Successful challenge to refusal of indefinite leave to remain in TOEIC case

An applicant has successfully challenged a refusal to grant him indefinite leave to remain on the grounds that he did not meet the continuous residence requirement, after his leave was wrongly cancelled in 2014 when the Home Office alleged that he had obtained an English language test by deception. It is an unreported judicial review in the Upper Tribunal and the case is R (MD Shahadat Hossain) v Secretary of State for the Home Department JR-2024-LON-000328.

Background

The applicant came to the UK as a Tier 4 General Student. He later extended this once but his second extension application was refused on 7 May 2014 based on an allegation that he had obtained an English language certificate through deception. This was part of the Test of English for International Communication (“TOEIC”) scandal where the Home Office wrongly accused thousands of people of cheating, and cancelled or refused their leave on that basis.

At the same time as refusing the application in May 2014, the applicant was issued with a notice that he was liable to removal under section 10 of the Immigration and Asylum Act 1999. This decision could be appealed, but only from outside the UK. The applicant sought to challenge the decision by judicial review but permission was refused and certified as totally without merit. The applicant also contacted his English language test provider seeking a copy of the audio recording of his tests, presumably so that he could challenge the deception allegations. The recording was not provided.  

The applicant then remained in the UK without permission and he did not comply with reporting conditions, meaning that he was deemed an absconder by the Home Office. He claimed asylum in 2018 before withdrawing this in 2022.

During this time the applicant also made a human rights claim and although this was refused, he appealed and the First-tier Tribunal held that he had not used deception when sitting his English language test. The applicant was then granted leave to remain on 28 November 2023 until 27 May 2026.

On 13 December 2023 the applicant applied for indefinite leave to remain under the ten year rule. This application was refused on the basis that the applicant did not have ten years of continuous lawful residence in the UK. The refusal noted that “the ruling for most of these cases are to place the applicant back in the position where they were first at before the allegations”.

This reference was to the case of Ahsan v Secretary of State for the Home Department [2017] EWCA Civ 2009 in which the Court of Appeal said that there would be some cases where the Home Secretary would be obliged to remedy a situation where someone’s leave had been cancelled or refused based on an allegation of cheating that was later proved to be unfounded. 

The refusal letter said that this did not apply here as the applicant had been in the UK as a Tier 4 General Student which was not a route that had a path to settlement. They also raised the matter of his absconding.

The refusal was not an appealable decision and so the applicant sought judicial review.

Judicial review

The applicant’s submission was that, in accordance with Ahsan, his application for indefinite leave should have been decided as though the decision and section 10 notice, both dated 7 May 2014, had not been issued. The effect of this would be that he should be treated as someone who met the requirement of ten years’ continuous lawful residence.

The Home Secretary disagreed with this, arguing that this case had been distinguished from those in the authorities. In particular, that she was entitled to take his absconding into account. The tribunal dismissed these arguments, saying they were immaterial to the outcome of Ahsan and Khan.

Another submission made by the Home Secretary was that “the Applicant falls outside the guidance in Ahsan because he did not appeal his adverse judicial review decision in 2014, and the Court of Appeal was only concerned with those cases before it or stayed awaiting it”. This argument was described as “unsustainable” by the Upper Tribunal, not least because his 2014 judicial review application had been certified.

The tribunal concluded that:

28. It is important to recognise that the Court of Appeal in Ahsan did not purport to create some form of new immigration rule or freestanding legal principle. Instead, it recognised that a limited number of people in a particular position had not been afforded an adequate remedy as regards the Respondent’s allegation of deception, and held that the Respondent was obliged to rectify this by the way in which she approached the implementation of a successful human rights appeal. This Applicant unquestionably formed part of that class of individuals, and I reject that any of the reasons put forward by the Respondent can rationally justify his exclusion – he was subject to what the Court of Appeal described at [2] as “a serious injustice”. Nor is such a basis provided by him having arrived at an adjudication of the allegation in a human rights appeal by a different route than those considered in, or stayed behind, Ahsan, (such as AF, the facts of whose case, it should be noted, bear considerable similarity to those here. 

The decision to refuse the applicant indefinite leave to remain was found to be unlawful and the Upper Tribunal directed that the decision be quashed and re-made with the applicant to be treated as meeting the continuous residence requirement for settlement on the grounds of long residence.

Conclusion

Given their role in all of this, the Home Office should really be taking a more generous approach to people who have been subject to the serious injustices that have resulted from the TOEIC scandal, the fallout of which has continued for well over a decade now.