorised to receive it on that person's behalf, see Hosier v Goodall [1962] 1 All E.R. 30, but the Secretary of State cannot rely upon deemed postal service."

19. The Secretary of State did not take issue with the decision in Syed but suggested it turned on the particular facts of that case, and in particular on the fact that the letter sent by recorded delivery on that occasion was returned twice.
20. I have also been referred to the decision of Mr Richard Clayton QC, sitting as a Deputy High Court Judge in Bhatti v SSHD [2014] EWHC 1487 (Admin). In that case a curtailment letter was sent to solicitors who had previously acted for the claimant. It turned on the fact that the solicitors were no longer carrying out business at that address. Mr Clayton found that in those circumstances the Secretary of State had failed to demonstrate actual receipt of the letter and accordingly found in favour of the claimant.
21. The Secretary of State showed me the decision of Upper Tribunal Judge Taylor in the case of Secretary of State v Mahendran, a determination promulgated on 25 July 2014. In that case the Secretary of State served the curtailment letter on the claimant's solicitors. The learned judge placed some reliance on the fact that the Secretary of State was acting in accordance with her own guidance as to the service of such curtailment notices. He observed at paragraph 30:

i. "The guidance does not impose on the Secretary of State any obligation to serve the claimant in person. She complied with it in serving the letter on the correspondence address given in the last application on file."

22. It seems to me that Mahendran turns on its own facts. For my part, and with respect to the learned Upper Tribunal Judge, I would not place any reliance in construing section 4 on the Secretary of State's internal guidance. The Secretary of State in this case did not seek to mount a case based on guidance. The case before me does not involve service of a curtailment letter on a solicitor and it is not necessary therefore for me to decide whether or not Judge Taylor was correct in the conclusion to which he came in that case.
23. As helpful as it is to see the discussion in these other cases, in my view the issue before me is one of statutory construction and the application of that construction to the particular facts of the case.
24. Section 4(1) of the 1971 Act obliges the Secretary of State to exercise the power to vary the grant of leave "by notice in writing given to the person affected". In my judgment that is an obligation of result not of intention. The Secretary of State, if she wishes to vary leave previously granted, has to ensure that the written notice is "given" to the person concerned. It may well be that she can achieve that by sending the letter to a solicitor or other person authorised by the individual concerned to receive such correspondence. It may well be she can rely on the recorded delivery service if she obtains the signature of the person concerned on the delivery receipt.
25. In my judgment however, merely to send a curtailment of leave letter to the person's address and rely on the receipt signed by another individual who happens to be present when the letter was delivered is manifestly insufficient. Such a letter is not "given" to the person concerned as required by the statute. The burden of proving receipt lies on the Secretary of State; it is not for the person concerned to disprove receipt.
26. In those circumstances it seems to me entirely unsurprising that the regulations have now been amended so as to permit reliance on postal service. However that does not avail the Secretary of State in this case.
27. I should add that I was not impressed by the argument that, were I to reject the Secretary of State's arguments in this respect, I would be "opening the floodgates" to many similar claims and would be requiring the Secretary of State to ensure personal service in every such case. It seems to me that where the curtailment letter was sent by recorded delivery and the Secretary of State can show that the receipt for that delivery was signed by the person concerned, perhaps by making comparison with the person's signature held on file by the Secretary of State, then the statutory requirement is likely to be met. In other words my analysis would add a single additional step to the tasks facing the official who decides whether or not to grant a subsequent application for leave to remain, namely of checking to see whether the receipt obtained when the recorded delivery letter was served was signed by the person concerned.
28. In any event, my judgment in this case is that the Secretary of State has not shown that the power to vary the claimant's leave to remain was exercised by notice in writing given to him. Accordingly, leave was not validly curtailed but subsisted and as a result the application for further leave to remain ought to have been granted. In those circumstances this application succeeds.

i. Yes Miss Jones?

