Shoaib, R (on the application of) v The Secretary of State for the Home Department [2015] EWHC 2010 (Admin)

Case No CO/2831/2014

[2015] EWHC 2010 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 13 th July 2015

Before

NEIL CAMERON QC

(Sitting as a Deputy High Court Judge)

Between

THE QUEENClaimant

THE SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant

Mr Michael Biggs (instructed by Mayfair Solicitors) for Claimant

Mr Rob Harland (instructed by Government Legal Service) for Defendant

Hearing Hearing dates: 24 th June 2015

Judgment

Neil Cameron QC :

Introduction

[1]This is an application for judicial review of a decision made by the Secretary of State for the Home Department to curtail Mr Muhammad Shoaib’s leave to remain in the United Kingdom and to detain him.

[2]The Claimant relies on the following grounds of claim: i) The Defendant failed to serve notice on the Claimant of her decision made on 5th March 2014 to curtail his leave to remain as a tier 4 migrant, and was not entitled to rely upon Article 8ZA(4) of The Immigration (Leave to Enter and Remain) Order 2000 (“the 2000 Order”) as inserted by The Immigration (Leave to Enter and Remain) (Amendment) Order 2013 (“the 2013 Order”), which provides that notice shall be deemed to have been given. ii) In the absence of proper notice of the decision to curtail leave, the Defendant’s decision to detain the Claimant on the 2nd June 2014 was unlawful.

[3]At the hearing, Mr Biggs stated that Ground 3 was not pursued. Ground 3 was a contention that the Defendant had failed to exercise her discretion properly or at all to make a decision, pursuant to section 10 of the Immigration and Asylum Act 1999, to remove the Claimant from the United Kingdom.

[4]Both Mr Biggs for the Claimant, and Mr Harland for the Defendant, are agreed that if the Claimant succeeds on ground 1, he also succeeds on ground 2.

[5]The main issue which falls for consideration is whether, on the particular facts of the case, the Defendant was entitled to rely on the provisions of Article 8ZA(4) of the 2000 Order, which provides that notice pursuant to section 4(1) of the Immigration Act 1971 may be deemed to have been given.

The facts

[6]The Claimant is a national of Pakistan. He was born on 25th March 1986.

[7]On 1st May 2011 the Claimant entered the United Kingdom pursuant to leave to enter and remain until 30th October 2014 as a tier 4 student at the International School of Business Studies in Harrow.

[8]The Defendant kept a record of the Claimant’s application to leave to enter and remain in the United Kingdom as a tier 4 student. The record appears to show that the post to which the application was made was the British Embassy in Abu Dhabi. The record includes the following information: i) Local address:

“KHRO PAEEN PO DIR, TEH DIR DISTT, UPPPER DIR, 18000, PAKISTAN Tel no: 03139595221”

DIR, TEH DIR DISTT, UPPPER DIR, 18000, PAKISTAN Tel no: 03139595221” ii) “Work limited to max 20 hrs per week during term time”.

DIR, 18000, PAKISTAN

[9]On 20th February 2013 the International School of Business Studies had its tier 4 sponsor licence revoked. In his witness statement the Claimant states that the International School of Business Studies ceased its operations following revocation of the licence.

[10]In his witness statement, the Claimant states:

“I was advised by the college administration that I would receive a letter from the Home Office allowing me to enrol with another Sponsor college. I was told I should await receipt of that letter.”

[11]The Defendant has provided a “GCID – Case Record Sheet”. GCID is the acronym for the General Cases Information Database. The GCID record shows that, in January 2014, consideration was given to curtailing the Claimant’s leave to remain as the sponsor licence for the International School of Business Studies has been revoked.

[12]The GCID Case Record Sheet entry made on 3rd February 2014 includes the following:

“Migrant granted leave to remain as a Tier 4 Migrant until 30/10/14 to study with the International School of Business Studies. On 20/02/14 the Tier 4 Sponsor Licence for the International School of Business Studies was revoked. Case to BF as there no UK Address for this migrant. Please inform the Tier 4 Curtailment Team if a UK address can be established.”

Please inform the Tier 4 Curtailment Team if a UK address can be established.”

