TOEIC litigation—can decisions be challenged from within UK? (Ahsan v The Secretary of State for the Home Department)

This article was first published on Lexis®PSL Immigration on 15 December 2017. Click for a free trial of Lexis®PSL

15/12/2017

Immigration analysis: Greg Ó Ceallaigh, barrister at Garden Court Chambers, looks at the implications of the important judgment in Ahsan v The Secretary of State for the Home Department, and in particular considers how Test of English for International Communication (TOEIC) decisions can be challenged under both the pre- and post-Immigration Act 2014 removal and appeals regimes.

Original news

Ahsan v The Secretary of State for the Home Department [2017] EWCA Civ 2009, [2017] All ER (D) 19 (Dec)

The Court of Appeal, Civil Division held that the third of three specified conditions normally entitling the Upper Tribunal
(Immigration and Asylum Chamber) to refuse permission for judicial review had not been met, such that permission to review of the defendant Secretary of State’s decisions that three appellants had cheated on their tests of English for international communication should not be refused on the basis that they had an alternative remedy of a human rights appeal. The court further held that certification of one appellant’s human rights claim as clearly unfounded had been unlawful, and he should have been granted permission to apply for judicial review.

What is the significance of this case? Why is it important for practitioners?

This is a highly significant case in a number of respects.

First and foremost, it establishes an entitlement to bring a challenge in-country against a decision that a person should be removed following an allegation that they cheated in obtaining a TOEIC certificate provided by the Educational Testing Service (ETS).

Following a ‘Panorama’ expose that demonstrated substantial cheating in such centres, and in particular the use of proxies to take exams, many thousands of people had their scores cancelled and faced removal. According to figures before the court, 40,000 people either had their leave to remain cancelled or a further application refused. Those affected were frequently provided with weak evidence, or even no evidence at all.

It is difficult to overstate the seriousness of the consequences of such decisions, particularly in view of the hostile environment legislation in the Immigration Act 2016 (preventing people with cancelled leave from, for example, renting homes or driving cars). In addition to losing significant sums they had spent on educational courses, those affected were treated as fraudsters, with the obvious attendant impact on the possibility of return to the UK and their reputations.

As a result of the decision in the Ahsan case, however, anyone with an appreciable private life in the UK will be able to bring a challenge, whether by way of appeal or judicial review, before removal, to a decision that they had engaged in TOEIC fraud. It had previously been the case that any such challenge would generally be refused permission to apply for judicial review because of the availability of an out-of-country appeal as an alternative remedy.

This decision provides some limits to the straitjacket in R (Lim) v SSHD [2007] EWCA Civ 773, [2007] All ER (D) 402 (Jul), by setting out circumstances in which the availability of an out-of-country appeal will not be an appropriate alternative remedy.

Moreover, the court’s approach to Article 8 of the European Convention on Human Rights (ECHR) is of great significance. The Secretary of State had long relied on the decision of the Supreme Court in Patel v SSHD [2013] UKSC 72, [2014] 1 All ER 1157, as a basis for saying, in effect, that students do not have Article 8 rights. The Court of Appeal concluded that, in fact, properly considered, the authorities demonstrate that ‘persons admitted to this country to pursue a course of study are likely, over time, to develop a private life of sufficient depth to engage Article 8’. Whether Article 8 is engaged in any individual case will be a question of fact.

How helpful is this judgment in clarifying the law in this area? Are there any remaining grey areas?

The judgment is extremely helpful in clarifying the law. These appeals were expressly identified as lead appeals to deal with the consequences of the decision of the Supreme Court in Kiarie and Byndloss v SSHD [2017] UKSC 42, [2017] All ER (D) 70 (Jun), for the TOEIC litigation. The Court of Appeal had previously held that the decision in Lim had the effect that an out-of-country appeal would require that permission should be refused in such cases (R (Mehmood) v SSHD; R (Ali) v SSHD ([2015] EWCA Civ 744, [2015] All ER (D) 164 (Jul)).

The remaining grey areas arise in respect of decisions made following the coming into force of the Immigration Act 2014 (IA 2014), when a decision to remove under section 10 of the Immigration and Asylum Act 1999 does not require that a person has committed deception. Instead the provisions for curtailment of leave are to be found in the Immigration Rules themselves, and the new section 10 merely provides a power to remove a person with no leave. No issue of precedent fact arises in the legislation. It is arguably unclear therefore, where IA 2014 applies, to what a person faced with an allegation of fraud is entitled.

The answer in my view lies in a careful reading of the Ahsan judgment. It is clear that of central importance in such a case is the question of whether Article 8 of ECHR is engaged. Where it is, and where the allegation of fraud is relevant to the decision to refuse leave or to remove, an applicant will be entitled to challenge that decision on the basis that it is a breach of Article 8 of ECHR by way of judicial review.

The question then arises as to what the standard of review should be in such a case. The decision in R (on the application of Nawaz) v Secretary of State for the Home Department (ETS: review standard/evidential basis) [2017] UKUT 00288 (IAC), [2017] All ER (D) 103 (Jul), must be revisited. It is difficult to square the decision in that case that the court should not consider the facts underlying a curtailment decision or hear evidence from the individual himself, with the findings in Ahsan that, where Article 8 of ECHR is engaged, an out-of-country appeal in which no evidence is heard does not satisfy the procedural requirements of Article 8 of ECHR for that very reason. Such an appeal would in fact provide more protection than an in-country judicial review on pure Wednesbury grounds that did not investigate the facts, as envisaged by Nawaz. It is instructive that the court in Ahsan did not endorse the Wednesbury approach in R (Giri) v SSHD [2015] All ER (D) 323 (Jul), [2016] 1 WLR 4418, insofar as cases in which Article 8 of ECHR is engaged are concerned.

It is clear from the decision in Ahsan that in a case in which Article 8 of ECHR is engaged, and the sole basis on which leave was curtailed or refused was the allegation of fraud, the question of whether the decision was proportionate, will turn simply on whether the allegation is true. It follows inexorably from the reasoning in this case, and the intrinsically fact-sensitive nature of TOEIC cases, that the court should investigate the issue for itself including hearing oral evidence. This reflects Lord Wilson’s timely reminder in Kiarie that ‘…even in the course of a judicial review, the residual power of the court to determine facts, and to that end to receive evidence including oral evidence, needs to be recognised’.

What are the practical implications of the judgment? What should practitioners be mindful of when advising in this area?

The court was clear that the common law provides as much protection as the ECHR in respect of fair hearings, but the implications of that approach are difficult to discern.

What is absolutely clear is that in any case in which Article 8 of ECHR is engaged, practitioners should set that out immediately. It is the fact of the engagement of the protected right that gives rise to the procedural protections that flow from it.

How does this case fit in with other developments in this area of the law? Do you have any predictions for future developments in this area?

This case may be of further significance because of the government’s general approach of stripping migrants of appeal rights despite the importance of the matters in issue. The tribunal is an efficient and cheap way to determine whether decisions affecting the lives of migrants have been correctly made, but the government is increasingly unwilling to allow the decisions of civil servants to be criticised even when demonstrably wrong (for example by the abolition in 2014 of all rights of appeal save in human rights/protection cases).

It may be that the void left behind will gradually be filled by judicial review. If so that will be expensive—judicial review claims are defended by counsel rather than the civil servant presenting officers in the tribunal, and is moreover a costs jurisdiction (unlike the appeals system).

Interviewed by Alex Heshmaty.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.