Court of Appeal finds it arguable that student did not receive Home Office email cancelling his leave

The Court of Appeal has overturned a refusal of permission by the Upper Tribunal in a judicial review claim where the appellant disputed receipt of an email from the Home Office cancelling his leave. He had seemingly only discovered that the cancellation has been sent after he instructed solicitors to send a pre action letter to the Home Secretary in relation to the failure to serve a cancellation notice on him.

In these circumstances, the court said that the usual presumption – that the sending of an email containing notice of the curtailment of leave to remain amounted to notice being given – had been rebutted. The case is R (Ashokkumar Dhandapani) v Secretary of State for the Home Department [2025] EWCA Civ 1244.

Background

The appellant is an Indian national who arrived in the UK on 23 December 2021 on a student visa valid until 18 August 2023. On 18 July 2022 his sponsor, Sheffield Hallam University, told the Home Secretary that the appellant had stopped studying at the university and they no longer sponsored him.

On 23 March 2023 the Home Secretary cancelled the appellant’s leave. This was done via email with an attachment stating that his leave would end on 22 May 2023 and he had until then to leave the UK or make another application. The notice stated that there was no right of appeal or administrative review of the decision.

The appellant says that he did not receive that email. On 24 June 2023 a pre action letter was sent on the appellant’s behalf. The letter said that the claimant had been told that he could not be given a confirmation of acceptance for studies (CAS) letter to move to a new university sponsor until his leave had been cancelled, and so he had been waiting for that. The pre action letter asked that the Home Secretary serve a cancellation notice within the next 14 days.

A response was sent on 27 June 2023 stating that the decision had been served on the appellant by email on 23 March 2023 “and is therefore deemed received”.

The judicial review

On 4 September 2023 the appellant issued a claim for judicial review. The grounds stated that the burden of proof was on the Home Secretary to prove that the email had been received by the appellant and there was no evidence that this was the case.

On 11 March 2024 UTJ Lesley Smith dismissed the judicial review, stating that the deadline ran

from date of decision not date of receipt. That is expressly so in this Tribunal by reason of the Tribunal Procedure (Upper Tribunal) Rules 2008. That is a different issue from that raised in Anufrijeva in the House of Lords or Secretary of State for the Home Department v Ahmadi [2013] EWCA Civ 512. Those judgments concern the issue whether a notice is effectively served and do not affect the general principle regarding the date from when time runs in a judicial review.

The judge held that the case was “without substantive arguable merit” and refused permission on that basis as well as on the grounds of delay.

The Court of Appeal

An appeal was lodged on two grounds:

(1) The UT erred in law in holding that the time to bring a judicial review claim runs from the date of the decision as opposed to the date of service of that decision.

(2) The UT erred in law in refusing permission to apply for judicial review as it is arguable that the Secretary of State did not properly serve his decision on the Appellant.

The Home Secretary resisted the appeal stating that:

the Court of Appeal was correct in R (Alam) and R (Rana) v SSHD [2020] EWCA Civ 1527 at [30] to observe that, for the purposes of Articles 8ZA and 8ZB of the 2000 order, notice of a decision by email is constituted by receipt which is effected by the arrival of the email in the email inbox of the person affected and, given this, but in any event, the evidence before the UT did not give rise to a factual case which, taken at its highest, could properly succeed in a contested factual hearing.

The court reiterated that Alam had said that the sending of the email with the notice of cancellation gives rise to a rebuttable presumption that notice has been given, and that presumption “will not be lightly discharged”. However the court rightly considered it significant that the appellant had instructed solicitors to try to prompt the cancellation notice from the Home Secretary. This was deemed to be evidence in support of the appellant’s claim that he had not received the email.

It was also clear that the appellant wanted to stay in the UK and had been trying to switch to a new sponsor. It did not make any sense that he had received the cancellation notice but then taken no further action in response.

The appellant was also entitled to rely on the fact that the Home Secretary had no record of either having requested or received a read receipt. Taking all of these factors together, the Court of Appeal concluded that the requirement for a grant of permission in a judicial review had been met.

The Court of Appeal also accepted the appellant’s submission that the Upper Tribunal judge was wrong in saying that the time limit had started to run from the date of the Home Secretary’s decision to cancel. The court described the Home Secretary’s position on this as “wholly unprincipled” and said that:

On the clear authority of this Court in Mehmood, there is legally no decision to curtail an individual’s leave to remain until he has been given notice in writing. What is legally relevant is the date and time of the service of notice in writing to the person affected.

The appeal was allowed, permission for judicial review granted, and the matter will now return to the Upper Tribunal for substantive consideration. 

Conclusion

This really is another one where you wonder why the Home Secretary is fighting the case at all. Although perhaps her initial success at the Upper Tribunal is an indication as to why she is continually prepared to try.