[13]Mr Harland, for the Defendant, submits that as the entry on the Case Record Sheet was made on 3rd February 2014, the reference to 20th February 2014 must have been an error and should have been 20th February 2013.

[14]On 5th March 2014 the following entry was made on the GCID Case Record Sheet:

“all checks completed ok to casework Api shows migrant still in country There is no evidence that the migrant has been complicit in any non-compliance of the sponsor so leave is to be varied to 60 days in accordance with paragraph 527 of the Tier 4 sponsor guidance. Therefore leave falls to be curtailed with No Right of Appeal under paragraph 323A(b) of HC395 (as amended) so as to expire on 04 05 14. As Muhammad Shoaib’s whereabouts are not known and we have no record of any representative acting for him/her, we are unable to contact the sponsor for a last known UK addressed and we do not have an e-mail address, therefore it has not been possible to serve the notice of decision to an address. The notice of decision has been placed on file and is deemed to have been given in accordance with article 8ZA(4) of the Immigration (Leave to Enter and Remain) Order 2000 (as amended).”

Api shows migrant still in country

[15]On 5th March 2014 a letter to the Claimant was placed on the file (“the Decision Notice”). The letter includes the following:

“Dear Muhammad Shoaib, Points Based System – Curtailment of Leave Re: Mr Muhammad Shoaib Pakistan 25 March 1986 DECISION TO REASONS This decision notice is served in compliance with the Immigration (Leave to Enter and Remain) Order 2000 (as amended). CURTAILMENT OF LEAVE This decision has been made in line with the Immigration Rules and the Tier 4 policy guidance. You were granted leave to enter as a Tier 4 General Student until expiry of 30 October 2014 in order to undertake a course of study at International School of Business Studies. On 20 February 2013 the sponsor licence of the International School of Business Studies was revoked. Home Office records have been checked and there is no evidence that you have made an application to change your sponsor or made a fresh application for entry clearance, leave to enter or remain in the United Kingdom in any capacity. It is not considered that the circumstances in your case are such that discretion should be exercised in your favour. The Secretary of State has therefore decided to curtail your leave to enter or remain as a Tier 4 Migrant so as to expire on 04 May 2014. Your leave has been curtailed under paragraph 323A(b)(i) of the Immigration Rules. Before your leave to enter or remain expires you must either leave the United Kingdom or submit a fresh application for leave to remain. If you leave the UK your leave to enter or remain will lapse under Article 13(3) of the Immigration (Leave to Enter and Remain) Order 2000 and you may require a visa to enter the UK. RIGHT OF APPEAL You are not entitled to appeal this decision. Section 82 of the Nationality Immigration and Asylum Act 2000 does not provide a right of appeal when an applicant still has leave to enter or remain in the United Kingdom and so is entitled to stay here. You are not required to leave the United Kingdom as a result of this decision. You still have leave to enter or remain where your current conditions continue to apply until 04 May 2014. Please ensure that you understand the conditions of your stay. Although you are not required to leave the UK at this time your leave to enter or remain in the UK is due to expire on 04 May 2014. […]”

Points Based System – Curtailment of Leave Re: Mr Muhammad Shoaib Pakistan 25 March 1986 DECISION TO REASONS CURTAILMENT OF LEAVE

RIGHT OF APPEAL

[16]The GCID Case Record Sheet entry for 2nd June 2014 includes the following:

“Subject was encountered today 02/06/14 at AL HAMAD BUTCHERS as part of an enforcement visit ….. . Entry gained by consent, he was the target and identified himself as being Muhammad Shoaib born 25.03.86, male and pakistani (sic) national. I called Eaton House duty office and after Home Office checks were completed, it was apparent that he was an Overstayer. […] Based on the above I was satisfied that subject was an overstayer in accordance with section 10(1)(a) of Immigration Act 1971 (as amended) an offence under section 24(1)(b)(i) of same. I referred the facts of the case to ……… by phone who authorised the service of IS151A and his initial detention. Subject was arrested under par 17(1) Schedule 2 of the Immigration Act 1971 as amended. SHOAIB is in sole immigration detention at HASLAR IRC, detained under paragraph 16(2) Schedule 2 of the Immigration Act 1971 as amended authorised by ….. . He was not a suitable candidate for temporary release as he has failed to leave the UK when his leave finished and his removal to pakistan (sic) is imminent on his valid PAK PPT. He has no close ties with the UK and lives in rented accommodation makeing (sic) it likely for him to abscond if given TR. […]”

[17]The Decision Notice was handed to the Claimant on 2nd June 2014.

