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People accused of ETS cheating have in-country right of challenge


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The Court of Appeal has held in Ahsan v Secretary of State for the Home Department (Rev 1) [2017] EWCA Civ 2009 that people accused of cheating on the TOEIC English language test and threatened with removal from the UK have the right to challenge that decision in this country rather than from abroad.

In three of the four grouped appeals decided this morning, the appellants had been served with a removal notice under section 10 of the Immigration and Asylum Act 1999. Lord Justice Underhill said that

an out-of-country appeal would not satisfy the Appellants’ rights, either at common law or under article 8 of the Convention, to a fair and effective procedure to challenge the decisions to remove them; and that in those circumstances, subject to the human rights claim issue considered below, they were entitled to proceed with such a challenge by way of judicial review.

The court did not accept the Secretary of State’s argument that the application for judicial review should be rejected because the appellants could pursue an in-country appeal by way of a human rights application instead.

Comment from Greg Ó Ceallaigh, counsel for Mr Ahsan
The key legal point is that the court rejected the proposition that judicial review should be refused because there was an adequate alternative remedy. Building on the decision of the Supreme Court in Kiarie and Byndloss they held that, because of the nature of the allegations and the necessity of oral evidence to defend them, an out-of-country appeal was not an adequate alternative remedy. Therefore people should be allowed to bring judicial review claims in-country, unless they were given an in-country appeal. That was the case whether looked at through the prism of the common law or Article 8 ECHR.

The decision will please many people accused by the Home Office of deception on the TOEIC test and seeking to challenge that decision in-country. Lord Justice Underhill, though, noted that we are still left with a

very messy and unsatisfactory state of affairs… a yet further illustration of the difficulty and complexity of the law in this area.

In the fourth appeal, the Secretary of State had certified that an in-country appeal on human rights grounds was “clearly unfounded”, meaning that only an out-of-country option remained. This claim, too, succeeded and the certification quashed:

The certification can thus only be upheld on the basis that the case that NA had cheated was, in effect, unanswerable. However, that was not the reason for the certification given in the decision letter. There is the further problem that the letter did not advert in any way to NA’s denial of having cheated pleaded in the previous judicial review proceedings, let alone seek to explain why any such denial was clearly unfounded. In my judgment those points are sufficient to render the certification unlawful.

The court has, helpfully, given for the assistance of practitioners a short summary of its reasoning at the conclusion of a lengthy judgment, although Underhill LJ stressed that it carries a risk of over-simplification. The summary is as follows:

(1) In deciding by what route a decision to remove someone on the basis that they cheated in a TOEIC test can be challenged, the starting-point is to establish whether the decision was made under the 2014 Act regime or its successor. (If it was made prior to 20 October 2014 it will fall under the old regime, and if it was made after 5 April 2015 it will fall under the new regime; in between those dates the position depends on the effect of the applicable commencement and transitional provisions.)

(2) If the decision falls under the old regime it will have been taken under section 10 of the 1999 Act in its unamended form. The person affected by the decision will generally have a right only to an out-of-country appeal, under section 82 of the 2002 Act, read with section 92 (1): they will not, except by unusual chance, have a right to an in-country appeal under the “human rights claim” provision of section 92 (4), because they will not typically have made such a claim prior to the removal decision: see para. 15.

(3) What the Court holds in part (A) – see in particular paras. 72-98 – is that an out-of-country appeal is not an effective remedy where (a) it would be necessary for the appellant to give oral evidence on such an appeal and (b) facilities for him or her to do so by video-link from the country to which they will be removed are not realistically available. It accordingly holds, subject to (4) below, that persons against whom such a decision is made will be entitled to challenge the decision by way of judicial review; that is so whether or not their article 8 rights are engaged. In reaching that conclusion the Court follows the approach of the Supreme Court in Kiarie and Byndloss to what are substantially similar circumstances and distinguishes its previous decisions in Mehmood and Ali and Sood. The Court finds that both conditions were satisfied in the present cases and observes that condition (a) is likely to be satisfied in TOEIC cases generally (see para. 91) and that in typical cases condition (b) is likely to be satisfied also (see para. 90).

(4) Notwithstanding (3), the Court at para. 99-127 accepts that in principle permission to proceed by way of judicial review could be refused if the person in question could achieve an equivalent remedy by an in-country human rights appeal under the 2014 Act regime, subject to the Home Secretary’s power to certify the claim as wholly unfounded. But such a remedy would only be equivalent if the three conditions identified at para. 116 above are satisfied, which they were not in these cases.

(5) Part (B) of the judgment concerns a challenge to the certification of a human rights claim in a particular case to which the 2014 Act regime applies. The Court finds that the certificate is liable to be quashed. The decision does not directly depend on the issue of whether the Appellant cheated in his TOEIC test, but the Court makes some observations about the appropriateness of certification where that is the determinative issue: see para. 156.

(6) The judgment also discusses the authorities on the extent to which the article 8 rights of students may be engaged by their removal prior to completion of their studies (see paras. 84-88) and the obligations of the Secretary of State to facilitate return in cases where a person who has been removed is successful in an out-of-country appeal (see para. 133).

Stephen Knafler QC of Landmark Chambers and (as mentioned above) Greg Ó Ceallaigh of Garden Court acted for Mr Ahsan, instructed by Liam Doyle of M & K Solicitors. The other appellants were represented by Rowan Pennington-Benton of 3 Hare Court, Michael Biggs and Zane Malik (both of 12 Old Square).

Lisa Giovannetti QC and Colin Thomann of 39 Essex Chambers appeared for the Secretary of State.

All were commended for “very high” quality oral submissions in a hearing fast-tracked due to the number of pending cases potentially affected.

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CJ McKinney

CJ McKinney

CJ McKinney is a specialist on immigration law and policy. Formerly the editor of Free Movement, you will find a lot of articles by CJ here on this website! Twitter: @mckinneytweets.