Escobar v Secretary of State for the Home Department [2024] EWHC 1097 (Admin) (10 May 2024)
Sheldon J held in this case that Mr Marco Antonio Escobar, a Bolivian national who had leave to remain in the UK on the basis of being married to a British national but subsequently separated from her, had not been unfairly refused re-entry to the UK where a notice of curtailment of his leave to remain had been emailed to him eight months earlier. He had not rebutted the presumption that that notice had been lawfully given. Mr Escobar applied for judicial review of the SSHD’s refusal to allow him to enter the UK and the decision to remove him from the country. He came to the UK in 2000 and obtained a student visa. In 2012, he married a British woman and was granted leave to remain as a spouse. In 2020, he applied for a renewal and provided his email address. He was granted limited leave to remain for 30 months, expiring in April 2023. A residence permit was issued which was valid until that date. The decision-maker informed him that a relationship breakdown or change in circumstances would require him to make a new application. He travelled to Bolivia in December 2022, returning to the UK in January 2023. He was refused entry on the basis that his leave to remain had been cancelled due to his spouse’s withdrawal of sponsorship. He told immigration officers that he had been separated from his wife for eight months but that he was provided no indication that his leave to remain had been cancelled. He was detained and removed to Bolivia.
The decision letter stated that a notice of curtailment of his leave to remain was sent to him by email in October 2022. That notice had stated that because he was not living with his spouse, he no longer met the requirements for a spouse visa and had until December 2022 to leave the UK or re-apply to stay. He accepted that the email had been sent to his email address but said that he had not seen it and that it was not in his inbox. He said that if he had seen it, he would have applied for leave to remain on a different basis and would not have gone to Bolivia until the matter had been settled. He also said that the only other person who had access to his email account was his wife, and that he suspected that she must have deleted the email before he saw it. Mr Escobar submitted that (i) the statutory presumption of service of the curtailment notice had been rebutted so that it had not been lawfully given, and the decision to refuse entry had been unlawful, (ii) if the presumption was not rebutted, given that he had been unaware of the contents of the notice, it had been unfair not to allow him to argue that he satisfied the 10-year or 20-year rule. But Sheldon J refused his application for judicial review—first addressing effective service and then fairness. As to effective service, he said that the Immigration (Leave to Enter and Remain) Order 2000 created a rebuttable presumption as to the giving of the notice and the timing of its receipt.
Effective service
The court followed R (Masud Alam) v SSHD [2020] EWCA Civ 1527 and said that where a method set out in article 8ZA of the 2000 Order was used, article 8ZB deemed notice to have been given on a specified day but the person affected could prove that they had not in fact been given notice. The court said that receipt would be effected by the arrival of an email in a person’s inbox, in the absence of positive evidence that it had been intercepted. The burden of rebutting the presumption would not be discharged by mere assertion that the notice had not come to the person’s attention. Mr Escobar’s counsel contended that the presumption of proper service of the notice of curtailment could be rebutted where the email had been intercepted by a third party such as Mr Escobar’s wife. In R (Masud Alam) a notice of curtailment had been sent by recorded delivery to the claimant’s last known address, which was shared accommodation, and it was suggested that the notice had been intercepted by a third party before the claimant had seen it.
In oral argument, Mr Escobar’s counsel seized on the highlighted words from paragraph 30 of the judgment in Masud Alam where Floyd LJ had recognised that the presumption of receipt could be rebutted where mail that arrived at the address of the applicant had been “intercepted”. He argued that the same could clearly apply to an email which had been intercepted before it was read by the applicant. However, Sheldon J held that:
27. In my judgment, there is no reason in principle why the two situations should be treated differently. The statutory language of the 2000 Order does not mandate that outcome. The 2000 Order deems that notice has been “given” when notice has been sent by email, and also when notice has been sent by mail, and contemplates that in both situations the presumption that notice has been given can be rebutted.
28. The 2000 Order does not state that once an email enters the applicant’s inbox it should be treated as if it has been “given” to the applicant with no possibility of rebuttal. It would have been possible for Parliament to have legislated for this. Indeed, where notice is “given by hand” there is no deeming provision, or possibility of rebuttal: see article 8ZA(2)(a). Parliament could have said the same for a notice entering an inbox but did not do so.
