Curtailment: Pakistani Wins Judicial Review Case

Javed Miandad R (Javed) v Secretary of State for the Home Department [2014] EWHC 4426 (Admin) (09 December 2014)

In the case of Hafiz Muhammad Zubair Javed, which raised a single point about a curtailment notice’s validity, Neil Garnham QC held that the Home Office could not rely on a third party’s signature to argue that a letter of curtailment was effectively delivered to its intended recipient. In doing so, the court held that the mere delivery of the letter to Javed’s home address was insufficient to establish that the letter was really given to him. Javed, a Pakistani, entered the UK in 2007 as a student and his leave was renewed from time to time. His leave was curtailed because the Home Office revoked his college’s sponsorship licence and the curtailment notice was sent to his last known address.

Javed made an application for further leave to remain in the Public Enquiry Office (PEO) which was refused because it was not made within 28 days of the expiry of his last grant of leave but Javed claimed not to have received the notice of curtailment. He said that he did not know the person, a “Mr Ansari”, who signed for the notice. For the court, if the notice of curtailment was served properly then the refusal of Javed’s application for leave to remain in the PEO was justified. Otherwise it was not justified and the refusal of leave to remain was flawed. According to the caseworker’s evidence, which the court accepted as factually correct, the notice of curtailment was sent to Javed’s last known address at 14 Thorpe Road, Barking and had been signed for but the question for Neil Garnham QC was whether that was sufficient? The effect of the curtailment on Javed’s original leave was to vary (reduce) its validity and he was not expected to leave the immediately.

It was common ground that the Immigration (Notices) Regulation 2003 did not have application to Javed’s case and that the decision in his case was not appealable under section 82 of the Nationality, Immigration and Asylum Act 2002. The court explained at para 12 that for the notice to be valid in the instant case, the Home Office needed to provide it to Javed in line with section 4(1) of the Immigration Act 1971 whereby the person affected shall be given notice in writing.

Javed contended that that was not sufficient to send a letter addressed to him at his home address by recorded delivery and argue compliance with section 4(1) in a case like his where the actual receipt of the letter was signed for by a person, i.e. Mr Ansari, other than the addressee. He had not allowed a third-party to receive the letter on his behalf. It was up to the Home Office to prove that Javed was “given” the letter and that the mere delivery of the letter to his home address was not the same thing as the letter being given to him. It was common ground that Javed’s most recent application for leave to remain would have been successful but for the purported curtailment which rendered him an overstayer and the Home Office conceded that if Javed’s leave was not validly curtailed then the decision to refuse his application in the PEO needed to be quashed.

The Immigration (Leave to Enter or Remain) Order 2000 was amended in 2013, paragraph 8Za was added to permit service by post but this did not help the Home Office and it conceded that amendment did not impact Javed’s case. On the other hand, it was argued by the Home Office that it was absurd to construe section 4 as imposing a duty to personally serve such decisions because hundreds of them needed to be sent. Therefore, a purposive construction was preferred by the authorities which thought that personal service in every case was too demanding.

The court found Syed (curtailment of leave – notice) [2013] UKUT 144 IAC to be useful – a case in which Spencer UTJ applied Hosier v Goodall [1962] 1 All E.R. 30 held that communication would be effective if made to a person authorised to receive it on that person’s behalf – and the Home Office did not take issue with that authority but sought to distinguish it on the basis that the notice in that case was returned twice when sent by recorded delivery. Attention was also drawn to Bhatti [2014] EWHC 1487 (Admin) where it was held that the Home Office had failed to demonstrate the actual receipt of a curtailment letter by sending it solicitors, no longer carrying out business at their address, who had previously acted for the claimant.

The deputy judge, Neil Garnham QC, rejected the Home Office’s submission mounted on the basis UTJ Taylor’s analysis in Mahendran [2014] UKAIRUR IA457382013 where he found that the guidance on service of curtailment notices did not require personal service and that serving the letter on the correspondence address given in the last application on file would suffice. The court held that Mahendran turned on its own facts and, noting the Home Office did not argue its case on the basis of the guidance and that the curtailment notice was not served on a solicitor in Javed’s case, Neil Garnham QC was therefore suspicious of using the guidance as an aide to construe section 4 of the Immigration Act 1971. The court was clear that it did not need to decide the correctness of UTJ Taylor’s analysis because the issue related to “statutory construction and the application of that construction to the particular facts of the case”: para 23.

