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Judicial Review in ETS TOEIC deception cases

In the case of R (Mehmood and Anor) v The Secretary of State for the Home Department [2015] EWCA Civ 744 heard on 7 July 2015, the Court of Appeal confirmed that Judicial Review is not appropriate in challenging ETS deception cases where no ‘special’ or ‘exceptional’ circumstances exist – the right to an out-of-country appeal is an adequate remedy.

The Appellants, both nationals of Pakistan had made applications to extend their student visas prior to the expiration of their leave. The Secretary of State refused their applications and invalidated their existing leave by service of removal decisions under section 10 of the Immigration and Asylum Act 1999. Both Appellants lodged judicial review claims challenging the removal decisions.

The Court of Appeal considered three main issues in this case:

  1. The right to an in-country of appeal where a removal decision has been made at the same time a person’s leave has been invalidated by the Secretary of State under s.10 of the Immigration and Asylum Act 1999.
  2. The circumstances where it would be appropriate for a matter to be dealt with by way of judicial review if there is a right to only an out-of-country of appeal and
  3. Whether the sequence of the decisions invalidating leave and refusing an application for leave has a bearing on whether a person is entitled to an in-country right of appeal.

Mr Mehmood

Mr. Mehmood made an application for a variation of his leave to remain on 31 October 2013, before his leave was due to expire on 19 November 2013. On 4 December, a decision to remove Mr. Mehmood from the UK was made on the basis that he had been working in breach of his conditions of leave. The notices stated that he was entitled to an out-of-country of appeal. On 10 January 2014, the Secretary of State refused Mr. Mehmood’s application to vary his leave on the same basis.

Mr Ali

Mr. Ali applied to vary his leave on 29 December 2013. A decision was made to remove him on the basis that he had used deception in his application for variation of leave. It was alleged that his Test of English for International Communication (TOIEC) certificate issued by Educational Testing Services (ETS) was obtained by a proxy test taker.

After a BBC documentary by Panorama which exposed that there was widespread fraud being used in the taking of English language tests, ETS reviewed all its tests using voice recognition software and anti-fraud staff trained in voice recognition. As a result, ETS concluded that thousands of tests had been taken by proxy test takers. The Secretary of State relied on, as they did with many other cases, witness statements from a civil servant with responsibility for overseeing delivery of secure English language testing and the Assistant Director responsible for coordinating compliance visits to educational sponsors.

In the case of R (Gazi) v Secretary of State for the Home Department (ETS – judicial review) [2015] UKUT 00327 (IAC) these witness statements were described as ‘generic’ as they did not explain why ETS had invalidated the certificate of a particular person or provide any evidence in relation to the personal circumstances of an individual.

In a letter dated 7 July 2014 served on Mr. Ali on 11 August 2014, he received removal notices. The letter referred to ‘the earlier section 10 removal decision’. The removal decision had been served on Mr. Ali two minutes before the letter refusing his leave to remain was served. Mr. Malik, counsel for the appellants argued that because the date on the letter refusing his application was 7 July 2014, this decision was made before the decision to curtail his leave. He was therefore entitled to an in-country right of appeal.

The Court of Appeal’s analysis

The section 10 question

Mr. Malik argued that there was a difference between leave given by the Secretary of State under section 3 of the 1971 Act and leave that was automatically extended under 3C of the same Act. He contended that this was because the Secretary of State in the latter situation was not free to extend or curtail this leave and that Parliament would not have intended the Secretary of State to have the power to invalidate an automatic extension of leave under section 3C through a section 10 removal decision. Counsel also relied on section 47 of the Immigration and Nationality Act 2006 which makes provision for the removal of persons with leave extended under section 3C of the 1971 Act but does not provide that a removal direction under it invalidates a person’s leave.

The Court held that the provision under section 10(8) of the 1999 Act, that is the notification ‘invalidates any leave previously given to him’ makes clear that from the date of notification, any leave a person had was invalid and did not draw a distinction between leave given under section 3 and leave automatically extended under section 3C. Such a distinction would produce ‘arbitrary results’. The Court also held that no assistance could be drawn from a section 47 removal decision as it deals with a different situation, relating to people that have complied with the terms of their leave but whose application for a variation of their existing leave will be refused for other reasons.

The sequencing question

In Mr. Ali’s case, Mr. Malik argued that the refusal to vary leave and the removal decision itself were two distinct decisions and that the first decision made on 7 July 2014, which gave rise to an in-country right of appeal, could not be invalidated by a previous removal decision.