[18]The GCID Case Record Sheet for the 3rd June 2014 records that the Claimant stated that he had never received notification of the fact that his leave to remain in the UK had expired.

[19]On 11th June 2014 the Defendant gave directions for the Claimant to be removed from the UK on the 20th June 2014. The removal directions were served on the Claimant on 13th June 2014.

[20]On the 18th June 2014 the Claimant made an application for judicial review of the Defendant’s decision to curtail his leave, to detain him and to remove him from the UK.

[21]The GCID Case Record Sheet for 14th August 2014 states that the Claimant was released from detention. The chronology set out in the Defendant’s Detailed Grounds of Defence dated 6th March 2015 indicates that the Claimant was released from detention on 22nd August 2014.

The Legal Framework

[22]Section 4(1) of the Immigration Act 1971 (“the 1971 Act”) requires notice in writing to be given of a decision to vary leave to remain in the United Kingdom. It provides:

“(1) The power under this Act to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers, and the power to give leave to remain in the United Kingdom, or to vary any leave under section 3(3)(a) (whether as regards duration or conditions), shall be exercised by the Secretary of State; and, unless otherwise [allowed by or under] this Act, those powers shall be exercised by notice in writing given to the person affected, except that the powers under section 3(3)(a) may be exercised generally in respect of any class of persons by order made by statutory instrument.”

[23]The importance of giving notice of a decision before it can have the character of a determination with legal effect was emphasised by Lord Steyn in R (oao Anufrijeva) v. Secretary of State for the Home Department

[2004] 1 AC 604

at paragraph 26:

“26 The arguments for the Home Secretary ignore fundamental principles of our law. Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule. It is simply an application of the right of access to justice. That is a fundamental and constitutional principle of our legal system: Raymond v Honey [1983] 1 AC 1, 10G per Lord Wilberforce; R v Secretary of State for the Home Department, Ex p Leech, [1994] QB 198 , 209D; R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115 .”

[24]Section 3A of the 1971 Act empowers the Secretary of State by order to make provision with respect to varying leave to remain the UK, and in particular to provide for the form or manner in which leave may be varied. Pursuant to that power the Defendant made the Immigration (Leave to Enter and Remain) Order 2000 (“the 2000 Order”) and subsequent amendments to it.

[25]Article 8ZA of the 2000 Order (as amended by The Immigration (Leave to Enter and Remain (Amendment) Order 2013, which came into force on 12th July 2013) provides:

“8ZA.— Grant, refusal or variation of leave by notice in writing (1) A notice in writing— (a) giving leave to enter or remain in the United Kingdom; (b) refusing leave to enter or remain in the United Kingdom; (c) refusing to vary a person's leave to enter or remain in the United Kingdom; or (d) varying a person's leave to enter or remain in the United Kingdom, may be given to the person affected as required by section 4(1) of the Act as follows. (2) The notice may be— (a) given by hand; (b) sent by fax; (c) sent by postal service to a postal address provided for correspondence by the person or the person's representative; (d) sent electronically to an e-mail address provided for correspondence by the person or the person's representative; (e) sent by document exchange to a document exchange number or address; or (f) sent by courier. (3) Where no postal or e-mail address for correspondence has been provided, the notice may be sent— (a) by postal service to— (i) the last-known or usual place of abode, place of study or place of business of the person; or (ii) the last-known or usual place of business of the person's representative; or (b) electronically to— (i) the last-known e-mail address for the person (including at the person's last-known place of study or place of business); or (ii) the last-known e-mail address of the person's representative. (4) Where attempts to give notice in accordance with paragraphs (2) and (3) are not possible or have failed, when the decision-maker records the reasons for this and places the notice on file the notice shall be deemed to have been given. (5) Where a notice is deemed to have been given in accordance with paragraph (4) and then subsequently the person is located, the person shall as soon as is practicable be given a copy of the notice and details of when and how it was given. (6) A notice given under this article may, in the case of a person who is under 18 years of age and does not have a representative, be given to the parent, guardian or another adult who for the time being takes responsibility for the child.”

