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Unsuccessful challenge to entry clearance refusal by man who claimed not to have received curtailment notice

A man who had lived in the UK for over 20 years and was married to a British national before the relationship broke down has been unsuccessful in his challenge to an entry clearance refusal on the grounds that he had not received the notice of curtailment. The case is Escobar v Secretary of State for the Home Department [2024] EWHC 1097 (Admin).

Background

The claimant is a Bolivian national who had been granted leave to remain as the spouse of a British national on 4 June 2014. He applied for renewal of his leave in February 2020. On 6 October 2020 he was granted further leave until 12 April 2023. On 23 December 2022 he travelled to Bolivia and when he returned to the UK on 24 January 2023 he was refused entry clearance as his spouse had withdrawn sponsorship and so he was considered to have arrived without valid entry clearance. He was served with a decision refusing entry before being detained and removed to Bolivia the next day.

On 25 October 2022 the claimant had been emailed a notice of curtailment, to the address provided on his application form as the applicant’s. The letter said that his leave had been cancelled and would now end on 24 December 2022 and that he should either leave the UK or make another application before then.

The claimant accepted that the notice of curtailment was sent to his email address but explained in his witness statement that he had not seen it and that it was not in his inbox. He said that if he had seen it, he would have applied for leave on another basis, as he had lived here for over 20 years and he would not have travelled to Bolivia until this was sorted out. The claimant suspected that his wife, who had access to his email account, had deleted it. 

The judicial review

There were two grounds in the judicial review challenge to the refusal of entry clearance. The first was that the curtailment notice was not effectively served. The claimant argued that the statutory presumption of service had been rebutted and so the notice must be treated as though it had not been lawfully given. This would then lead to the entry clearance decision made in reliance on the notice being unlawful.

The second ground of challenge was that there had been a breach of the duty to act fairly given the claimant had been unaware of the curtailment decision. It was argued that he should have been allowed to make representations as to other reasons he should have been permitted entry to the UK.

On the first ground, the court accepted that the presumption of service to the claimant’s email address was capable of being rebutted, however said that he had “not come close to demonstrating” it. The court noted that in both witness statements the claimant said that the email was not in his inbox (present tense) and not that it had never been there, nor did the claimant say whether or not the email was in the deleted folder. The court also said that a computer expert may have been able to explain what happened to the email.

In response to the point made by the claimant that if he had been aware of the email he would have acted on it, the court said that was a possible inference but not the only or obvious one. The court speculated that the claimant may have been taking his chances with the trip to Bolivia given he still had a biometric residence permit with an expiry date of 12 April 2023.

On the fairness ground the court reiterated that it did not accept the premise for the argument, which is that the claimant had not read the letter. The court then said that in any event there is a public policy interest in ensuring people read correspondence from the Home Office.

Conclusion

If the claimant’s account of events is correct then this is a very unfair decision. However I think the concluding point made by the court is the strongest one, which is that the claimant should have taken steps to sort his status once the relationship broke down in April 2022. Easier said than done, certainly, but this is a good example of why it is important that people understand their immigration status and know to seek advice when things change.

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Sonia Lenegan

Sonia Lenegan is an experienced immigration, asylum and public law solicitor. She has been practising for over ten years and was previously legal director at the Immigration Law Practitioners' Association and legal and policy director at Rainbow Migration. Sonia is the Editor of Free Movement.

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