The Court held that section 4 of the 1971 Act explicitly provides that the power to give or vary leave shall be exercised by notice in writing. The fact that the Secretary of State may have made the decision to refuse the application on 7 July 2014 was not relevant. What was legally relevant was the date and time of service of the notice.

The alternative remedy question

The Court stated that it was common ground that it was only in ‘special’ or ‘exceptional’ circumstances that a court would allow a substantive challenge to a Section 10 removal decision to proceed by way of judicial review, rather than through the statutory appeal process – in this case, an out-of-country appeal. Mr. Malik argued that such circumstances existed in both cases, although more so in Mr. Ali’s case.

Lord Justice Beatson also stated that where there are disputes of facts, as was the case here, these are rarely likely to constitute ‘special or exceptional circumstances’, partly because judicial review was not suited to resolve such issues. In addition, matters of procedural unfairness could be considered in an appeal and were rarely likely to constitute ‘special or exceptional’ factors.

Mr. Malik contended that there were 5 reasons which made Mr. Ali’s case special or exceptional. Namely:

  1. The removal decision was taken without prior notice and Mr. Ali was therefore unable to make representations
  2. The decision was taken without ‘worthwhile evidence’
  3. The removal decision was taken in order to ‘stifle’ the in-country appeal that Mr. Ali would have otherwise had against the refusal of his application to vary leave
  4. If he was wrong on the section 10 point, Mr. Ali had no appeal against the refusal of application for a variation and apart from judicial review, had no means of challenging it
  5. Mr. Ali was in the middle of his course and would be humiliated if removed from the UK. He had offered to take another test. He would not be able to adequately defend himself if he had to do so from another country.

In relation to Mr. Mehmood’s case, the primary submission advanced by Mr. Malik was that his removal decision was taken in order to ‘stifle’ the in-country appeal that Mr. Mehmood would have had against the decision to refuse his application to vary his leave. If he was wrong on the section 10 decision, there was no means of challenging it (save for judicial review) as there was no appeal against it.

The Court referred to R (Anwar and Adjo) v Secretary of State for the Home Department [2010] EWCA Civ 1275 where the words ‘stifle an appeal’ were used but distinguished that case to that of the Appellants on the basis that here, there were no findings of facts made by the tribunal and the Secretary of State was not trying to re-litigate a matter after losing an appeal.

With respect to the no alternative remedy question, Mr. Malik contended that if the section 10 removal decision invalidated the Appellants’ leave, they had no appeal against the refusal to vary their leave. Therefore even if the section 10 notices were successfully challenged in out-of country appeals, the refusal of the applications to vary would still stand unless they were set aside by judicial review proceedings. He argued that there was no difference between an application for a variation of leave and an application for further leave to remain

The Court rejected this submission stating that the appellants had not make free standing applications for leave and that although pending the outcome of their appeals, the refusal to vary leave would not be set aside, the issues relating to the application to vary would be closely connected to the issues that arise in relation to the legality and merits of the section 10 notices. If successful in their challenge, the Secretary of State would be obliged to give proper effect to the findings of the tribunal. If she did not, there would be strong grounds for judicial review.

With respect to the ‘worthwhile’ evidence point in Mr. Ali’s case, the Court held that it could not be said that the Secretary of State had no worthwhile evidence to satisfy herself that this was an appropriate case to make a removal direction and that this amounted to a special or exceptional factor justifying judicial review proceedings. Lord Justice Beatson stated that the appeals system “specifically envisages that challenges to the factual accuracy of evidence take place through an out-of country appeal and the information which informed the Secretary of State’s decision as to the deception was put before Mr. Ali, albeit in the text of the refusal decision rather than the removal decision”.

The Court held that although leaving the UK would lead to great expense and inconvenience, this was not in itself ‘special’ or ‘exceptional’. Lord Justice Sullivan gave serious ill health as an example of what might constitute such a factor.

In relation to Mr. Ali not receiving prior notice of the removal decision, the Court held that this did not prevent him from responding to the notice or by making further representations. In any event, such matters relating to procedural fairness could adequately be dealt with by the appellate process.

The appeals of both Appellants were therefore dismissed.

This case will be of great disappointment to the many individuals who have had their leave cancelled on the basis that deception had been used in an English language test. Application for judicial review in such cases had been stayed by the Upper Tribunal pending the outcome of this case. Claimants are now receiving letters from the Upper Tribunal informing them that the stay has been lifted and that they have seven days to set out reasons why the case has merit before a final determination is made. Unless there are ‘special’ or ‘exceptional’ factors in a case, the only remedy for an individual is an out-of-country appeal. Although sadly this will cause great inconvenience and expense, the observations set out in Gazi about the generic nature of evidence will be of some assistance on appeal.

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