[26]Article 8ZB(1) of the 2000 Order provides:

“8ZB.— Presumptions about receipt of notice (1) Where a notice is sent in accordance with article 8ZA, it shall be deemed to have been given to the person affected, unless the contrary is proved— (a) where the notice is sent by postal service— (i) on the second day after it was sent by postal service in which delivery or receipt is recorded if sent to a place within the United Kingdom; (ii) on the 28th day after it was posted if sent to a place outside the United Kingdom; (b) where the notice is sent by fax, e-mail, document exchange or courier, on the day it was sent.”

The Defendant’s Policy

[27]The Defendant has published guidance on Curtailment of Leave. The relevant guidance on service is as follows: “Serving non-appealable decisions to a UK address Where possible, unless records show the person is not in the UK, you must serve non-appealable curtailment notices to a UK address, if you cannot give the notice to the migrant in person. The Home Office policy preference is to serve the decision to:• A UK postal address where possible and evidence indicates the person is in the UK

• An email address where possible and evidence indicates the person is outside the UK You must send the decision notice for a non-appealable decision to, in order of preference:

• The UK postal address the migrant or their representative provided for correspondence (by recorded delivery).

• The email address the migrant or their representative provided for correspondence.

• The last known or usual postal address of the migrant, their last known or usual place of study or place of business, or the last known or usual place of business of the migrant’s representative (by recorded delivery). This must not be the address of a points-based system (PBS) migrant’s sponsor, unless that is the correspondence address the migrant previously provided.

• The last known or usual email address of the migrant or the migrant’s representative (by recorded delivery). This must not be the email address of a points-based system (PBS) migrant’s sponsor, unless it meets the criteria set out below. You must identify a suitable postal or email address by looking through relevant systems and databases, for example-

• CID for in the UK application records and notes fields which may have further information

• CRS for out of country application records

• SMS notifications received from sponsors. You must make two attempts to serve a non-appealable curtailment decision to a UK postal or email address, where available, before serving the decision to file. If only one address is available, you must make both attempts to serve to that address. If you attempt to serve to the migrant’s correspondence address and the notice is returned, you must make your second attempt to serve the notice by sending it to the migrant’s or representative’s correspondence email address. If that is not available or is defective, use the last known or usual home address, place of study or place of business, or their representative’s business address, if one is recorded on CID. If there is evidence that the migrant or representative is still using the address, for example other Home Office letters are being successfully delivered there, you may exceptionally make an additional attempt to serve the notice to that address. You must serve the notice to the migrant’s correspondence email address, if they have provided one, if you cannot serve the notice to a UK postal address because:

• the correspondence address provided is outside the UK

• no suitable address is known

• records show that the migrant is not in the UK, or

• an attempt to serve the notice to a suitable postal correspondence address has failed. If no email address has been provided for correspondence, you must next try to serve to the last known or usual postal address or email address of the migrant or the migrant’s representative, where available. Use the postal address if you have both a postal and email address. See below for further guidance on service to an email address. If you are unable to find or get an email address for the migrant, or your attempts to serve to the email address are unsuccessful, you must serve the decision to their overseas address if they have provided one. If there is no overseas address, or they have not provided an overseas address, you must serve the decision to file.”

• A UK postal address where possible and evidence indicates the person is in the UK

• An email address where possible and evidence indicates the person is outside the UK

• The UK postal address the migrant or their representative provided for correspondence (by recorded delivery).

• The email address the migrant or their representative provided for correspondence.

• CID for in the UK application records and notes fields which may have further information

• CRS for out of country application records

• SMS notifications received from sponsors.

• the correspondence address provided is outside the UK

• no suitable address is known

• records show that the migrant is not in the UK, or

• an attempt to serve the notice to a suitable postal correspondence address has failed.

