“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 persons 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.” (6). Section 3(3) of the 1971 Act conferspower to vary an individual’s limited leave to enter or remain by, inter alia, “restricting…the limitation of its duration…”
“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 in 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." (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: (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. (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. Home Office Guidance (10). This was published in April 2014 under the title, POINTS BASED SYSTEM: MIGRANT CHANGE OF CIRCUMSTANCES FORM. It states, in material part: “Representative’s details: The applicantshould notify the UK Border Agency if he/she changes his/her representative. State the name, full address (including postcode) and telephone number of the new representative. Their Unique Reference Number, OISC reference number or details of their exemption should be included. If the representative is completing the form he/ she should confirm in this section that he/she holds a letter of authorisation from the migrant confirming the representative is acting on his/ her behalf. He/she must enclose the original letter with this form.” (11). Further Guidance by Home Office with the title, CURTAILMENT OF LEAVE version 12.0 valid from31 July 2014 specifically deals with a change of representatives at page 135 et seq in the following terms relevant to the issue in this case. “If the applicant changes their representative, or instructs one for the first time, before you accept the instruction or change of representative, you must check the migrant has given the Home Office written authorisation for the representative to act on their behalf, and any new representative the applicant nominates is either of the following: • regulated by the Office of the Immigration Services Commissioner (OISC) • a solicitor If the change of representative meets the above requirements, you must accept it and update CID with the new contact details. If the representative is not appropriately regulated, or the migrant does not send the authorisation, you must write to the applicant and their proposed representative to inform them you cannot speak to the new representative or comment on the case. If you reject the migrant’s change of representative this alone is not a reason to reject the error correction request.” • regulated by the Office of the Immigration Services Commissioner (OISC) • a solicitor (12). Our analysis of this instrument is as follows. Where the Home Office receives notification that an applicant has instructed a representative or has a new representative two options arise. If the specified requirements are satisfied the caseworker “must” accept the notification and update the internal records (The “CID”, or “GCID”) accordingly. Conversely if the specified requirements are not satisfied, the caseworker “must” inform both the applicant and the representative concerned that the notification has been rejected. We consider the clear philosophy and intent of this guidance to be that in every case where a notification is accepted all subsequent dealings and communications will, subject to any material development or relevant legal rule, be with the representative. In the typical case this will be to the advantage of the Home Office because inter alia it will promote efficiency and expedition and will be unaffected if, for example, the client alters his place of residence or departs the United Kingdom. In short, the acceptance of a notification establishes a concrete mechanism for subsequent dealings and communications and promotes legal certainty. (13). Furthermore considerations of reliance, expectation, predictability, good administration and representation arise. Our analysis above is harmonious with good administration. Further, the acceptance of a notification will normally generate in the applicant an expectation and assumption that all subsequent Home Office dealings and communications will be with the notified representative. The acceptance, in substance, constitutes a representation to this effect. A quasi-contractual arrangement, which benefits both parties, is born in consequence. (14). Article 8ZA of the 2000 Order establishes several options for the service of a written notice. The legislature clearly intended to cater for as many situations as possible. We consider that there is a clearly ascertainable legislative intention that in cases where a notification of representative has been given by the applicant and accepted by the Home Office the latter will normally serve any written notice on the representative. This construction accords with common sense, practical reality and reasonableness. Furthermore it is reinforced by the public law framework which we have outlined in the immediately preceding paragraph. (15). The matrix which we are addressing has a further public law dimension. We consider that in cases where a notification has been accepted the Home Office, if contemplating the service of a written notice on the applicant rather than the accepted representative, must as a minimum take into account the notification and its acceptance. It seems to us that the materiality of this factor is undeniable. It is trite law that where a choice (or discretion) exists all material factors must be considered as a matter of obligation. Where there is a failure to this effect the ensuing act or decision will normally be vitiated. Moreover, and independently, the Lumba principle applies: “The individual has a basic public law right to have his or her case considered under whatever policy the executive sees fit to adopt provided that the adopted policy is a lawful exercise of the discretion conferred by the statute: see In re Findlay[1985] AC 318 , 338E. There is a correlative right to know what that currently existing policy is, so that the individual can make relevant representations in relation to it. In R (Anufrijeva) v Secretary of State for the Home Department[2003] UKHL 36 ,[2004] 1 AC 604 , para 26 Lord Steyn said: "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." “ Per Lord Dyson in Lumba v Secretary of State for the Home Department[2011] UKSC 12 at [35]. "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." “ (16). In applying the above approach to the factual matrix we identify four standout features, namely the terms in which the solicitor’s letter dated09 February 2015 and its attachment were couched, the immediate consequential updating of the Home Office records and the failure of the Home Office to communicate to the applicant or the solicitors any rejection of the notification. Furthermore, the inference that the notification and its internal registration were simply overlooked by the case worker concerned is readily made. This is reinforced by the absence of any evidence of why the notice was not served on the solicitors. Giving effect to the public law template outlined above we conclude that the decision dated17 March 2015 must be quashed as it was not lawfully served and involved the breach of several well recognised principles. (17). We turn next to consider the further curtailment decision and the removal notice of3 April 2016 . As noted in [4] above the grant of permission to apply for judicial review was restricted to challenging the decision dated17 March 2015 . We are seized of an application to amend the applicant’s challenge. (18). The Tribunal invited written submissions from the parties’ representatives on the issue of remedy. These have now been received and considered. On behalf of the respondent it is submitted that it will suffice for the applicant’s purposes to make an order quashing the impugned decision of17 March 2015 . This is based on the premise that this decision gave rise to the applicant’s outstandingArticle 8 ECHR being refused on the basis that he was in breach of the Immigration Rules. The written submission continues: “The respondent submits that the quashing of the decision of17 March 2015 alone would result in the applicant’s outstanding Article 8 application being considered substantively as if it were an in time application. Thus quashing [said] decision would be sufficient to resolve the applicant’s difficulties as outlined to the court and provide an effective remedy.”