The Court of Appeal has decided in Alam v Secretary of State for the Home Department [2020] EWCA Civ 1527 that sending a decision letter to a person’s last known address will generally be sufficient proof that the letter has been received. To prove otherwise, it must be shown the letter was intercepted and did not arrive, not merely that the person was unaware of the letter.

The different approaches of the Upper Tribunal and High Court

Back in November 2019 I wrote about the High Court case of Rahman v Secretary of State for the Home Department [2019] EWHC 2952 (Admin). The court considered what the Home Office must do when issuing a letter cancelling a person’s visa (or, if you prefer it in legal jargon, what the Home Office must do to effectively serve a notice curtailing a person’s leave).

The High Court overruled the earlier Upper Tribunal decision of Mahmood [2016] UKUT 57 (IAC), which had decided that sending the decision letter is sufficient. The tribunal felt that there was no requirement that the person has actual knowledge of the decision or its contents.

The High Court preferred a more nuanced approach, deciding that:

1. The Home Office is entitled to presume that, if the letter is sent to the person’s address, it has been given to them and they thereby become aware of its contents;
2. However, this presumption can be rebutted by proving the letter was not sent or that the person never became aware of its contents;
3. If you can show that you acted in good faith throughout and did not receive the decision, this will be enough (even where, as in Mr Mahmood’s case, the letter was sent).

This has now been disapproved by the Court of Appeal, which reverted to the approach in Mahmood.

The Court of Appeal enters the fray

The case concerned two students. Both were issued with letters advising that their student visas had been cancelled. Both claimed that they had never received the letters, despite the letters being sent to their address.

The court decided that neither of the students could show that the letters were not delivered to them, and dismissed their appeals.

Problem with the High Court’s approach in Rahman

The Court of Appeal was not willing to follow the approach of the High Court due to the risk of rewarding those who do not check their mail:

…the giving of notice for the purposes of section 4(1) of the 1971 Act and the [Immigration (Leave to Enter and Remain) Order 2000] does not require that the intended recipient should have read and absorbed the contents of the notice in writing, merely that it be received. If it were not so, a failure to open an envelope containing the notice, for whatever reason, would mean that notice was not given. Similarly, I do not consider that the recipient must be made aware of the notice. Again, a recipient who allows mail to accumulate in a mailbox or on a hall table will not be aware of the notice. Proof of such facts should not enable the person to whom the mail is addressed to establish that the notice was not given, by being received. [29]

The good/bad faith distinction was also given short shrift:

there is no basis in the language of the 2000 Order for such a distinction, and… the resultant approach is unworkable. [21]

So what is needed to show a letter hasn’t been received?

Correct approach to service

The Court of Appeal decided that a letter is received when it is transmitted to the recipient:

Receipt of an email, for example, will be effected by the arrival of the email in the Inbox of the person affected. Likewise, documents arriving by post will normally be received if they arrive, addressed to the person affected at the dwelling where he or she is living, at least in the absence of positive evidence that mail which so arrives is intercepted. A document received at an address provided to the SSHD for correspondence is received by the applicant, even if he does not bother to take steps to collect it. [30]

As such, when trying to prove that a letter was not received, mere assertion that the letter did not come to the attention of the person affected is insufficient.

The following four points were drawn to the attention of judges considering permission for judicial review in such cases:

1. Where the Home Office sent the decision by fax, post, email or courier to the last known postal or email address of the person, the burden falls on the litigant to show he has a real prospect of establishing that the document was not received;
2. At the permission stage, the litigant will need to do more than show that the notice did not come to his attention, but establish how he proposes to show that it was never actually received (i.e. delivered to his address);
3. Subject to discretionary factors such as delay, the question will be whether the material before the court raises a factual case which, taken at its highest, could properly succeed in a contested factual hearing;
4. Each case will nevertheless depend on its own facts.

The importance of keeping the Home Office up to date

This was the title of my write-up of the High Court decision in Rahman. Despite the change in approach brought about by the Court of Appeal’s decision in Alam, the central lesson remains the same: advising the Home Office when you move address is important.

If the Home Office sends an important letter to an old address, despite you updating them with your new address, they will not be able to get past the first hurdle of showing that the letter was posted to the last known address (as required by the legislation). But if you have not told them your new address, they cannot really be blamed. The burden will fall on you to prove that the letter was not received i.e. not delivered to your last known address. This is likely to be difficult.

There is no obligation to notify the Home Office of a change of address. However, ensuring that they have your current address will hopefully mean you do not miss any important decisions issued. You can update your address using this form on the gov.uk website.