Ahsan v The Secretary of State for the Home Department

Factual and Procedural Background

The appeals concern decisions made by the Secretary of State for the Home Department ("the Secretary of State") cancelling or refusing leave to remain in the UK on the basis that appellants had cheated in the Test of English for International Communication (TOEIC) by using proxies for the spoken English test. The cheating scandal was revealed by a media investigation, prompting the Secretary of State to rely on voice recognition software analyses provided by Educational Testing Service (ETS) to identify fraudulent test results. Over 40,000 cases were affected by these decisions.

Four appellants are before the Court: three individuals ("Section 10 Appellants") who were served with removal notices under section 10 of the Immigration and Asylum Act 1999 on the basis of deception and denied the allegations; and one appellant ("Mr Ahsan") whose human rights claim was certified as clearly unfounded, restricting his appeal rights to out-of-country appeals. The central procedural issue is whether these appellants can challenge the decisions from within the UK or only by out-of-country appeals.

The appeals arise against the backdrop of extensive litigation ("TOEIC litigation") involving challenges to the Secretary of State's decisions, with many cases addressing procedural and substantive matters. The Secretary of State maintains that most decisions were correct, but accepts that some individuals may have suffered injustice.

Legal Issues Presented

1. Whether appellants subject to removal decisions under section 10 of the Immigration and Asylum Act 1999 based on alleged TOEIC cheating can challenge those decisions by judicial review from within the UK or only by out-of-country appeal.
2. Whether an out-of-country appeal constitutes an effective and fair remedy, particularly where oral evidence of the appellant is necessary and video-link facilities are not realistically available.
3. Whether appellants can obtain an in-country appeal by making a human rights claim and, if so, whether such a claim is an adequate alternative remedy.
4. Whether the certification of human rights claims as clearly unfounded, restricting appeals to out-of-country proceedings, is lawful in cases where the appellant denies cheating.

Arguments of the Parties

Appellants' Arguments

• The appellants contend that their removal decisions should be challengeable by judicial review within the UK because the out-of-country appeal regime is ineffective and unfair, particularly as oral evidence is essential to their cases and video-link facilities in their countries of removal are not realistically available.
• They argue that the denial of an effective in-country hearing breaches their rights under Article 8 of the European Convention on Human Rights and the common law right of access to courts.
• The appellants submit that the human rights claim route to an in-country appeal is not an adequate alternative remedy because either no human rights claim has been made, no decision has been taken on such claims, or claims have been certified as clearly unfounded.
• In Mr Ahsan's case, it is contended that the certification of his human rights claim was unlawful because the Secretary of State failed to properly consider his denial of cheating and the interruption to his studies caused by the revocation of his sponsor's licence.

Secretary of State's Arguments

• The Secretary of State submits that judicial review is a remedy of last resort and that out-of-country appeals are generally an adequate alternative remedy for section 10 removal decisions, including those based on TOEIC cheating allegations.
• She contends that appellants can make a human rights claim at any time, which, if refused without certification as clearly unfounded, provides a right to an in-country appeal.
• The Secretary of State accepts that video-link facilities may not be realistically available in all countries but argues that this is a case-by-case assessment and that improvements are underway.
• Regarding certification, the Secretary of State maintains that claims can be certified as clearly unfounded if there is no real prospect of success, and that such certification limits the right to in-country appeal, which is lawful.
• In Mr Ahsan's case, the Secretary of State argues that his human rights claim was hopeless and the certification lawful, given his insufficient length of residence and the availability of study opportunities outside the UK.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by outlining the statutory framework governing removal under section 10 of the Immigration and Asylum Act 1999 and the appeal rights under the pre-2014 and post-2014 regimes. It noted the complexity arising from transitional provisions and the interaction between removal decisions, human rights claims, and appeal rights.

The Court accepted that the Secretary of State's evidence demonstrated widespread cheating at certain test centres, including "fraud factories," and that cheating allegations are fact-sensitive, often requiring oral evidence for fair resolution.

On the core issue of whether judicial review from within the UK was available, the Court applied the principle that judicial review is a remedy of last resort and only permitted where no adequate alternative remedy exists. It examined the adequacy of out-of-country appeals in the context of TOEIC cheating cases, particularly considering the necessity of oral evidence and the practical unavailability of video-link facilities in the appellants’ countries.

The Court held that where oral evidence is essential and video-link facilities are not realistically available, out-of-country appeals do not afford a fair and effective procedure in breach of Article 8 ECHR and common law rights. This reasoning follows the Supreme Court’s decision in Kiarie and Byndloss, distinguishing previous Court of Appeal decisions that did not consider these procedural fairness issues.

The Secretary of State’s alternative argument that appellants could make human rights claims to obtain in-country appeals was considered. The Court identified three conditions for such a route to be an adequate alternative remedy: (A) the human rights appeal must involve determination of the deception allegation; (B) a successful human rights appeal must place the appellant in no worse substantive position than judicial review quashing the removal decision; and (C) at the time of permission, a human rights claim must have been refused (but not certified) or the appellant must have failed to accept an offer to have a claim decided promptly.

The Court found these conditions were not satisfied in the appellants’ cases. It also held that refusal of permission to apply for judicial review on the basis of a yet-to-be-decided human rights claim was wrong in principle, as appellants would be left in limbo pending Secretary of State decisions.

Regarding Mr Ahsan’s case under the post-2014 regime, the Court analysed the certification of his human rights claim as clearly unfounded. It found the certification unlawful because it did not address his denial of cheating and the interruption to his studies, and the Secretary of State had not demonstrated that his claim was wholly unfounded. The Court observed that certification requires a fact-sensitive and thorough assessment of the evidence, including oral evidence possibilities.

The Court emphasised the importance of ensuring appellants are afforded a fair opportunity to challenge allegations of cheating, given the serious consequences of such findings for their immigration status and reputation.

Holding and Implications

The Court allowed all the appeals.

It granted the Section 10 appellants permission to apply for judicial review within the UK, remitting their cases to the Upper Tribunal for substantive hearings on whether they cheated in their TOEIC tests. This acknowledges that out-of-country appeals are not effective remedies where oral evidence is required and video-link facilities are unavailable.

In Mr Ahsan’s case, the Court quashed the Secretary of State’s certification of his human rights claim as clearly unfounded, allowing him to pursue an in-country human rights appeal. The Court emphasized that certification must be based on a careful, fact-sensitive assessment including consideration of oral evidence.

The decision does not establish a broad new precedent that all out-of-country appeals are ineffective but clarifies that procedural fairness under Article 8 and common law may require judicial review where out-of-country appeals cannot provide a fair hearing. The Secretary of State is encouraged to consider the availability and timeliness of human rights claims and appeals to avoid prolonged uncertainty for appellants.