What happens when someone doesn’t receive a decision sent to them by the Home Office that affects their right to continue living in the UK?
The answer to this question depends on what attempts were made to send the decision to the person and whether this constituted “deemed service”.
Deemed service is a term most lawyers will be familiar with. For those who are not lawyers, service is essentially just formal delivery of a document.
The rules on service – whether of court documents, contractual notices, immigration decisions, or other important documents – are designed to ensure that anyone who will be affected by the document receives it and is aware of its contents.
Deemed service is when the law assumes the person affected has received the document, even when in reality they may be completely unaware of its existence. This is generally only permitted in limited circumstances.
Mr Rahman’s letter
This relatively opaque corner of immigration law was recently considered by the High Court in Rahman v Secretary of State for the Home Department.
The Home Office had sent a curtailment letter cancelling Mr Rahman’s student visa to an old address. Mr Rahman had not told the department his new address (although he had told his college and believed it would update the Home Office). He did not receive the letter.
It was returned to the Home Office by Royal Mail marked “returned – moved – this person not living here anymore”. The Home Office made no second attempt to deliver the letter, deeming it to be served as it had been sent to the last known address.
The law on service of immigration decisions
The law requires immigration decisions to be “given to the person affected”. If this requirement is not complied with, the decision has no effect (see R (Anufrijeva) v SSHD at paragraphs 26 and 30)
A decision will usually be deemed to have been given to a person (i.e. served) if the Home Office has followed the correct process as outlined in the relevant legislation, unless the contrary is proved.
Once the Home Office has shown that it complied, for instance by posting the decision to the applicant’s correspondence address by recorded delivery, the burden of proof shifts from the Home Office to the applicant to prove that the decision was not “given” to them.
As explained by the court in Rahman:
By reversing the burden of proof those persons who act in bad faith are prevented from abusing the system and putting the Secretary of State to additional and unnecessary work. However, those who act in good faith are not thereby disadvantaged because they are afforded the opportunity to prove that they were not given, and therefore unable to take necessary action upon, the decision.
Proving non-service: Mahmood overturned
In the Upper Tribunal case of Mahmood the tribunal had decided that a decision can be “given” simply by being sent and that there is no requirement that the person has actual knowledge of the decision or its contents. In Rahman the High Court disagreed:
In ordinary course, the Secretary of State is, therefore, entitled to presume that, provided the notice is given in accordance with article 8ZA, the notice has been given to the person affected and it can be presumed that the recipient thereby becomes aware of the contents. That is the case for good policy reasons. However, the presumption that it was ‘given’ can be rebutted if the contrary is proved. In my view proving the contrary is not limited to proving that the notice was not sent to the address provided for correspondence.
His Honour Judge Blackett, sitting as a deputy High Court judge, went on:
In my view ‘proving to the contrary’ means that, where the person has not acted in bad faith (that is for example by moving address to avert detection and deliberately not informing the Home Office), demonstrating that he was not given, in the sense of being made aware of the notice, would be sufficient to prove the contrary. As the whole purpose of section 4 of the Immigration Act 1971 is to ensure that a person affected must be told the decision so that he or she may be able to act upon it, such a narrow interpretation would frustrate that purpose. In that respect the interpretation of ‘given’ in Mahmood is too narrow.
So if you can show that you acted in good faith throughout and did not receive the decision, this will be enough.
Acting in good faith
In this case, Mr Rahman successfully discharged the burden of proving that he was not “given” the decision and that it was therefore of no effect.
The Home Office had not complied with its own guidance on curtailment. The guidance requires a second attempt to be made to deliver the letter (see page 74). Indeed, the department often fails to follow the correct process for service, for instance by sending letters by ordinary second class post rather than by recorded delivery. This may be cheaper; but for deemed service to apply, it needs to be sent by recorded delivery: article 8ZB(a)9i) of the Immigration (Leave to Enter and Remain) (Amendment) Order 2013.
In contrast, Mr Rahman had acted in good faith at all times. He had informed his sponsor of his change of address and approached the Home Office, without undue delay, when he had not received a curtailment notice (providing up-to-date email and postal addresses at this point).
The concept of acting in “good faith” is a prominent feature of the judgment. Someone who did not do all they could to get clarification of their status may not have been treated so favourably. Someone who attempts to evade detection certainly wouldn’t be. Keeping the Home Office up to date and informed is important.
The Home Office often sends letters to old addresses. But if you have not told them your new address, the department cannot really be blamed. There is no obligation to notify the Home Office of a change of address. However, to ensure you can show that you have acted in “good faith”, it is generally worthwhile informing the Home Office of any change, even when you do not have a pending application. It can be done using this form on the gov.uk website.