Potential remedy for TOEIC victims, in accordance with the case law of Khan
By Mohammad Salim, Solicitor of the Senior Courts of England & Wales
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’).
It follows that if 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 Khan, the following agreements were made between the parties;
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 paragraph 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 paragraph 40).
As such, it is advisable that the migrants who did not have right of appeal in their TOEIC issue can rely on Khan and make further submissions if they have established family/private life in the UK under Article 8 of the ECHR.