“Decision” Exists Only on Service: JR Time Runs from Giving of s.4 Notice; Email Service Presumption May Be Rebutted on Evidence

Case: Dhandapani, R (On the Application Of) v Secretary of State for the Home Department [2025] EWCA Civ 1244 (CA, 7 October 2025)

Court: Court of Appeal (Civil Division) — Lord Justice Baker (lead), Lord Justice Peter Jackson, Lord Justice Bean

Introduction

This Court of Appeal decision addresses two recurring issues in immigration judicial review litigation: (1) when time begins to run for bringing a judicial review in the Upper Tribunal against a curtailment/cancellation decision made under section 4(1) of the Immigration Act 1971; and (2) what evidential showing is needed at the permission stage to put in issue the “deemed receipt” of an email notice under Articles 8ZA–8ZB of the Immigration (Leave to Enter and Remain) Order 2000 (the 2000 Order).

The appellant, an Indian student, denied receiving the Home Office email which curtailed his leave. The Upper Tribunal refused permission both for delay (on the footing that time ran from the date of the internal decision) and on the merits (treating his case as a mere assertion of non-receipt). The Court of Appeal allowed the appeal, granting permission to bring the judicial review and clarifying key principles about “giving” notice and limitation.

Summary of the Judgment

• Time runs from service: For curtailment decisions under s.4(1) of the 1971 Act, there is “legally no decision” until notice in writing is given to the person affected. Accordingly, the three‑month JR time limit in rule 28(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (UTPR) runs from the date of service of the notice, not the date of any internal decision (paras 58–59).
• Permission threshold met on evidence: Applying R (Alam; Rana) v SSHD [2020] EWCA Civ 1527, the Court held the appellant’s case went beyond a bare denial and, taken at its highest, could succeed at a contested hearing. Three features were pivotal: (i) a pre‑action letter before claim actively asking for service of a curtailment notice; (ii) the inherent improbability that a person wishing to remain would ignore a curtailment notice; and (iii) the absence of any record of an email delivery receipt request/response on the Home Office system (paras 51–54).
• Email interception left open: The Court declined to opine on whether an email that has reached the inbox can nevertheless be “intercepted” so as to displace deemed receipt (a question canvassed in R (Escobar) v SSHD [2024] EWHC 1097 (Admin)) (para 56).
• Fresh evidence: Additional witness statements sought to be relied on in the Court of Appeal were read de bene esse but were not needed; they did not meet the Ladd v Marshall test and added little (para 30).
• Extension of time to appeal: Given the merits, the Court granted a one‑day extension for the appellant’s notice to the Court of Appeal (para 59).

Disposition: Appeal allowed; permission to bring judicial review granted; case remitted to the Upper Tribunal for determination (para 60).

Background and Procedural History

• The appellant entered the UK as a student (Dec 2021 to Aug 2023). His sponsor withdrew in July 2022. The Home Office sent a curtailment email on 23 March 2023, bringing his leave to an end in May 2023. He says he never received that email (paras 11–17).
• Through solicitors he sent a pre‑action letter (24 June 2023) asking the Home Office to “serve a curtailment notice” within 14 days so he could switch sponsor (para 15). The Home Office replied that notice had already been emailed and was “deemed received” (paras 16–17).
• Judicial review was issued on 4 September 2023. The UT refused permission on the papers and again at an oral renewal, holding: (a) time runs from the date of decision, not receipt; (b) the appellant’s non‑receipt case was a bare assertion; (c) the guidance about delivery receipts was not legally material and, even if it were, there was no breach (para 22).
• The appellant appealed to the Court of Appeal. The Court indicated that the merits issue on service should be the focus. A one‑day delay in filing the appeal and fresh evidence issues were not pressed (paras 29–31).

Statutory and Regulatory Framework

• Immigration Act 1971:
  • s.3: power to give or vary limited leave (para 2).
  • s.4(1): power to give, refuse or vary leave “shall be exercised by notice in writing given to the person affected” (para 3).
• 2000 Order (SI 2000/1161), Arts 8ZA–8ZB:
  • Art 8ZA: sets out valid methods of giving notice (hand, post, email, etc.); allows “deeming” when attempts are not possible or fail and notice is placed on file (paras 4).
  • Art 8ZB: creates rebuttable presumptions of receipt when notice is sent by methods in Art 8ZA, with timing rules (para 5).
• UTPR r.28(2): JR application must be made promptly and in any event within 3 months of the “decision, action or omission” (para 10).
• Home Office Guidance: “Cancellation and Curtailment of permission” (version 2.0) encourages service by email and recording of delivery receipts if received; internal guidance, not legally binding (para 9).

