Latest on TOEIC/ETS cases - Court of Appeal case of Khan
Those familiar with TOEIC/ETS deception cases will be aware that these cases have led to a considerable amount of litigation. The latest Court of Appeal case of Khan & Ors v Secretary of State for the Home Department  EWCA Civ 1684 follows from the relatively recent Court of Appeal case of Ahsan v The Secretary of State for the Home Department (Rev 1)  EWCA Civ 2009. In Ahsan, it was held that an out-of-country appeal in a TOEIC/ETS deception was not an adequate alternative remedy when considering whether to grant relief following a Judicial Review claim. Ahsan had considered s.10 of the Immigration and Asylum Act 1999 (‘the 1999 Act’) before it was amended by the Immigration Act 2014.
Khan concerned three appellants whose application for further leave was refused or leave was curtailed following a change in s.10 of the 1999 Act, which meant that they did not have a right of appeal from within or outside of the UK. The only way to challenge a decision alleging deception was therefore by way of Judicial Review. Given that an allegation of TOEIC/ETS deception is highly fact-sensitive, the courts have repeatedly observed the undesirability of challenging cases of this nature in Judicial Review proceedings that was supervisory in nature.
The conclusion in Khan was to approve a compromise that had been agreed by the appellants and the Secretary of State for the Home Department (‘SSHD’). Similar to what was suggested in Ahsan, individuals whose application for further leave was refused or leave was curtailed without a right of appeal could make a human rights claim to the SSHD if they have an appreciable private/family life so as to engage Article 8 ECHR. In the event that the human rights claim was refused, and subject to any issue of certification under s.94 of the Nationality, Immigration and Asylum 2002 Act, the individual would have an in-country right of appeal where the deception allegation can be considered in full by a fact-finding First-tier Tribunal Judge (‘FtTJ’).
Assuming that the FtTJ finds that the individual did not cheat in the TOEIC Speaking test, the SSHD confirmed the following principles which would apply to TOEIC/ETS deception cases:
First, in all cases, individuals will not be disadvantaged by any gap in their continuous lawful residence in the UK if an individual is vindicated in the courts following an erroneous TOEIC/ETS deception allegation.
In the event that leave was curtailed: if the original uncurtailed leave is extant by the time the appeal concluded with a finding that the individual had not used deception, the SSHD will withdraw the curtailment decision. This would mean that the original leave remains extant and the individual is free to make an in-time application for further leave to remain without being disadvantaged by the previous decision to curtail leave.
In the event that leave was curtailed: if the original uncurtailed leave is expired by the time the appeal concluded with a finding that the individual had not used deception, the SSHD will provide that individual with an opportunity to make a further application. The withdrawal of a curtailment decision would not make a difference as the original leave would have expired in any event.
In the event that an application for further leave was refused: if an in-time application for further leave to remain was refused on ETS grounds but an appeal against that decision found that the individual had not used deception, the SSHD will withdraw the refusal decision. This will mean that the individual’s application (which was initially refused) will remain outstanding. The SSHD will then provide the individual with a reasonable opportunity to make any necessary changes or updates to their outstanding application. The individual will not be disadvantaged due to a deception allegation which was not upheld by the courts in any future application.
The rationale behind this compromise is, in part, that those who have had their leave curtailed or refused due to a TOEIC deception allegation can have that point considered in full by a fact-finding FtTJ by making a human rights claim. There is a consensus that a fact-finding Tribunal is best suited for dispute of this nature. At §27 of Khan, the SSHD noted that Presenting Officers would be instructed to request the FtTJ to make a finding on the deception allegation as part of the fact finding on the human rights claim. Whilst acknowledging that the FtTJ cannot be bound by this request, Khan endorsed the encouragement that FtTJs make a finding of fact on the deception allegation (at §40).
Whilst this offers an alternative course of action to those who had their application refused or whose leave was curtailed, it only does so if the individual has a sufficiently strong private/family life so as to engage Article 8 ECHR. For example, if a Tier 4 (General) Migrant who has only been in the UK as a student for 2 years makes an extension application which is refused solely due to an allegation of deception, it is difficult to see how that individual could make a human rights claim, the refusal of which would result in an in-country right of appeal. After all, exercising the right of appeal is the actual aim of the fresh human rights claim given the likelihood of refusal where TOEIC/ETS deception is alleged. For individuals with very limited private/family life in the UK, therefore, it may remain appropriate to challenge the decision by issuing Judicial Review proceedings.
The alternative course of action, though practical in many respects, falls short of being the perfect solution. There are huge cost implications in having to make a fresh human rights application – an FLR(FP) application at present is £1,033 plus an additional £500 for the Immigration Health Surcharge. Furthermore, making a fresh human rights claim in order to have the TOEIC/ETS deception allegation considered by a FtTJ can take considerably longer than Judicial Review proceedings. From making a fresh human rights claim to having an appeal before the First-tier Tribunal could take some 18 months. Judicial Reviews generally take about 9 – 12 months. The difference in the length of time to resolve the dispute could be particularly prejudicial to individuals without leave. Whilst the SSHD undertakes to not unfavourably treat those vindicated before the FtTJ with regard to any gap in their lawful residence, the individual would still be subject to the SSHD’s hostile environment during the entire application and appeal process.
In reality, what may happen is that individual in these circumstances would both issue Judicial Review proceedings and make a fresh human rights claim, thereby incurring further costs and there being no noticeable reduction in cases pending before the Upper Tribunal. In any case, any individuals faced with an adverse decision from the SSHD where no right of appeal exists, they would be wise to seek professional legal advice from a reputable lawyer.
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