Submissions

[28]Mr Harland accepted on behalf of the Defendant that if she was not entitled to rely upon the deeming provision in Article 8ZA(4) of the 2000 Order, the decision made under section 10 of the Immigration and Asylum Act 1999 (“the 1999 Act”) that the Claimant be removed from the United Kingdom was unlawful, and therefore his detention pursuant to paragraph 16(2) of schedule 2 to the 1971 Act was unlawful.

[29]Mr Biggs submitted that the Claimant’s detention was unlawful as no effective notice had been given curtailing leave. Mr Biggs also submits that the service of the Decision Notice on the Claimant at the time of his detention on 2nd June 2014 was ineffective as it was served after the date on which it was said to take effect, or alternatively if it took effect immediately, the consequence would be that the Claimant’s leave to remain would be extended by section 3D of the 1971 Act, as an appeal could be brought under section 82(1) of the Nationality, Immigration and Asylum Act 2002.

[30]Given Mr Harland’s concession it is not necessary for me to make a ruling on the submissions made by Mr Biggs in relation to the effect of section 3D of the 1971 Act. The central matter in issue between the Claimant and the Defendant is whether the Defendant was entitled to rely on the deeming provisions of Article 8ZA(4) of the 2000 Order.

The Claimant

[31]Mr Biggs submits that service is only deemed to have taken place when the factual and legal conditions on which the application of Article 8ZA(4) is dependent have been established.

[32]Mr Biggs relies on the following passage from page 224 of De Smith’s Judicial Review, 7th Edition:

“Where a set of facts must exist for the exercise of the jurisdiction of the decision-maker (in the strict sense of permitting the decision-maker to enter into its enquiry) the courts are entitled to inquire into the existence of those facts”

[33]He submits that the Court must decide for itself whether the Defendant was entitled to rely upon Article 8ZA(4).

[34]Mr Biggs submitted that: i) The effect of the deeming provision in Article 8ZA(4) which permits ‘service to file’ is to deprive a person of his constitutional right to service of notice, and therefore a strict approach should be taken. ii) That, at the time of making his application for leave to enter the UK, the Claimant had provided an address in Pakistan. That address was a postal address provided for correspondence falling within Article 8ZA(2)(c). iii) Alternatively, if the address in Pakistan was not a postal address for correspondence, it was the Claimant’s last known place of abode falling within Article 8ZA(3)(a)(i). iv) Alternatively if the address in Pakistan did not fall within Article 8ZA(2)(c) or Article 8ZA(3)(a)(i), the notice could have been sent to the Claimant’s last-known place of study in accordance with Article 8ZA(3)(a)(i). v) Service cannot be said to be ‘not possible’ for the purposes of paragraph (4) of Article 8ZA because the address is outside the UK. It was not open to the Defendant to find that attempts to given notice in accordance with paragraphs (2) and (3) of Article 8ZA were ‘not possible’ as service could have been effected on the address in Pakistan or by sending the notice to the Claimant at the International School of Business Studies (his last-known place of study). The reasoning was deficient as there was no consideration of whether service could have been effected to the local address in Pakistan.

The Defendant

[35]Mr Harland submits that it makes no practical difference as to whether the Court reviews the decision to rely on the deemed service provisions of Article 8ZA on administrative law or Wednesbury principles, or as a question of precedent fact or jurisdictional fact.

