At the hearing yesterday in Immigration Court, the Home Office Presenting Officer (government lawyer) was saying that my client has an unlawful stay in the UK and that the curtailment notice was served to her. She even gave a postal reference number to confirm that it was delivered via recorded delivery and signed by an individual on behalf of my client.
I was asked by the presiding Judge, “what can you say about this one, Mr Magsino?”
I responded: “Sir, the curtailment notice [visa cancellation] was served to my client (student visa) and I do not disagree to my friend lawyer on the other end (Ms B). But the problem with this, Sir is that the address where the curtailment notice was allegedly served is a wrong address unknown and unrelated to my client. There were case laws called Syed and R Javed decided by the Upper Tribunal and the Court of Appeals respectively and held that: “for a correspondence to be effectively served, it must be delivered to the recipient” but this postal receipt does not prove it was received by my client. And sir, I checked this online via trace and track on Royal Mail and this was received by someone which is not authorised by my client to receive any document on her behalf. It is unlawful for the authority to assume that a letter was delivered “effectively” to my client when the only thing they have now is a proof of postage. This does not affirm that the letter was received properly. And my client is under oath before you that she did not receive it. In effect, there is no curtailment as yet as far as our client is concerned.”
The Home Office said: “Well, you can check it online that the school was shut down by the UKVI.”
I said: “But it is not the job of my client to check the massive information on the internet when the school’s license was revoked. The Immigration Rules explicitly stated that it is the Home Office who will notify the students if and when their school is closed down.
And sir, this is the bone of my contention here. There is no curtailment served despite of the postal receipt from the Home Office because it was not received. Our client cannot rely on the internet information as it could just be coming from an unreliable source. I implore you sir to release my client because the Home Office proof of sending a letter is not a guarantee that it was received effectively by the intended recipient.
And sir my client is a person of good character. etc etc”
The Home Office said: “but the guarantor [also known as surety] has not enough money in the bank and the money being offered today is too much for her. The Surety has not enough accommodation to in-house the appellant [my client]. And she will be deported in mid-September.”
I said: “But sir, this hearing is not about anybody else, not the guarantor but the integrity and character of my client. In fact, it is not a requirement in law to have a guarantor. The detainee is my client and not the guarantor who is just here to give the Court a promise that she will be responsible to remind my client to comply with the conditions of her release or pay ex amount of money if ever my client runs away or abscond.
As far as we know in law, that detention must be used sparingly to effect deportation or removal. If there is no connection between detention and deportation, the Tribunal is directed by the legislation to release the detainee. In the interest of justice, my client is expectant and hoping for the outcome of her pending case at the High Court and it will be unlawful to detain my client for administrative convenience of the Home Office. Why not you release our client while waiting for her case to be decided and all her appeal rights exhausted.”
The Judge eventually say: “Ms B, I think I agree with Mr Magsino in this instance. You don’t have a valid proof that you have sent it to his client and it was not received. I believe with the integrity of the guarantor and with the client of Mr Magsino and therefore I will release her.”
Case adjourned. Won! Thank God.