By Vishal Makol of OTS Solicitors
At the end of 2017, the Court of Appeal, Civil Division, delivered an important decision for those dealing with the fall out from the discovery of cheating during the Test of English for Internal Communication (TOEIC) tests back in 2014. In Ahsan v The Secretary of State for the Home Department, the Court of Appeal confirms that an out of country appeal to a removal decision is inappropriate where cheating on the TOEIC test is the reason given for a removal notice. The case is also a useful addition to every immigration lawyer’s article 8 Human Rights act immigration cases particularly on the question of whether someone in the UK on a student visa can have developed a ‘private life’ for the purposes of Article 8 ECHR.
The TOEIC litigation
Since 2014, when the BBC Panorama programme exposed cheating at some testing centres where the Test of English for Internal Communication (TOEIC) tests were conducted on behalf of the Educational Testing Service there has been a significant volume of litigation dealing with the fall out. Some 40,000 people had their Leave to Remain cancelled, or an application refused, often on the grounds of little or no real evidence to indicate that the individual had themselves been involved in the cheating that was exposed. As the Windrush Scandal has demonstrated, the effects of such a decision in the context of the UK’s ‘hostile environment’ are grave for the individuals concerned. It is no surprise to London immigration appeal lawyers that so may cases have been brought – and that litigation is ongoing.
In-Country appeal in TOEIC cases
3 of the 4 appellants in this case brought proceedings after being served with notices under section 10 immigration Act 1999 (which pre-dated the immigration Act 2014) that they were subject to removal. They had originally come to the UK on Student Visas and had subsequently been granted extensions to stay in the UK. Their challenge was primarily based on an argument that an out of country right of appeal against the decision under section 10 that they had used deception – i.e. cheating – in their TOEIC tests was not an appropriate remedy. Procedural fairness, both under common law and Article 8 ECHR (if it was engaged, which in these cases, the Court found that it was) required that the appellants should be able to provide oral evidence to rebut the allegations of deception.
Given that video link was likely to be unavailable, or only available at prohibitive cost to the appellants, an out of country appeal was not an appropriate remedy. They should be allowed to challenge the removal decisions under section 10 by way of judicial review. In the course of the judicial review proceedings, the question of whether the appellants had in fact cheated in their TOEIC would be addressed, recognising that even in judicial review, the court has a residual fact finding power where appropriate.
It was argued on behalf of the Home Secretary that individuals could have an in-country appeal under the ‘Human Rights claim’ route but the Court recognised in many cases that nature of the section 10 procedure meant that few of those concerned would have made a Human Rights claim before the section 10 notice was served. The Court agreed that a Human Rights claim could offer an alternative ‘in-country appeal’ to judicial review but only if certain conditions were satisfied
- It would have to be clear that the First Tier Tribunal would determine whether the appellant used deception as alleged in the section 10 notice.
- It would have to be clear that if the finding of deception was overturned the appellant would, as a matter of substance, be in no worse position than if the section 10 decision had been quashed in judicial review proceedings.
- The position at the date of the permission decision would have to be either that a Human Rights claim has been refused (but not certified), so that the applicant is in a position to mount an immediate Human Rights appeal, or that the applicant has failed to accept an offer from the Secretary of State to decide a Human Rights, claim promptly so that a Human Rights appeal would become available.
Article 8 rights for students
Another key area of clarification that the Ahsan case has given immigration solicitors – and anyone interested in immigration and Human Rights law, is around the applicability of Article 8 ECHR to students. As a consequence of the decision of the Supreme Court in Patel v SSHD  UKSC 72,  1 All ER 1157, the Home Office has argued that students do not have Article 8 rights. The Court of Appeal concluded in Ahsan that the facts of any individual case might show that someone who had come to the UK to study might very well, over time, build up the kind of connections that would mean that they would have Article 8 rights.
Advice to anyone concerned about their situation with TOEIC
The Court offered a helpful summary of the position for people facing a removal notice based on the allegation that they cheated in a TOEIC. It is clear that Article 8 has taken on a new importance in these cases, and that an out of country appeal is unlikely to be appropriate in these cases given the importance of someone being able to give oral evidence to rebut the allegations of fraud.
It’s vital to have advice and support from experienced immigration appeal solicitors in these circumstances. OTS solicitors are recommended for immigration and Human Rights in the Legal 500 and have extensive experience dealing with immigration and judicial review. We have handled a number of cases on behalf of clients caught up in the TOEIC litigation and would be happy to help you with your case. Should you wish to discuss your case with one of our top London immigration lawyers, call 0203 959 9123 to book an appointment.
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Posted on: Wednesday, 06 June, 2018