[36]Mr Harland submits: i) The ‘local address’ provided at that time that the Claimant applied for leave to enter is not a postal address provided for correspondence within the meaning of Article 8ZA(2)(c). ii) Although an address provided for correspondence may be outside the UK, a last known or usual place of abode must be within the UK. He places reliance upon statements made by the Minister when introducing the Immigration (Leave to Enter and Remain) (Amendment Order) 2013 (which inserted Article 8ZA) to the delegated legislation committee in the House of Commons, and by the Minister in the House of Lords. He also places reliance on the Defendant’s policy guidance on Curtailment of Leave and submits that it is an aid to interpretation. iii) If the Claimant’s interpretation of Article 8ZA(2)(c) was correct, it would be open to the Defendant to serve notice on a local address given at the time a migrant applied for leave to enter, and then, on the basis that attempts to give notice have failed, rely on the deeming provision in paragraph (4), even if it were known that the migrant was in the UK and without regard to whether it was established that someone known to the migrant, who could be entrusted with the correspondence, was at the local address. iv) There is no evidence that the Claimant ever lived at the local address in Pakistan, the application having been made in Abu Dhabi. v) Service on the Claimant at his last-known place of study would not have been possible as the International School of Business Studies had ceased operations. vi) The GCID Case Record Sheet records the reasons (as required by Article 8ZA(4)) why attempts to give notice in accordance with paragraphs (2) and (3) were not possible, namely because the Claimant was known to be in the UK, his whereabouts were unknown, there was no record of a representative acting for him, the Defendant was not able to contact the sponsor for a last known UK address, and there was no email address.

Discussion

[37]Mr Biggs argues that this is a case where a particular set of facts has to exist for the exercise of jurisdiction, and therefore it is for the Court to make a finding on whether those facts did exist.

[38]Section 4(1) of the 1971 Act provides that the power to vary leave to remain shall be exercised by the Secretary of State, and that the power shall be exercised by notice in writing. The purpose of Article 8ZA of the 2000 Order is to make provision as to how the notice in writing required by section 4(1) of the 1971 Act may be given.

[39]The provisions of Article 8ZA set out a framework to be followed by those exercising the powers granted by section 4(1) of the 1971 Act. Article 8ZA(1) provides that such notice may be given in accordance with the provisions of the Article that follow.

[40]Article 8ZA(4) does not provide that where in the opinion of the decision-maker attempts are not possible the deeming provision applies, but provides that where attempts are not possible and the decision-maker records the reasons for this and places the notice on the file, the notice shall be deemed to have been given.

[41]In my judgment the question for the Court to decide is whether the decision-maker was entitled to conclude that the necessary facts were established to enable him or her to rely upon the deeming provision. Normal administrative law principles apply in determining whether the Defendant’s decision that the deeming provisions did apply was unlawful.

[42]I do not accept Mr Harland’s submission that the policy of the Defendant as to how she will exercise the powers vested in her is an aid to construing those powers. Policies such as the Curtailment of Leave guidance are intended to secure consistency and direction in the exercise of discretionary powers. A policy or guide to the exercise of a discretion does not assist in determining the extent of the powers which vest that discretion in the decision maker.

[43]The reasons for concluding that attempts to give notice were not possible are recorded in the GCID Case Record Sheet as: i) The Claimant was still in the country; ii) The Claimant’s whereabouts were unknown; iii) There is no record of a representative acting for him; iv) The Defendant’s officials are unable to contact the sponsor for a last known UK address; v) The Defendant’s officials do not have an email address.

[44]The Claimant does not argue that any of those reasons were in themselves erroneous. The Claimant argues that the Defendant was not entitled to conclude that it was not possible to give notice in accordance with paragraphs (2) and (3) of Article 8ZA as she could have served the Decision Notice on the postal address in Pakistan which the Claimant gave when making his application for leave to enter the UK.

[45]In reaching my conclusions I have been mindful of the constitutional principle identified in Anufrijeva that notice of a decision is required before it can have legal effect, and of the fact that the Claimant was detained.

