FO & Ors (Service of notice of decision) Nigeria

FO and Others (Service of notice of decision) Nigeria [2007] UKAIT 00093

Date of hearing: No hearing

Date Determination notified: 26 November 2007

In BO & Others (Extension of time for appealing) Nigeria [2006] UKAIT 00035 and OI Nigeria (Notice of decision: time calculation) [2006] UKAIT 00042 the Tribunal has given guidance on the law and practice to be adopted by those of its members who have to decide whether a notice of appeal was given, or is to be treated as given, in time. In individual cases the guidance is sometimes difficult to apply, because of the practices of Entry Clearance Officers. We attempt here to analyse some issues relating to service of the notice of the decision against which an appeal is brought. We have attempted to deal fully and fairly with the matters that have come to our attention. Under the provisions of Rule 6 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 (SI: 2005/230), however, we are required to decide such issues without a hearing and by reference only to the matters mentioned in that rule. We are conscious that we have not had the benefit of legal argument on either side. Nevertheless, decisions have to be made.

Appeals to this Tribunal have to be begun by notice of appeal. If the appeal is against the refusal of entry clearance, Rule 7(2)(b) of the Procedure Rules provides that the notice must be given by the appellant "not later than 28 days after he is served with notice of the decision". Under the provisions of Rule 10, time may be extended, on application, but only if the Tribunal "is satisfied that by reason of special circumstances it would be unjust not to" extend time. It is therefore clear that in any case in which there are no "special circumstances" the notice of appeal must be in time in order to be valid. And the time limit of 28 days has to be calculated from the date of service of the decision.

The rules applying to service of the decision are not in the Tribunal's Procedure Rules, because the decision itself is not a Tribunal document. They are in the Immigration (Notices) Regulations 2003 (SI 2003/658). Those Regulations require a written notice to be given of any immigration decision which is "appealable", that is, can be the subject of an appeal to the Tribunal. Regulations 4, 5 and 6 set out the duty to give the notice, and specify its contents. Regulation 7 is headed "Service of Notice" and is as follows:

If the requirements of the Notices Regulations are followed, in conjunction with ordinary office procedures – for example, a proper and accurate notice of the date of service of a document delivered by hand, there ought to be no difficulty in knowing the date of service of the decision and hence the beginning of the 28 days limited for giving notice of appeal. Unfortunately, both the procedures used by Entry Clearance Officers and the records they keep leave the matter in doubt in a substantial number of cases.

The standard form used for giving notice of refusal of entry clearance in a number of posts has a space for giving the reason for the decision and the decision itself, and then states the right of appeal and the address at which an appeal can be lodged (under Procedure Rule 6 this may be the Tribunal's office in England or the overseas post itself). Below that is the following:

It will be clear from what we have said already that the form contains a clear misstatement of law. The law does not require a completed appeal form to arrive within 28 days after the date of the notice. It requires the appeal form to arrive within 28 days after the notice is served . The information on the notice of decision is misleading, and, given that we drew attention to this point in OI (Notice of decision: time calculations) Nigeria [2006] UKAIT 00042 , over a year ago, we must assume from the continued use of the form that its users have little interest in giving correct information. (The Notices Regulations do not require the time for appealing to be included in the notice of decision. It has to be on the appeal form, and is. That is, however, no excuse for providing wrong, different and therefore confusing information on the notice itself.)

The wrongness of the information at the foot of the Notice of Decision is particularly striking if the decision is sent by post. Then, under the provisions of regs 7(4)(b) and (5), the decision is not served until the twenty-eighth day after posting, ignoring the date of posting itself. In such circumstances the period stated in the notice has wholly expired by the time the period fixed by law begins. The two periods have not a single day in common.

The next problem about the standard form is that although it contains a space for entering the date of the decision itself (which is by no means always completed: OI was a case where it had not been), there is no provision for entering the date or method of service. The only exception is where the notice is "personally handed to" the applicant by an Entry Clearance Officer, in which case the receipt at the end may be (but, judging from our experience, by no means always is) completed. In fact there are some posts where the receipt is never – or very rarely – applicable, because the Entry Clearance Officers have decided, for various reasons, to have little or no personal contact with applicants.

Where the receipt is not completed, there is apparently no record of the date of service: surprisingly enough, there is often no record either of whether service in accordance with the Notices Regulations has ever taken place at all. Sometimes, no doubt, there is service by hand, even in cases where the receipt has not been completed. Sometimes, no doubt, there is service by post: but service by post is only lawful service of the notice if "delivery or receipt is recorded". We do not recall ever having seen an assertion by an Entry Clearance Officer that such was the case.

