NB, R (On the Application Of) v Secretary of State for the Home Department [2011] EWCA Civ 887

Case No C4/2010/2815[2011] EWCA Civ 887
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
(QUEEN’S BENCH DIVISION)
(HIS HONOUR JUDGE THORNTON QC)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday 1 July 2011
Before
LORD JUSTICE LONGMORE
Between
THE QUEEN ON THE APPLICATION OF NBAppellantSECRETARY OF STATERespondentFOR THE HOME DEPARTMENTRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr A Khan (instructed by Ct Emezie Solicitors) appeared for Appellant. for The Respondent did not appear and was not represented.
Judgment
[1]In January 2006 NB obtained leave to enter the United Kingdom, from Nigeria as a student for a master’s degree for one year. On 11 January 2007 that leave was extended to 31 October 2010. She then made an application for extension to her leave as a Fresh Talent Scheme student, on the basis of available points, I think 95. That application was made in or before July 2008, but it was refused and her original leave was curtailed because the Secretary of State decided that NB did not any longer meet the conditions under which the original leave was granted. That decision, at page 59 of my bundle, is addressed to NB and gives both the decision and the reasons which are as follows:
“You applied for an extension of stay in the United Kingdom as a Fresh Talent: Working in Scotland scheme participant, but your application had been refused. The Secretary of State is not satisfied that you intend to seek and take work in Scotland, during any period of leave granted as a Fresh Talent Working in Scotland scheme participant. In addition, the Secretary of State is not satisfied you continue to meet the requirements of the Rules under which your leave to remain was granted. Therefore, the decision has also been made to curtail your leave so that it expires on the date shown at the end of this notice.”
[2]The notice is in a formal form and has the usual provision that the applicant has a right of appeal. There is then a provision for saying that help and advice on returning home can be obtained from the immigration service; there is a space for signature; there is no signature. The date is given as 28 July 2008 and there are enclosures in the letter in the form of a passport and supporting documents. One of these supporting documents is at page 61 and that is the reasons for refusal letter that is signed by a person called K Gordon and purports to be also dated 28 July 2008.[3]In August 2008 NB appealed against that refusal of leave, but in September 2008 she withdrew her appeal because she said she proposed to embark on a master’s degree in oil and gas enterprise management.[4]There came a time when the Secretary of State refused any further extensions of leave on 16 February 2010 because she said that “the leave to remain had already been curtailed by the decision in July 2008 and also because NB had no points.” After further representations about available funds, which would tend to show that further points could be granted, the Secretary of State again refused leave and NB instituted judicial review proceedings on 27 April 2010. Mr Justice Irwin adjourned them into court on notice of the Secretary of State to enable NB to explain how she was served with the decision, which enabled her to appeal.[5]The matter then came before HHJ Thornton QC who refused permission for judicial review at an oral hearing, at which the Secretary of State was represented, for two reasons: he said that there was, effectively, a signature because the notice of immigration decision and the reasons for the refusal letter were a composite document and the latter part of that was signed; and secondly because the regulations do not require a signature in any event and so there is no question of the notice of immigration decision being a nullity. Mr Khan seeks to renew that application for permission to proceed to judicial review by way of appeal. Burnton LJ refused permission on the papers. Mr Khan now appears before me this morning. In a spirited argument he submits that, technical though the point may be, since the notice of immigration decision had no signature it has no validity. He points to the fact that the reasons for refusal letter, purportedly dated 28 July 2008, have at the top a fax date (when it was faxed to a particular number) of 10 June 2010 at 15.34 in the afternoon. He submits that the likelihood is that the reasons only came into existence at that time and were backdated. That is speculative and it is highly unlikely; it just cannot be right. Frequently one sees documents which are perfectly genuine or of a particular date which have a different fax date on the top because someone has asked for a copy. Not surprisingly, once judicial review was instituted in April 2010, no doubt a number of people would want to see the document in the Home Office files and it would have been faxed to them.[6]On the substance of the point Mr Khan submits that section 4 of the Immigration Act requires a notice of immigration decision to be in writing and signed. But it does not say so; it does not say that the writing has to be signed by anyone in particular, or at all. Mr Khan then points to the Immigration (Notices) Regulations 2003, number 658, which provides in regulation 4, subject to regulation 6:
“The decision maker must give written notice to a person of any immigration decision.”
Regulation 5 sets out the contents of the notice; regulation 6 says to what it applies and regulation 7 talks about service of notice and provides that a notice required to be given under regulation 4, may be (a) given by hand, (b) sent by fax, (c) sent by postal service and then provides in regulation 7(2):
“(2) Where— (a) a person’s whereabouts are not known; and (b) (i) no address has been provided for correspondence and the decision-maker does not know the last-known or usual place of abode or place of business of the person; or (ii) the address provided to the decision-maker is defective, false or no longer in use by the person; and (c) no representative appears to be acting for the person, the notice shall be deemed to have been given when the decision-maker enters a record of the above circumstances and places the signed notice on the relevant file.” (a) a person’s whereabouts are not known; and (b) (i) no address has been provided for correspondence and the decision-maker does not know the last-known or usual place of abode or place of business of the person; or (ii) the address provided to the decision-maker is defective, false or no longer in use by the person; and (c) no representative appears to be acting for the person, the notice shall be deemed to have been given when the decision-maker enters a record of the above circumstances and places the signed notice on the relevant file.”
[7]So for the purpose of deemed service on the conditions set out in regulation 7(2), it does seem that there has to be a signed notice. It is therefore striking that the regulations can give an example when a signed notice is required; and, if regulation 4 and the early part of regulation 7 are to apply, there seems to be no real possibility of any argument that when those regulations talk about a written notice that it must be a written notice with a signature attached. So it does seem to me that there is no statutory requirement that it be signed, in which case the argument must fall to the ground. I find myself attracted also to HHJ Thornton’s first point, namely that the two documents must be treated as a composite decision in any event, particularly because it is specifically said at the end of the actual notice that there are enclosures which contain supporting documents. It is, in my judgment, quite sufficient if one of those supporting documents is signed, or at least the relevant supporting document is signed, even if there is a statutory requirement for a signature, which I cannot accept.[8]Even if Mr Khan gets over both those points he still would be met, if I gave him permission to appeal, with the argument that any requirement for signature could not possibly be mandatory and would only be directory. It could not be said that someone who receives a notice of decision and actually serves a notice of appeal in response to it -- so had obviously got it and responded to it -- that the whole thing collapses to the ground because of a requirement of a signature which is in some way mandatory. To the extent that Mr Khan requires an implication into section 4 of the Immigration Act and/or the regulation 4 of the regulations, it makes it even more difficult to say that such an implication results in a mandatory requirement than it would if it was an express provision in the statute or the regulations.[9]For all of those reasons I fear that Stanley Burnton LJ was inexorably right. Ingenious as the point is, and not uninteresting as it is, I cannot bring myself to accept that it is sufficiently important to justify an appeal to this court when it would inevitably have to fail.

Order

Application refused.