Anonymised and Structured Summary of the Opinion

Factual and Procedural Background

The Appellant is an Indian national who arrived in the United Kingdom on 23 December 2021 with student leave valid to 18 August 2023. The Appellant's sponsor, The University, informed the Secretary of State (hereinafter "Company A") on 18 July 2022 that the Appellant was no longer sponsored and had stopped studying. On 23 March 2023 Company A sent an email to an email address provided by the Appellant which attached a notice curtailing the Appellant's leave so that it would end on 22/23 May 2023 and stating that the decision was non‑appealable (subject to error correction guidance).

The Appellant maintained that he never received the email. His solicitors sent a pre‑action letter on 24 June 2023 requesting service of the curtailment notice; Company A replied on 27 June 2023 that the notice had been sent by email on 23 March and was therefore deemed received. The Appellant issued proceedings for judicial review in the Upper Tribunal (UT) on 4 September 2023.

The UT refused permission on the papers and refused renewal at an oral renewal hearing held on 11 March 2024. The UT judge refused permission on substantive grounds (holding that the Appellant had not discharged the burden of rebutting the presumption of receipt) and on delay grounds. The Appellant appealed to the Court of Appeal. The appeal raised multiple issues including (i) whether time runs from the date of the decision or the date of service, and (ii) whether Company A had properly served the curtailment notice by email. The Court of Appeal (Judge Baker delivering the lead judgment, with Judges Jackson and Bean agreeing) allowed the appeal on the substantive point, concluded that the UT had erred on the timing issue, granted a one‑day extension for filing the appeal notice, granted permission to apply for judicial review and remitted the claim to the UT for determination.

Legal Issues Presented

1. Does time for applying for judicial review under the UT Rules run from the date of the Secretary of State's decision or from the date that notice of that decision is given to the person affected (i.e. the date of service)?
2. Was Company A's email of 23 March 2023 properly served on the Appellant such that the presumption of receipt under Articles 8ZA and 8ZB of the Immigration (Leave to Enter and Remain) Order 2000 applies and is not rebutted?
3. Whether fresh evidence, filed after the UT decision, should be admitted on appeal (raised but not pressed on the substantive point).
4. Whether the Appellant should be refused permission to apply for judicial review on grounds of delay.

Arguments of the Parties

Appellant's Arguments (as advanced by Attorney Malik)

• The phrase in s.4(1) of the Immigration Act 1971 that the power to give or vary leave "shall be exercised by notice in writing given to the person affected" means that there is legally no decision until the notice is given to the person affected; time for judicial review therefore runs from service (date of notice), not from the internal date of the decision.
• Articles 8ZA and 8ZB must be read against that statutory requirement: Article 8ZB creates a rebuttable presumption that a notice sent by an authorised method (including email) is to be treated as given on the day it is sent, but the fact‑finder must determine whether the presumption is rebutted.
• The Appellant's signed statement denying receipt of the 23 March email is more than a bare assertion. Supporting material (notably the solicitor's 24 June 2023 letter requesting service of a curtailment notice) supports the Appellant's account that he did not receive the email and therefore crosses the modest threshold for permission to apply for judicial review set out in the Court of Appeal's guidance in Alam and Rana.
• The absence in Company A's casework record of any recorded delivery receipt (or any record showing a delivery receipt request) is relevant and supports the contention that service may not have occurred.

Company A's Arguments (as advanced by Attorney Biggs)

• Articles 8ZA and 8ZB create a rebuttable presumption that service by the methods listed in Article 8ZA is effective and that, where email is used, receipt is effected when the email arrives in the recipient's inbox. The Court of Appeal's decision in Alam and Rana is binding on this court as to those points.
• The Appellant bore a heavy burden to rebut the presumption; a mere denial that the email was not received is inadequate. On the evidence before the UT there was compelling evidence that the email was sent to the correct address and dispatched from Company A's systems, which gave rise to a clear inference of receipt.
• The Guidance about recording delivery receipts does not impose an inflexible procedural obligation whose breach would render service ineffective; delivery receipts are only recorded if received and the absence of a recorded receipt does not establish non‑service.
• As to time, the UT Rules should be given their ordinary meaning such that time runs from the date of the decision; where delay is alleged the tribunal can exercise discretion to extend time if justified.