We understand that Entry Clearance Officers often communicate decisions by the use of "collection notices": after the preparation of the decision the applicant is told that it is ready for collection and he returns to the office to collect it. This is service "by hand", though not by an Entry Clearance Officer personally (so the receipt is not apposite) and the date of service seems not to be regularly or officially recorded; or, if it is recorded, the record is not made available to the Tribunal and so cannot influence any decision.

We also understand, from the inspection of a large number of cases and the documents that appellants send with their notices of appeal, that some Entry Clearance posts employ the services of commercial couriers. Sometimes, no doubt, the courier is engaged to deliver the notice by taking it to the applicant's address; sometimes the courier is engaged to operate as indicated in the previous paragraph, notifying the applicants that their decisions are available for collection from the courier's office and making them available for collection there. The use of couriers poses some problems, because it does not appear to be envisaged by the Notices Regulations at all.

We regard it as clear beyond argument that service of a notice by courier is not sending it by post. Postal services and courier services are antonyms, not synonyms. Section 7 of the Interpretation Act 1978, (which by s23(i) applies to the Notices Regulations as it applies to Acts of Parliament) is as follows:

The provisions as to the time of service is the subject of contrary provision in the Notices Regulations at reg 7(4), but there is no suggestion that anything other than post in the ordinary sense is meant. The postal service in any country is the official public means of conveying letters and parcels to addresses; it is the service by reason of which the country is, like 190 other countries, a member of the Universal Postal Union. It is the service to which a letter sent by post from another country is committed on arrival in the country in question. It is not a commercial courier service.

Can the use of a courier service be seen as giving the notice by hand? With little hesitation, but mindful of the caution expressed at the beginning of this decision, we think that the answer again has to be in the negative. First, if a courier is used, there would seem to be no difference in principle whether the courier receives the document in the same office from which he makes it available for collection, or whether he carries it some short or long distance before delivering it to the addressee. It is true that in either case the probability is the document is given, by hand, to the addressee by the courier. But that is also true of delivery by post if a registered or recorded delivery service is used, and nobody has ever to our knowledge suggested that delivery "by hand" includes use of registered or recorded delivery post. Giving a notice of decision by hand means, in principle, that the person making the decision gives the notice to the person in respect of whom it is made. The use of the phrase in the context of regulations as to service and the consequent running of time to our mind implies an instantaneous communication in the sense that the person affected by the notice receives it as it leaves the person making the decision. We would be prepared (as at present advised) to treat the meaning of the phrase as extending to cases where the notice is handed to the applicant by another member of the embassy's staff, with the same employer and answerable to the same ethos of work (if we may so put it) as the decision-maker. But a notice is not "given by hand" within the meaning of the Notices Regulations merely because the addressee receives it from somebody else's hand. It is "given by hand" only if he receives it by hand from the decision-maker or some other member of the embassy staff.

We appreciate that this conclusion is far from being unarguably right. It may be that UK posts abroad are entitled to subcontract Entry Clearance functions (including the giving of notices) to local commercial organisations, in which case it might be argued that delivery by the courier is giving the notice by hand. We do not know. All we can say is that no such thing appears to be envisaged by the Notices Regulations. Nor does it appear to be envisaged by a decision-maker who makes provision for the date of the decision to be recorded in such a way as to be taken as the date of service only when the notice was 'personally handed [over] by an Entry Clearance Officer'. It is for the reasons we have given that we reach the conclusion that we do. But, in any event, the use of couriers means that the Tribunal seems to have no reliable information from the Respondent about the date of service (or alleged service), and in those circumstances the consequences set out at paras 16-17 below follow inevitably.

The consequences of this interpretation of the rules, to the possibility of which we alluded in OI at [14], are serious. First, Entry Clearance Officers using courier services, or postal services where neither delivery nor receipt is recorded, are failing to observe the law every time they do so. Secondly, because the notice is not served as required by the Notices Regulations, time for bringing an appeal does not run against the applicant: the period of time limited for giving a notice of appeal cannot start until there is service in accordance with the Regulations.