29. MISS JONES: My Lord my instructing solicitor sent late yesterday a schedule of costs.
30. THE DEPUTY JUDGE: Yes.
31. MISS JONES: Was that received by the court?
32. THE DEPUTY JUDGE: It was.
33. MISS JONES: Was that received by Ms Patry? I have copies.
34. MISS PATRY: I am told that it was received but I have not seen it. I am so sorry, if you do have a spare copy I would be grateful. Thank you (Handed).
35. MISS JONES: In these circumstances we would seek to recover our costs of this application.
36. THE DEPUTY JUDGE: Yes. I have had a look at the summary assessment. I have been served with one on behalf of the Secretary of State in case she won and by you in case your client won.
37. MISS JONES: Yes.
38. THE DEPUTY JUDGE: I have to say I noted that the total claimed in the two is markedly different.
39. MISS JONES: I did as well my Lord. I did speak to my instructing solicitor and we are in your hands. I can explain to you each item in the schedule.
40. THE DEPUTY JUDGE: But on the other hand I notice it does not appear to include anything for you.
41. MISS JONES: That is the fixed costs at the end, the £700 fixed costs.
42. THE DEPUTY JUDGE: I do not see where that is, where is that?
43. MISS JONES: Bear with me, the very last page attendance at hearing fixed cost.
44. THE DEPUTY JUDGE: £700.
45. MISS JONES: Yes.
46. THE DEPUTY JUDGE: I see that, yes. So that is included in the subtotal and then in the total, is it?
47. MISS JONES: Yes.
48. THE DEPUTY JUDGE: Yes, well I will --
49. MISS JONES: My instructing solicitor does make the point that she has been incurring costs since the pre-action protocol letter and a period of some months, and the defendant has only been incurring costs for acknowledgement of service, the detailed grounds of defence and then for attendance of this hearing, there was no skeleton served on behalf of the defendant. I believe there was no responsive pre-action protocol letter so she says that that is the reason for the difference. But I will draw the court's attention to some things which the court may wish to comment on.
50. THE DEPUTY JUDGE: Yes.
51. MISS JONES: Personal attendances on opponents on the second page, that is for delivery of the witness statement and of the bundle. Similarly, the attendance --
52. THE DEPUTY JUDGE: In what figure is that?
53. MISS JONES: That is "personal attendance on appellants including negotiations, personal attendance A and B."
54. THE DEPUTY JUDGE: Yes, £520 and £160.
55. MISS JONES: Yes. Then further the -- I believe it is attendance at hearing. So £700 is counsel's attendance and drafting of the skeleton argument but the 200 is I understand for delivery of the bundle in person to the court.
56. THE DEPUTY JUDGE: That does sound extremely large amount for a delivery job.
57. MISS JONES: My Lord, I am in your hands on that point.
58. THE DEPUTY JUDGE: Yes.
59. MISS JONES: But apart from that the attendances on our client obviously my own costs I will stand firm upon.
60. THE DEPUTY JUDGE: Yes. Let me hear Ms Patry.
61. MISS PATRY: Obviously my Lord we do not resist the principle of paying costs. I apologise; I had not been given a copy of this until right now. My only query was really about two hours of solicitor's time attending the hearing. There was no solicitor present here. I understand that means two hours serving which bundle?
62. MISS JONES: It is serving -- well filing the bundle -- the permission bundle, I believe, at that time.
63. THE DEPUTY JUDGE: The gentleman sitting behind you was not your solicitor.
64. MISS JONES: That was my client, my Lord.
65. THE DEPUTY JUDGE: Yes. Ms Patry do you have anything else to say?
66. MISS PATRY: I would never dream of commenting on counsel's costs so on that basis --
67. THE DEPUTY JUDGE: You have no justification, they are entirely reasonable.
68. MISS PATRY: So I do not have anything else to add. Thank you.
69. THE DEPUTY JUDGE: There is no reason why the usual rule of costs following the event should not apply in this case and I therefore order the payment of the claimant's costs by the Secretary of State. I am asked to assess them summarily and I do so in the light of the submissions I have heard. It does seem to me there are one or two items of time expenditure that are excessive, particularly the time taken to deliver various bundles to various places. Accordingly I shall assess costs summarily in the sum of £4,500 (inclusive of VAT).
70. MISS JONES: Thank you, my Lord.
71. THE DEPUTY JUDGE: Is there anything else?
72. MISS PATRY: Yes. In order to preserve the position I am going to ask for permission to appeal at this stage. This is obviously a matter -- I understand what your Lordship has said obviously and I understand particularly what you have said about the argument about floodgates of course but the Secretary of State does have a real concern here about the fact that there may be a very large number of cases out there which are not yet apparent to the Secretary of State because someone may well argue -- someone who thinks they currently have extant leave and who has not yet made an application may only become aware leave was curtailed some time ago at some point in the future so these cases are not days, they are still outstanding. So the Secretary of State has a general concern that --
73. THE DEPUTY JUDGE: On what ground are you seeking leave?
74. MISS PATRY: On the basis that there is an issue of wider public importance but also on the basis really that we have reasonable prospect of success. Ultimately the central ground on which the Secretary of State will seek permission is that this is a case where there are potentially a large number of cases affected by this judgment. In order to preserve the position at the stage. The Secretary of State has not made a decision whether to appeal but I would ask for permission to appeal.
75. THE DEPUTY JUDGE: Thank you. No, on neither of the two grounds am I prepared to give permission to appeal. You can ask the Court of Appeal for that.
76. MISS PATRY: I am very grateful.
77. THE DEPUTY JUDGE: Thank you both very much for your help.
78. MISS PATRY: In the light of the fact that Christmas is approaching it may be sensible for me to ask for an extension to the usual time limit.
79. THE DEPUTY JUDGE: You usually have how long?
80. MISS PATRY: We normally have 21 days.
81. THE DEPUTY JUDGE: Yes.
82. MISS PATRY: So 21 days from today would take us --
83. THE DEPUTY JUDGE: To the 30th.
84. MISS PATRY: Right over the Christmas period.
85. THE DEPUTY JUDGE: Unless you have something to do on New Year's Eve --
86. MISS PATRY: That is true. Grateful. I would ask for a short extension of time to allow us not to fall on the 30th --
87. THE DEPUTY JUDGE: You can have until 10 January.
88. MISS PATRY: I am grateful.
89. THE DEPUTY JUDGE: Thank you both for your help.