Issues on Appeal

1. Was the UT wrong to hold that time for JR runs from the date of the internal decision rather than service of notice? (Ground 1)
2. Was the UT wrong to refuse permission on the basis that the appellant’s non‑receipt case was a mere assertion and not arguably capable of rebutting the presumption of service by email? (Ground 2)

Detailed Analysis

Precedents Cited and How They Shaped the Outcome

• R (Alam; Rana) v SSHD [2020] EWCA Civ 1527:
  • Art 8ZB creates a rebuttable presumption of valid notice if a method in Art 8ZA is used (para 6).
  • “Giving” equals “receipt” of the notice; the recipient need not read or be aware of it (paras 7–8; 29–31).
  • At permission stage, claimant must show a factual case which, taken at its highest, could succeed at a contested hearing; mere assertion is insufficient; burden is weighty (paras 31–33).
• UKI (Kingsway) Ltd v Westminster CC [2018] UKSC 67; and Sun Alliance v Hayman [1975] 1 WLR 177:
  • “Giving a notice” ordinarily means causing it to be received, unless the statutory context provides otherwise (para 8).
• SSHD v Ahmadi [2013] EWCA Civ 512; Mehmood v SSHD [2015] EWCA Civ 744:
  • Under s.4(1), the power is exercised by giving notice in writing; there is no legally effective decision until the notice is given (para 32). This was foundational to the Court’s conclusion on the limitation point.
• R (Kalsi) v SSHD [2021] EWCA Civ 184:
  • Service provisions (in the Rules) analogous to Arts 8ZA–8ZB: proper postal service normally proves “giving”, but that assumption can be displaced by evidence that the decision was not, in fact, given to the applicant (para 34). This reinforced the availability of rebuttal on evidence.
• R (Escobar) v SSHD [2024] EWHC 1097 (Admin):
  • Sheldon J treated, on the facts there, the “arrival in inbox” point in Alam as not foreclosing the possibility of interception before the email was read, though the claimant did not come close to rebuttal. The Court of Appeal in Dhandapani expressly left that question open for a suitable future case (para 56).
• R v Department of Transport, ex p Presvac Engineering [1992] 4 Admin LR 121; R (Housing CIC) v Regulator of Social Housing [2020] EWHC 346 (Admin):
  • These Administrative Court authorities were invoked by the SSHD to suggest time runs from the date of the decision. The Court distinguished them because, in the s.4(1) context, “decision” only comes into legal existence upon service (para 58).
• Ladd v Marshall [1954] 1 WLR 1489:
  • Fresh evidence on appeal test; the additional statements were not admitted as they did not satisfy the criteria and added little (para 30).

Legal Reasoning

1. What amounts to “giving” under s.4(1)?
   • Section 4(1) makes service constitutive of the decision: the power “shall be exercised by notice in writing given to the person affected.” As in Ahmadi and Mehmood, the notice is not a subsequent administrative step; it is the act by which the decision is made. There is thus no legally effective curtailment until service (paras 32, 58).
   • Articles 8ZA–8ZB provide methods of giving and presumptions about receipt, but they operate against the backdrop that “giving” means “receipt” (per UKI/Sun Alliance and Alam) (paras 6–8, 29–31).
2. Permission-stage test under Alam:
   • When a permissible method is used, a rebuttable presumption arises. The claimant must present a factual case which, taken at its highest, could succeed at a contested hearing (paras 31–33).
   • Mere assertion that the notice didn’t come to the claimant’s attention is insufficient; the focus is on whether it was received (para 31).
3. Applying that test to the evidence here:
   • The appellant’s position was supported by contemporaneous conduct (the 24 June 2023 pre‑action letter requesting service), by rationality (it would be counter‑productive to ignore a curtailment notice), and by the absence of any recorded delivery receipt request/response. These features together exceeded a bare denial and warranted permission (paras 51–54).
   • The Court emphasized that each case is fact‑specific; comparisons with other reported cases are neither helpful nor wise (para 55).
4. Limitation: when does time run under UTPR r.28(2)?
   • Given that a s.4(1) curtailment decision exists only upon service, the “date of the decision” in r.28(2) is the date of giving notice. The UT’s approach—counting from the internal decision—was wrong in principle (para 58).
   • The SSHD’s proposed distinction between a “factual” decision and a “legally valid” decision was rejected as sophistic: before notice is given, there is “simply no decision at all” (para 58).
5. Open issue—email interception after arrival in inbox:
   • The Court declined to decide whether post‑inbox interception can displace deemed receipt (para 56). The point remains available for argument in a case where it is squarely raised on the facts.