[46]I will first consider the argument in relation paragraph (2)(c). i) Given that Article 8ZB(1)(a)(ii) makes provision as to when a notice sent in accordance with Article 8ZA is deemed to have been given refers to a notice sent to a place outside the UK, there can be no doubt that a postal address provided for correspondence, as referred to in Article 8ZA(2)(c), may be outside the UK. ii) The question to be determined is whether, when she had been provided with a local address in Pakistan at the time of the Claimant’s application for leave to enter the UK, the Defendant was entitled to conclude that it was not possible to send the Decision Notice to a postal address provided for correspondence. iii) Mr Harland argued that a local address given at the time of the Claimant’s application for leave to enter the UK was not an address provided for correspondence. iv) My attention was not drawn to any system or other means by which a migrant is asked to provide an address for correspondence. v) The Claimant did provide an address at the time of making his application for leave to enter. The address he gave in Pakistan was recorded as a ‘local address’ although not located in Abu Dhabi, where the Claimant made his application for leave to enter. vi) As there is no procedure in place, to which my attention has been drawn, by which a migrant is asked to provide an address for correspondence, it would be difficult to conclude that the address which was given in Pakistan was not given, amongst other purposes, for correspondence. vii) The fact that paragraph (3) of Article 8ZA distinguishes a last known or usual place of abode from an address for correspondence indicates that an address provided for correspondence (whether an email address or a postal address) is not necessarily the same as a usual or last-known place of abode. Therefore, if the address in Pakistan was not a place of abode, it is an address for correspondence. viii) In the record of reasons in GCID Case Record Sheet, the Defendant’s official does not provide any explanation as to why it was not possible to serve the notice on the address in Pakistan. The record states that the Claimant’s whereabouts are unknown, there is no record of a representative acting for him, that the officials are unable to contact the sponsor for a last known UK address, and that they do not have an email address. The record does not state that it is not possible to serve the Decision Notice on the address in Pakistan. ix) For those reasons, in my judgment the Defendant erred when she found that it was not possible to give notice in accordance with Article 8ZA(2) of the 2000 Order. That error can be categorised in the following alternative ways: a) The jurisdictional pre-requisite to permit reliance on Article 8ZA(4) of the 2000 Order was not met, as it cannot be said that it was not possible to give notice to a postal address provided for correspondence by the Claimant as a letter could have been sent to the address in Pakistan which had been supplied by the Claimant and was recorded as his ‘local address’; or b) The decision that it was not possible to given notice to a postal address for correspondence was irrational as such an address, the ‘local address’ in Pakistan, had been provided by the Claimant; or c) The reasons, as required by Article 8ZA(4) of the 2000 Order, given by the Defendant for concluding that it was not possible to serve the decision notice to an address were deficient, as there was no explanation in the GCID Care Record Sheet as to why it was not possible to send the notice to the local address in Pakistan.

[47]The Claimant also argues that the Defendant erred in concluding that it was not possible to given notice in accordance with Article 8ZA(3). There are two aspects to this argument, namely that it was erroneous to conclude that it was not possible to give notice to the last-known place of abode, as notice could have been sent to the local address in Pakistan, or alternatively notice could have been sent to the last-known place of study, the International School of Business Studies.

[48]The Defendant proceeded on the basis that the Claimant was in the UK and that his place of abode, although his whereabouts were unknown, was in the UK. I accept Mr Harland’s submission that there is no evidence that the address give in Pakistan was at any time the Claimant’s place of abode. In my judgment the Defendant did not fall into error in concluding that it was not possible to given notice in accordance with paragraph (3) of Article 8ZA.

[49]The International School of Business Studies was the Claimant’s last-known place of study. That college had ceased to operate following revocation of its tier 4 sponsor licence in February 2013. The Defendant expresses her reasons by stating ‘we are unable to contact the sponsor for a last known UK address’. Although that reason might have been better expressed, I agree with Mr Harland’s submission that a lengthy essay giving reasons cannot be expected in cases such as this. In my judgment, as the college had ceased to operate, the Defendant fell into no error in concluding that it was not possible go give notice in accordance with paragraph (3), which includes postal service to the last-known place of study, as that place of study had ceased to operate, and as in giving her reasons the Defendant’s officials referred to the fact that she could not contact the sponsor.

[50]For those reasons I have concluded that the Defendant was not entitled to rely upon the provisions of Article 8ZA(4) and to conclude that it was not possible to give notice to the Claimant in accordance with paragraph (2) of that article. I reach that conclusion whether the relevant factual basis upon which the Defendant proceeded is properly to be regarded as a question of precedent fact or jurisdictional fact, or on the alternative basis that the Defendant’s approach is to be reviewed on conventional administrative law principles.

[51]I find that Ground 1 succeeds, and as a result Ground 2 also succeeds.

[52]The application for judicial review is granted.

[53]I invite the parties to agree, or to make submissions on, the appropriate form of order to include a declaration that the detention of the Claimant was unlawful, and to allow damages to be assessed for that unlawful detention.