We have to say that we have considerable difficulty in understanding why Entry Clearance Officers do not comply with the rules made by Parliament for routine aspects of their work; and we do not understand why simple ordinary office practices, such as a record of the date and method of service of a notice, do not appear to feature in our posts abroad. Alternatively, if such records are kept, we do not understand why an appropriate (as distinct from misleading) note is not put on the notice of decision. The present position is that there is often no evidence of the date when a decision was received by an applicant other than his own statement; and, for the reasons given above, where a date is given, that date may in fact not have been the date of service .

Immigration Judges have to make their decisions on such evidence as is available to them. The burden of proving that a notice is in time is no doubt on the appellant; but where no relevant information is provided by the respondent that burden may be quite easy to discharge. It does not follow that all notices should be treated as having been given in time; but where there is a statement by the appellant of the date of service on him (whether in a notice of appeal or elsewhere) that is not wholly incredible, and no such statement by the respondent, it is difficult to see why the Tribunal should not simply act on the former. To do otherwise simply condones the respondent's failures and runs the risk of endangering the Tribunal's independence.

As regards the method by which the notice of decision was transmitted to the appellant, the Tribunal will of course not simply assume the Respondent to have used a method not allowed by the Notices Regulations, for omnia praesumuntur rite esse acta . But that presumption is easy to discharge, and actual evidence in the form of an assertion by the appellant of a fact that is inherently likely will, in the absence of contrary evidence, almost certainly discharge it. Where the conclusion is that the notice was not served in a manner permitted by the Notices Regulations, it is difficult to see that time can be regarded as having started to run against the appellant. In such cases the appellant is no doubt entitled to waive the requirements of the Regulations, and does so by entering a Notice of Appeal. But there is no time limit on his doing so, because the time limit is governed by service, which has never taken place. (We should add that the same applies to the not infrequent assertion that no form of notice of appeal was given to the appellant with the notice of decision. Regulation 5(6) requires the notice of decision to be accompanied by a notice of appeal with certain information on it. Service of the notice of decision without the appeal form is not proper service; and that this is a substantive requirement rather than a merely formal one is shown, if there were any doubt, by the fact that, as explained above, the notice of decision contains an important misstatement of law corrected in the form of appeal.)

In the first case before us, the Notice of Appeal was received on 15 May 2007. The decision is dated "16/04/2007". The Notice of Appeal, (apparently provided by the respondent, because it is a scrappy photocopy identical (in its printing faults) with those in the other two cases) has the date of service entered as "16/04/2007" and the deadline to appeal is given as "12/05/2007". But the "method of service" is said to be "post", and there is an application for extension of time as follows:

Given that the method of service is said to have been by post, and the terms of the application for extension of time, it is evident that the "Date of Service" cannot be right. 16 April was the date the decision was made . It looks as though the appellant, or whoever filled in this part of the form, was misled by the wrong information given at the foot of the Notice of Decision. If the decision was sent by post, service is deemed to have taken place (under reg 7(4)(b) of the Notices Regulations) on the twenty-eighth day after posting, ignoring that day itself, i.e. on 14 May 2007, "unless the contrary is proved". The only evidence to the contrary is the application for extension of time, which shows that the appellant must have had the decision before 12 May, which was what he thought was the final date for appeal – otherwise, he would have been sure, rather than doubtful whether he was late. But there can be no doubt, on the evidence, that 15 May was amply within the 28 days allowed for his appeal, running from the date of any service by post. Alternatively, if the application for extension of time is right in its implication that service was by courier, not by post, then there has, for the reasons given above, been no service capable of causing time to run against the appellant. In either case, his notice of appeal was in time.

In the second case the date of service is entered on the appeal form as 20 April 2007, which, as in the first case, is in fact the date of the decision, and the deadline to appeal is given as "19/05/2007". The method of service is said to be "post", but in the space for an application for extension of time is this:

There is no evidence that service took place on the date of the decision, other than the entry of that date on the form, which, again, we assume to be a mistake arising from misinformation given by the respondent on the notice of decision itself. The clear evidence is that service took place, if at all (because again delivery was by courier) on 11 May. The Notice of Appeal was received on 25 May, again well in time.

In the third case the decision is dated "18/04/2006". The respondent has given no information about the date and method of service. On the Notice of Appeal the Date of Service is entered as "2 nd May 2007" and service is said to have been by post. No other relevant information is given. Here the date entered on the date of service does not conflict in any way with other information on the form and it seems to us that there is no reason not to accept it as a statement that the appellant was served on that date. His Notice of Appeal, received on 25 May 2007, was in time.

For the foregoing reasons all these three appeals will proceed to determination by the Tribunal.