24 Oct 2016, 58 mins ago

In the recent case of Mahmood, R (on the application of) v Secretary of State for the Home Department (effective service – 2000 Order) (IJR)[2016] UKUT 57 (IAC), the Upper Tribunal held that sending a non-appealable decision to an email address constitutes effective service, subject to rebuttal.

The case concerned the immigration status of a Pakistani national (‘the applicant’) in the UK. The applicant challenged the Secretary of State’s refusal of his application for further leave to remain as the spouse of a British Citizen under Appendix FM of the Immigration Rules. 

The Secretary of State’s refusal was based on the fact that the applicant had overstayed his previous leave by more than 28 days at the time he made the application, and he could not therefore meet the requirements of the Immigration Rules.  The SSHD alleged that the applicant was an overstayer because she had curtailed his previous leave as a Tier 4 (General) Student by a decision served by email some four months before the application for further leave was made. That decision, in the form of a curtailment notice, was sent to the applicant as an email attachment. The email attachment was sent to the applicant’s email address as stated on his online visa application form. 

The applicant sought to challenge the decision of the Secretary of State on the grounds that the notice of the curtailment decision had not been “sent” to him as required by the Immigration (Leave to Enter and Remain) Order 2000 and/or had not been properly “given” to him as required by s.4(1) of the Immigration Act 1971. The applicant claimed not to have received the email attaching the decision.  

The applicant first argued that the SSHD had failed to discharge the burden upon her under the Order of establishing that the decision had been sent to him.  He argued that the SSHD’s General Cases Information Database (“GCID”) Case Record Sheet, which stated the time that the decision had been emailed, was insufficient to discharge this burden, and that there should have been a witness statement from the responsible officer.  However, the Tribunal rejected this argument, finding that the GCID was “persuasive and sound evidence” to conclude that the decision was sent as an attachment to an email sent to the applicant at the date and time claimed.

The applicant argued in the alternative that even if the email had been “sent”, then he had rebutted the presumption that notice had been “given” by email as he had not received it.  Although the applicant had included the email address in his application form, it was his agent that had given this email address and the applicant had no access to that email account as he was unaware of the password. 

After considering the statute, rules and case law, the Tribunal concluded that to have legal effect, notice of a decision must be given to the individual concerned. The notice will be ‘given’ on the day it is sent and is delivered to the individual’s email address. Actual knowledge of the individual is not required; the individual must merely have an ‘opportunity’ to know that a decision has been made. It may come as a surprise that the nature of rebuttal was not discussed in great detail. What the Upper Tribunal did say, however, was that the individual could rebut both the time and fact of ‘delivery’ or ‘receipt’ of a notice. 

This decision becomes an interesting one when considering the case of junk mail. The outcome of this case may suggest that if an email containing a decision automatically goes into the individual’s junk folder, that individual has arguably had the ‘opportunity’ to know about the decision, despite having no actual knowledge that they had received the email. The Upper Tribunal would have to make the presumption that everyone should be checking his or her junk folders, and therefore any emails sent should be seen by the individual. This point was not however, explicitly discussed in this case.

The decision is particularly onerous because the applicant arguably had no reason to expect an email from the Home Office.  His leave was curtailed several months before it was due to expire due to the revocation of his college’s sponsor licence.  This was not therefore a case in which the applicant was awaiting an immigration decision.  Moreover, the email address he provided appears to have been given for the purposes of his entry clearance application, ie it was the email address of the agent he had used when he was outside the UK.  

In the light of this decision, applicants ought to ensure that the Home Office holds the correct email address on their records – this may require informing the Home Office of a change of email address once entry clearance has been obtained – and that they fully check their email account on a regular basis thereafter.