The court acknowledged that Floyd LJ said at paragraph 30 of Masud Alam that “Receipt of an email, for example, will be effected by the arrival of the email in the Inbox of the person affected”, thereby implying that there could be no possibility of rebuttal. But, this statement was clearly obiter as the case before the Court of Appeal was concerned with notice by mail, and Sheldon J said that it would be surprising if consideration was given by Floyd LJ to the possibility of interception of an email that had arrived in an inbox.
Sheldon J considered, therefore, that it is permissible on the facts of a particular case for an applicant to seek to persuade the SSHD, and subsequently the Court or tribunal, that the email was intercepted before it could be read. The burden of persuasion will be on the applicant, and the burden will not be lightly discharged. He stated he expected the SSHD (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 any convincing evidence. Sheldon J held as follows:
33. First, the Claimant has not expressly stated in his witness evidence that the notice of curtailment was never in his inbox. It is notable that in both of his witness statements, the Claimant uses the present tense: that the email was not in, or within, his inbox. The Claimant does not even say whether the notice of curtailment email was in his deleted items.
34. Second, although the Claimant puts forward as a possible explanation that his estranged spouse may have deleted the email, this is mere conjecture on his part. The Claimant could have sought to corroborate this speculation by, for instance, adducing evidence from a computer expert as to what had happened: it may well have been possible to interrogate the ‘meta data’ from the Claimant’s email account to explain what had happened to the email and when. There is no suggestion in the evidence that the Claimant sought expert advice, and he does not say that he lacked the financial means to ask an expert to do this.
35. Third, the Claimant seeks to rely on the inference that had he read the email he would have sought to regularise his immigration position in the United Kingdom through other means, and would not have taken a holiday to Bolivia until that had been sorted. I accept that that is a possible inference from the evidence, but it is not the only inference, and nor is it the obvious inference. It is possible that the Claimant did not read the email at all, or that he may have deleted it by mistake (if it was deleted). The Claimant does not give much evidence about his use of email other than to say that his estranged wife was quicker at checking emails than he was.
Therefore, the effective service ground of challenge failed. There was also the possibility that Mr Escobar did read the email but did not act on it. That may be because he thought the matter would not be picked up by the immigration authorities when he returned to the UK after his trip, as he may have thought that the bureaucracy of the Home Office would not figure things out or “join the dots together.”
Fairness
As to fairness, the court followed the authority of R (Anufrijeva) v SSHD [2004] 1 AC 604 where Lord Steyn had said that “In our system of law surprise is regarded as the enemy of justice. Fairness is the guiding principle of our law”. In light of Anufrijeva, Sheldon J held that an administrative decision could not have legal effect until it had been communicated to the individual in question. In Anufrijeva, Lord Steyn had endorsed the observations of the Court of Appeal that:
… once an asylum seeker knows that her application has been refused, and that she is not to be given leave to enter the country on any other basis, and has the reasons for those decisions, she can reasonably be expected to make a choice: either to accept the decision and leave or to stay and fight but without recourse to state benefits. But she cannot reasonably be expected to make that choice before she knows of the decisions and the reasons for them. There is nothing in the material before us to suggest that it is consistent with the declared purpose of the regulation to expect her to do so.
Sheldon J held that Anufrijeva was not concerned with a situation where notification had been provided but the individual had for whatever reason not read it. It was not authority for the proposition that a decision would have no effect where a person was unaware of it because he had been given it but had not read it. People who did not look at their emails could not effectively insulate themselves from being given notice and discretion could be exercised where exceptional compelling or compassionate circumstances existed but there was a public policy interest in ensuring that individuals read correspondence that was sent to them about their immigration status. There would need to be exceptional circumstances for the principles of fairness to demand that the claimant should have been provided with a further opportunity to make representations under the 10-year or 20-year rules, when the opportunity had already been provided via email.
Furthermore, Sheldon J decided that Mr Escobar’s circumstances were not exceptional, especially given that he was, or should have been, aware that once he split from his wife his immigration status was precarious and he had done nothing to address that situation.
Comment
This case is a reminder that those with a precarious immigration status need to address any issues in a timely and diligent manner. Equally, it is demonstrates that persons who hold spouse visas are at the mercy of the sponsor who can withdraw sponsorship during the probationary period of five years. To add insult to injury, the much coveted spouse visa can be curtailed just by an email but by contrast it can only be granted when highly stringent income and language conditions are met.
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