Impact and Practical Implications

1) For the Home Office and Caseworkers

• Record‑keeping matters: Although the internal Guidance is not legally binding, the absence of a recorded delivery receipt request/response can be evidentially relevant and may assist a claimant to clear the permission threshold.
• Service discipline: Where email is used, consider robust service practices (requesting delivery/read receipts where feasible, retaining server logs, and ensuring systems allow recording of requests, not just responses). These steps will fortify the presumption of receipt.
• Limitation expectations: For s.4 decisions, JR time runs from service. Delay arguments should be calibrated to the service date, not internal casework milestones.

2) For Claimants and Practitioners

• Permission-stage evidence: To rebut the presumption of email service (or to show a triable case), go beyond bare denial—use contemporaneous correspondence (e.g., pre‑action letters requesting service), behavioural rationality, third‑party corroboration, and any metadata or email account logs available.
• Limitation strategy: In s.4 curtailment/cancellation cases, compute the three‑month period from service of the notice. If notice emerges belatedly (e.g., via correspondence with the Home Office), that date is legally critical.
• Non‑appealable decisions: Curtailments are JR‑only. Early engagement and clear evidence on service can prevent adverse “delay” rulings.

3) For the Upper Tribunal

• Permission gatekeeping: Apply the Alam standard; assess whether the claimant’s material, taken at its highest, could succeed in contested fact‑finding. Resist treating plausible contemporaneous indicators as “mere assertion.”
• Limitation computation: In s.4 notice cases, treat the “date of the decision” for UTPR r.28(2) as the date of service of the written notice.

Complex Concepts Simplified

• “Giving” notice (s.4(1)): The decision is legally made by serving written notice on the person affected. No service, no decision.
• Rebuttable presumption of receipt (Arts 8ZA–8ZB): If the Home Office uses an approved method (e.g., email), the law presumes the notice was given on a specified date—unless the person proves otherwise.
• Permission stage vs trial: At permission, the claimant must show a realistic, triable case (not just a mere assertion). At trial, the issue is decided on evidence, usually on the balance of probabilities.
• “Non‑appealable” curtailment: There is no statutory right of appeal; the decision can only be challenged by judicial review.
• UTPR r.28(2) time limit: Applications must be made promptly and within three months of the “decision.” In s.4 notice cases, “decision” means the date of service, not the internal decision date.

Key Takeaways

• New/clarified rule on time: In s.4 Immigration Act 1971 curtailment/cancellation cases, the JR time limit runs from the service of written notice, because no legally effective decision exists until notice is given.
• Evidence to cross the permission threshold: A credible non‑receipt case is not limited to technical email evidence. Contemporaneous conduct (such as asking the Home Office to serve the notice), rational inferences, and service records (or their gaps) can be enough to obtain permission.
• Guidance as evidence: The Home Office’s internal guidance is not binding, but compliance or non‑compliance may have evidential weight on the service issue.
• Interception question remains open: Whether post‑inbox interference can negate “receipt” awaits a case where the point arises squarely on the facts.
• Each case is fact‑specific: Courts will avoid mechanistic comparisons with other cases; the focus is on the specific evidence and context presented.

Conclusion

Dhandapani provides important clarification at the intersection of immigration administrative law and procedural time limits. Reaffirming that a curtailment decision under s.4(1) of the 1971 Act is made by giving written notice, the Court of Appeal holds that the three‑month time limit for Upper Tribunal judicial review runs from the date of service—not from an internal administrative act. On the service question, the Court robustly applies Alam’s permission-stage framework while giving practical guidance on what constitutes “more than a mere assertion.” The judgment preserves doctrinal coherence with Ahmadi and Mehmood, aligns the UTPR with the statutory architecture of s.4, and leaves open (for a future case) the finer point about email interception post‑inbox. For both the Home Office and practitioners, the decision underscores the centrality of reliable service practices and well‑marshalled evidence in curtailment litigation.