Table of Precedents Cited

Precedent (anonymised)	Rule or Principle Cited For	Application by the Court in This Opinion
R (A and B) v Company A [2020] EWCA Civ 1527 (Alam and Rana)	Article 8ZB creates a rebuttable presumption that notice sent by methods in Article 8ZA is deemed given; email receipt is typically effected by arrival in the inbox; burden on litigant to raise a factual case that could succeed at trial.	The court applied Alam and Rana as the correct framework for assessing whether the Appellant had rebutted the presumption of receipt. The judgment relied on the test that, at permission stage, the material must raise a factual case which, taken at its highest, could properly succeed at a contested hearing.
UKI (Kingsway) Ltd v Company B [2018] UKSC 67 (and Sun Alliance and London Assurance Group v Hayman [1975] 1 WLR 177)	Ordinary meaning of "giving a notice" is causing it to be received; giving notice normally requires actual receipt unless context/statute provides otherwise.	The court cited the principle that giving notice ordinarily means causing receipt, and used it to explain that "giving notice" in the statutory scheme requires receipt but that the 2000 Order provides the mechanism (and presumptions) by which receipt is to be assessed.
R (Anufrijeva) v Secretary of State [2003] UKHL 36	Notice of a decision is required before it can have legal effect so that an individual is in a position to challenge it.	The court relied on the principle that notice is necessary for a determination to have legal effect, supporting the argument that service (and its timing) matters to when a decision becomes legally effective.
Secretary of State v A [2013] EWCA Civ 512 (Ahmadi)	Section 4(1) of the Immigration Act: the notice in writing is the way in which the Secretary of State's power is to be exercised; the notice is not merely a subsequent formality.	The court used Ahmadi to support the proposition that the date of service of the notice is legally significant because service is the mode of exercising the power to curtail leave.
Mehmood v Company A [2015] EWCA Civ 744	There is legally no decision to vary or curtail leave until the notice in writing has been given; internal decision dates are legally irrelevant absent service.	The court relied on Mehmood to conclude that time for judicial review runs from service (date of notice) for the purposes of determining when a legally effective decision exists.
R (Kalsi & Ors) v Company A [2021] EWCA Civ 184	Proper postal service is usually taken to show that the decision arrived at the address and was given to the applicant; assumption can be displaced by evidence to the contrary which must show non‑giving.	The court referenced Kalsi for the proposition that a presumption arising from proper service can be displaced by evidence, and that the evidence must show non‑giving to rebut the presumption.
R (Escobar) v Company A [2024] EWHC 1097 (Admin)	First‑instance consideration that it can be permissible to argue an email was intercepted before being read; at trial the judge found the evidence did not come close to rebutting the presumption.	The court noted Sheldon J's observations in Escobar but refrained from expressing a substantive view on the interception issue because it did not arise directly on the facts before it.
Ladd v Marshall [1954] 1 WLR 1489	Test for adducing fresh evidence on appeal (the Ladd v Marshall criteria).	The court indicated that the fresh evidence the Appellant sought to adduce did not satisfy the Ladd v Marshall test and the point was not pressed further in the substantive hearing.
R v Department of Transport ex parte Presvac Engineering [1992] 4 Admin LR 121	In the Administrative Court the period for seeking judicial review runs from the date of the decision; relevant to the difference in practice between the Administrative Court and the UT.	The court distinguished Presvac as a rule about the Administrative Court practice and held it was not determinative for the UT Rules where, on the authority of Mehmood and Ahmadi, the date of service is legally critical for decisions to curtail leave.
R (FZ) v London Borough of Croydon [2011] EWCA Civ 59	Relevant as an example of discretionary factors such as delay that can bear on permission to proceed.	The court referenced FZ as an example of delay being a discretionary factor to consider at permission stage; delay was considered by the UT and by this Court in the context of the Appellant's case.
R (Housing Community Interest Company) v Regulator of Social Housing [2020] EWHC 346 (Admin)	Administrative Court practice and timing issues previously recognised by chamber decisions referenced on timing of judicial review claims.	Cited as part of the discussion on Administrative Court practice; the court reiterated that Administrative Court practice under CPR does not determine the UT Rules interpretation in this context.

Court's Reasoning and Analysis

Overview of the analytical approach

The court proceeded by applying the statutory framework (Immigration Act 1971 s.3 and s.4), the Immigration (Leave to Enter and Remain) Order 2000 (Articles 8ZA and 8ZB) and the established authorities about the legal effect of notice (notably Ahmadi and Mehmood), and the Court of Appeal's guiding approach in Alam and Rana on the presumptions created by Article 8ZB.

The analysis addressed two principal questions: (A) whether the Appellant's material, taken at its highest, was enough to rebut the Article 8ZB presumption that the email notice had been given on the day it was sent; and (B) whether the UT had erred in law by treating time for judicial review as running from the date of the internal decision rather than the date of service.

