Factual and Procedural Background
These three appeals were heard together to address common legal issues arising from allegations that individuals obtained an English language certificate, known as the Test of English for International Communication ("TOEIC") certificate, through deception, specifically by using proxy test-takers. The results of such tests were submitted to support applications for leave to remain in the UK. The factual background includes revelations of widespread fraud uncovered by a media investigation, leading the Secretary of State to curtail leave to remain in numerous cases and refuse subsequent applications on grounds of deception. These cases are referred to as the "ETS" cases, named after the institution providing the certificates: Educational Testing Services.
Legally, these cases follow the Court's decision in Ahsan v Secretary of State for the Home Department [2017] EWCA Civ 2009, with a significant difference arising from legislative changes introduced by the Immigration Act 2014. Notably, post-2014, there is generally no statutory right of appeal against decisions related to deception, limiting challenges to judicial review.
Permission to appeal was granted in three linked cases, each involving appellants who are nationals of Bangladesh and whose leave to remain was curtailed or refused due to allegations of fraudulent TOEIC certificates. The appellants are referred to as Mr. Khan, Mr. Islam, and Mr. Hossain. Each pursued judicial review and appeals with varying procedural histories, including refusals and grants of permission to appeal.
In the lead-up to the hearing, the Secretary of State proposed resolving these appeals by compromise, resulting in agreed consent orders for two cases and a remaining dispute over costs in the third. The parties agreed that a short judgment explaining the basis of compromise would assist in the management of similar pending cases, of which there are many both in this Court and the Upper Tribunal.
Legal Issues Presented
- Whether, in the absence of a statutory right of appeal due to the Immigration Act 2014, an administrative review or judicial review is the appropriate mechanism to challenge decisions alleging deception in obtaining TOEIC certificates.
- The scope and appropriateness of fact-finding by the First-tier Tribunal (FTT) in human rights appeals where deception is alleged.
- The procedural and substantive implications of the Court’s decision in Ahsan for cases involving alleged TOEIC fraud.
- The proper approach to costs in cases that settle following procedural and substantive developments in the law.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Ahsan v Secretary of State for the Home Department [2017] EWCA Civ 2009 |
Clarification of appeal rights post-Immigration Act 2014 and the availability of human rights appeals to the FTT in cases of alleged deception. |
Served as the legal foundation for proposing an alternative remedy route through human rights appeals rather than judicial review, influencing the settlement of the appeals. |
| ZN (Afghanistan) and Anr v Secretary of State for the Home Department [2018] EWCA 1059 |
Framework for awarding costs in judicial review proceedings, including the rationale for costs following the event and categories of claims. |
Guided the Court’s reasoning on the appropriate costs order in the Hossain case, emphasizing the need to avoid satellite litigation and considering partial success and conduct. |
| R (on the application of M) v Croydon London Borough Council [2012] EWCA Civ 599 |
Legal principles governing costs awards in judicial review claims, including categorization of claim outcomes and discretion in costs orders. |
Referenced to support the analysis of costs categories and the Court’s discretion in awarding costs in the present judicial review proceedings. |
Court's Reasoning and Analysis
The Court considered the unique context of the ETS litigation, acknowledging the legislative changes from the Immigration Act 2014 which removed most statutory appeal rights, leaving judicial review as the primary challenge mechanism for deception findings. However, the Court recognized that following the decision in Ahsan, an alternative human rights appeal route to the FTT is available and preferable in these cases.
The Court approved a compromise whereby appellants would be granted permission to appeal and judicial review, but would then withdraw judicial review claims, proceeding instead through human rights appeals that would include fact-finding on the deception allegations. The Secretary of State agreed to treat successful appellants as having continuous leave and to provide reasonable opportunities to apply for further leave, waiving related fees and charges.
Regarding costs, the Court analyzed submissions in light of established principles, noting that while the appellants were not wholly successful in the traditional sense, the settlement reflected a fair and pragmatic resolution influenced by the Ahsan decision. The Court emphasized avoiding costs disputes becoming proxy hearings on merits and stressed the importance of consistency in costs orders across the linked cases.
Holding and Implications
The Court granted permission to appeal and judicial review in all three cases and approved consent orders whereby the appellants withdrew their judicial review claims to proceed via human rights appeals to the First-tier Tribunal.
The Court ordered that the Secretary of State would pay the appellants' costs from 31 January 2018 onward, subject to detailed assessment if not agreed, except that the costs order in the Hossain case was reserved for further consideration due to dispute.
This decision establishes a framework for handling similar ETS fraud cases, emphasizing the human rights appeal route as an appropriate remedy post-2014 legislative changes, and promotes consistency and fairness in costs awards. It does not set new legal precedent on the substantive issues of deception but provides procedural clarity and practical guidance for the resolution of a large number of pending cases.