The court held that section 4(1) placed on the Home Office an obligation to exercise the power to vary the grant of leave “by notice in writing given to the person affected” and this was an:

Obligation of result not of intention.

So it was crucial for the Home Office to give written notice to the person whose previously granted leave was being varied. This could be achieved by sending the notice to a solicitor or other person who had been authorised by the addressee to receive this correspondence in question. Equally, it was possible for the authorities to rely on recorded delivery if the signature of the person concerned was evidenced on the delivery receipt. The court, however, held at para 25 that:

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.

In the present case, the Home Office was not assisted by the amendment of the regulations to allow postal service and the court was unimpressed by the submission that rejecting the government’s arguments would result in the floodgates being opened. Rather, the court was of the view that its analysis would add a further single step. The official deciding whether or not to grant the later, i.e. post-curtailment, application for leave to remain could quite easily check the signature of the applicant against the signature on the recorded delivery. To discharge the statutory requirement, the Home Office could confirm the signature of the recipient of the curtailment letter against the signature of the applicant held on file.

Neil Garnham QC therefore held at para 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.

Comment

Some years ago, Mr SA, a Pakistani Punjabi in Manchester who had been in the UK for a long time, had his leave to remain as a spouse curtailed because his wife complained about him to the Home Office. He had a valid Tier 2 visa and worked as an accountant. But he made the mistake of reapplying and remaining as a spouse. The curtailment notice was served at his last known address. He and his British wife separated and when he applied for settlement on the basis of ten years’ residence in the UK he discovered that his leave had been curtailed. He was then serially ripped off by several solicitors in Manchester and bullied by his employers.

SA was referred by a friend who emphasised “we must help him, he’s signing weekly at Dallas Court and they are telling him that they will make a decision to remove him and that he should leave voluntarily”. Unlike Javed, SA’s case turned on the Immigration (Notices) Regulation 2003. Because the curtailment notice was not served properly, SA had a right of appeal to the tribunal. Threats of judicial review culminated in SA being granted discretionary leave and when a claim form was filed, the Home Office wanted the claim withdrawn and granted him ILR. He then got a British passport and the first thing he did was to return to Pakistan (for good).

Mr YG, a Gujarati Indian studying in Leicester also had a similar problem. An in-time application for leave to remain was made for him as he planned to marry. His school had lost its sponsorship licence but the Home Office never got around to communicating the curtailment of his leave to him, the letter was produced but not posted. But his fiancée’s solicitors were eager to have his immigration case, but were unaware that the marriage registrar would accept a certified copy from the Home Office, and they convinced him that he should have his passport returned to him so that he could get married. As his was an application under the rules, the return of the passport meant that his application was refused automatically. He reapplied through his wife’s solicitors but was refused leave to remain and was made to sign monthly in Croydon.

A conservative young man, one day YG fell out with his wife. She was sleeping on the floor and while trying to lift her up to put her on the bed he ended up hitting her head against the radiator. She left the house (which was near Wimbledon) and he went out looking for her. He went to the police station and learned that she had complained about him. The police found £2,500 cash on him, money he had earned by working in a textile factory. The cash was detained and the police linked it to drugs despite no drugs having been found on YG or at his residence.

His in laws were furious with him and started to treat him like a slave. YG got in touch and said he did not have any money to eat: his friend AP called and said that she was worried about him. Eventually, the officer detaining the cash was contacted and told that YG had always had statutory leave to remain and that notice to curtail leave had not been served in accordance with the law. The policeman, one Mr Galloway, was initially unsympathetic but when the Home Office could not demonstrate that YG was notified of the curtailment decision he very reasonably released the cash. The first thing YG did was to return to India so that he could meet his parents after 5 long years in the UK.

About mkp

Advocate High Courts of Pakistan
This entry was posted in Cases, Immigration Rules, Judicial Review, Notices, Pakistan, PBS and tagged . Bookmark the permalink.

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