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Court of Appeal dismisses ETS challenges
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Back in the day, One Direction enjoyed considerable success and dominated the reported charts. Without a picture in the attic, though, good fortune and good looks cannot last forever. Decline is inevitable. It can be embraced with dignity but this eludes some performers, who simply go on playing the same tired old tunes for too long, sadly. Rare is the David Bowie, able to reinvent and adapt to move with the times. One Direction chose the former course and recently went their separate ways, abandoning their vocation to spend and enjoy the fruits of their labours. It is a lesson worth heeding.
In July this year the Court of Appeal dismissed the ETS challenges argued by Mr Zane Malik of Counsel. This write up has been rather delayed as there is simply no silver lining to be found. The judgment is R (On the Applications of Mehmood & Ali) v Secretary of State for the Home Department  EWCA Civ 744 and is delivered by Lord Justice Beatson. For background see my post on a parallel challenge in the Upper Tribunal in R (Gazi) v Secretary of State for the Home Department (ETS – judicial review)  UKUT 00327 (IAC): Good news and bad for challenges to ETS fraud decisions.
In Gazi, though, Mr Stanage of Counsel had managed to extract some very useful evidential analysis which was unfavourable to the Home Office. The team in Gazi went to town on demonstrating just how weak the Home Office case was. In contrast, there is no salvage left from the wreckage in Mehmood and Ali.
The case concerns the appeal rights arising (or not) from decisions under the old pre-Immigration Act 2014 version of section 10 of the Immigration and Asylum Act 1999 (“old section 10”). Such a decision would typically be made where a person is detected breaching the conditions of his or leave, for example by working when not permitted, or where the person is alleged to use deception when seeking leave. In short, the Court of Appeal concluded that where a person’s leave has been invalidated by a decision by the Secretary of State under the old section 10, that person can only normally appeal from outside the United Kingdom after he or she has been removed or departed voluntarily. It will not normally be possible instead to pursue an application for judicial review against that decision from within the UK.
If there were some sort of exceptional circumstances an application for judicial review would be permitted, but no such circumstances were detected in these cases and we continue to lack any meaningful guidance. The tribunal is now writing to all the affected litigants waiting for the outcome of Mehmood and Ali and requiring them to distinguish their case or face rejection of their case. The absence of guidance means there are simply no tools available by which this can be accomplished.
The continued lack of guidance therefore suits the Home Office very well indeed. Its ongoing absence is unsurprising given the poor facts of both cases (see below) and the way in which the cases were argued, which turned on obscure and pedantic black letter statutory interpretation issues. Back in the glory days of the disastrously drafted section 47 of the 2006 Act, this style of argument met with some “success”, in the sense that it led to lots of litigation in the higher courts. even then I doubt it had any beneficial final outcome for the litigants. Those heady days are long gone. One of the two key issues even ended up being described in the judgment as the “sequencing issue” as if the problem was a purely academic coding problem rather than securing a fair hearing for the hundreds affected by the case in the face of obviously dodgy evidence from the Home Office.
The facts of the Mehmood case were uninspiring. Most, but not all, lawyers know that bad facts often make for bad law. The college at which Mr Mehmood had been studying had been struck from the register of sponsoring colleges. In response, Mr Mehmood’s leave had been curtailed. He applied for extensions. While the last of these was still pending, he was encountered allegedly working in breach of his conditions of leave. This allegation was disputed, but it made the case inherently unsuitable as any sort of test case. We also learn that the certification of Mr Mehmood’s human rights claim as “clearly unfounded” was no longer disputed, suggesting of itself that the facts were very weak. Indeed, it is hard to see how any of the litigation could therefore ultimately have helped Mr Mehmood in any way given he had no basis for remaining in the UK anyway no matter what his remedy. One is left wondering why on earth this case ended up being pursued as a test case.
The other case, Ali, was an ETS case, by which I mean a case where the applicant had obtained an English language test result from provider Educational Testing Service Limited, or ETS. That certificate was later somehow identified as obtained by fraud (discussed at greater length here: Good news and bad news for ETS challenges) triggering a revocation of leave. Mr Ali contested the allegation that he had used fraud in any way and pointed to the absence of any specific evidence to suggest he had. His situation was that of many others affected by the ETS debacle. To put it another way, a careful or indeed good strategic litigator might well look for exceptional or unusual circumstances, but there were none on the facts of Ali.
Some might say that the uninspiring facts made the case ideal for testing the point of pure legal principle. Others would reply that only an ambitious tactician, not a wise strategist, would say so.
Mr Malik is undaunted and the litigation nevertheless continues:
Notice of Appeal lodged at Supreme Court today seeking to appeal CA's decision in TOIEC/ETS lead cases, Mahmood/Ali, http://t.co/cOSr04JJrV.
— Zane Malik QC (@ZaneMalikQC) August 11, 2015