A. Presumption of receipt and whether it was rebutted

1. The court accepted the legal framework that Articles 8ZA and 8ZB create a rebuttable presumption that notice sent by the methods listed in Article 8ZA (including email) is deemed given on the day it was sent, and that the burden of proving non‑receipt is not lightly discharged (as articulated in Alam and Rana).
2. The UT judge had concluded that the Appellant's evidence was a bare assertion and thus insufficient. Judge Baker disagreed and identified three reasons why the Appellant's case was more than a bare denial:
• (i) The solicitor's letter before action dated 24 June 2023 explicitly requested service of a curtailment notice and explained that the Appellant had been waiting for such a notice to switch providers. The existence and terms of that letter constitute independent evidence consistent with non‑receipt and are material to the factual assessment.
• (ii) It was a plausible inference from the Appellant's conduct (seeking to switch providers, seeking advice, requesting service) that if he had received the 23 March notice he would not have passively allowed the notice period to elapse and thereby become an overstayer. This is consistent with the Appellant's pleaded factual account and not mere assertion.
• (iii) Company A's casework record did not demonstrate that a delivery receipt had been recorded; the Guidance required recording of a delivery receipt response if one was received. The absence of any record of a delivery receipt (or an explicit record that a request was made) was potentially material to the question of whether an email was in fact received in a way that gave rise to notice.
3. Taken together, these points met the modest threshold identified in Alam and Rana for permission to apply for judicial review: the material, taken at its highest, raised a factual case which could properly succeed at a contested factual hearing. Judge Baker therefore concluded the UT judge was wrong to refuse permission on the basis that the Appellant's case was merely an unsubstantiated denial.
4. The court expressly refrained from deciding the separate and contested legal issue of whether an email might be intercepted after arriving in an inbox (the "interception" question). That issue was not squarely raised by the Appellant's arguments and, given the contested submissions, the court preferred to leave any definitive view to a future case where the factual matrix required it.

B. Timing of the running of time for judicial review

1. The UT judge had stated that "time in judicial review runs from date of decision not date of receipt" as a general proposition under the UT Rules. Judge Baker concluded that this approach was inconsistent with the statutory scheme and the authorities (notably Ahmadi and Mehmood) which recognise that service by notice in writing is the mode by which the statutory power is exercised and, until notice is given, there is legally no decision.
2. Accordingly, for a decision constituted by a notice in writing under s.4(1), the date of service of the written notice is the legally significant date for determining when the decision takes effect and thus when the limitation period for judicial review begins to run. The court rejected the attempt to characterise an earlier internal "factual decision" as the relevant date for time running.
3. Judge Baker distinguished Administrative Court practice (where a different approach has applied to when time starts to run) and concluded that that practice does not determine the interpretation of the UT Rules in the context of curtailment decisions where s.4(1) makes service integral to the creation of a legally effective decision.

Holding and Implications

Holding (core rulings)

• The appeal is allowed on the substantive ground (ground 2): the Court of Appeal concluded that the material before the Upper Tribunal, taken at its highest, raised a factual case that the Appellant had an arguable prospect of establishing that the email of 23 March 2023 did not reach him and that he had not been given notice of the curtailment.
• The appeal is allowed on the timing ground (ground 1): the UT erred in treating time for judicial review as running from the date Company A took the internal decision; where a decision must be exercised "by notice in writing given to the person affected" (s.4(1) Immigration Act 1971), the legally relevant date is the date of service (date notice is given) rather than the internal decision date.
• Procedural relief granted: the Court granted a one‑day extension for filing the appeal notice and granted permission to the Appellant to apply for judicial review. The Court remitted the judicial review claim to the Upper Tribunal for determination on the merits consistent with the observations in the judgment.

Implications

• The direct consequence for the parties is that the Appellant's claim for judicial review proceeds: permission is granted and the matter is remitted to the UT for a full fact‑finding evaluation of whether the Article 8ZB presumption was rebutted.
• The court emphasised established principles rather than creating new, broad legal rules: it applied existing authority (Ahmadi, Mehmood, Alam and Rana) to the facts and refused to make obiter pronouncements on contentious issues not squarely arising on the facts before it (notably the legal contours of "interception" of emails after arrival in an inbox).
• No novel, free‑standing precedent about interception of email was established; the court declined to decide that disputed question and left it to future cases with appropriate factual matrices.

Additional Notes

The summary above is strictly based on the material contained in the provided opinion. Where the opinion did not provide elaboration beyond what is recorded (for example, the court declined to resolve the interception question), this summary does not speculate or infer positions beyond the opinion's text.