R (Alam) v SSHD [2020] EWCA Civ 1527
The two appeals contended that the SSHD did not provided “notice in writing of” the decision to curtail the Appellants’ leave. As Floyd LJ notes at para 20, the most generous interpretation would mean that the Appellant must actually become aware of the decision. However, that approach is rejected at para 29 in the following terms:
“In my judgment, the giving of notice for the purposes of section 4(1) of the 1971 Act and the 2000 Order 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.”
The relevant principles to consider are:
“(a) where a method of sending within Article 8ZA (2) or (3) has been followed, the burden falls on the litigant to show he has a real prospect of establishing that the document was not received in the sense in which I have interpreted that word;
(b) 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 in the sense which I have explained;
(c) 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;
(d) each case will nevertheless depend on its own facts.”