Ahsan v The Secretary of State for the Home Department (Rev 1), Court of Appeal - Civil Division, December 05, 2017, [2017] EWCA Civ 2009

Resolution Date:December 05, 2017
Issuing Organization:Civil Division
Actores:Ahsan v The Secretary of State for the Home Department (Rev 1)
 
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Neutral Citation Number: [2017] EWCA Civ 2009

Case No: C2/2016/3726

C8/2016/2333

C8/2016/1072

C8/2016/2209

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM the Upper Tribunal (Immigration and Asylum Chamber)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 05/12/2017

Before:

LORD JUSTICE UNDERHILL

LORD JUSTICE FLOYD

and

LORD JUSTICE IRWIN

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Between:

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Mr Stephen Knafler QC and Mr Greg Ó Ceallaigh (instructed by M & K Solicitors) for Nabeel Ahsan

Mr Stephen Knafler QC and Mr Rowan Pennington Benton (instructed by Farani Javid Taylor Solicitors) for Harwinder Kaur

Mr Michael Biggs (instructed by Mayfair Solicitors) for Rajwant Kaur

Mr Zane Malik (instructed by Universal Solicitors) for Ataullah Faruk

Lisa Giovannetti QC and Colin Thomann (instructed by the Treasury Solicitor) for the Respondent

Hearing dates: 19-21 September 2017

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Lord Justice Underhill

INTRODUCTION

  1. The background to the four appeals before us can be summarised, in bare outline, as follows. The Immigration Rules require applicants for leave to remain in some circumstances to pass a test of proficiency in written and spoken English. The principal form of approved test is the ``Test of English for International Communication'' (``TOEIC'') provided by a US business called Educational Testing Service (``ETS''). ETS's TOEIC tests have been available at a large number of test centres in Britain. The spoken English part of the test involves the candidate being recorded reading a text, with the recording then being sent to an ETS assessor for marking. In February 2014 the BBC Panorama programme revealed that there was widespread cheating at a number of centres, in particular - though not only - by the use of proxies to take the spoken English part of the test. In response to the scandal, ETS at the request of the Home Office employed voice recognition software to go back over the recordings at the centres in question and try to identify cases in which it appeared that the same person had spoken in multiple tests and could thus be assumed to be a professional proxy. In reliance on ETS's findings the Secretary of State in 2014 and 2015 made decisions in over 40,000 cases cancelling or refusing leave to remain for persons who were said to have obtained leave on the basis of cheating in the TOEIC test.

  2. Although it seems clear that cheating took place on a huge scale, it does not follow that every person who took the TOEIC test in any centre was guilty of it. Large numbers of claims have been brought, either in the First-tier or Upper Tribunals (``FTT'' and ``UT'') or in the High Court, by individuals who say that the Home Office's decision in their case was wrong: this has become known as the TOEIC litigation. There have already been many decisions on both procedural and substantive questions. Criticisms have been advanced of the way in which the Home Office approached the task of identifying individuals who had cheated, and some challenges have succeeded. It is the Secretary of State's case that the proportion of the impugned decisions that was wrong or unfair is very small indeed; but even if that turns out to be the case the individuals affected by those decisions will have suffered a serious injustice.

  3. All four Appellants are the subject of decisions taken by the Secretary of State on the basis (or, in one case, partly on the basis) that they had cheated in TOEIC tests. All of them deny that allegation. The primary question raised by these appeals is whether they can challenge the Secretary of State's decision (whether by judicial review or appeal) from within the UK or whether they can only do so by an appeal brought after they have left the country - a so-called ``out-of-country appeal''. However the route by which that question arises is not the same in all four cases. They fall into two categories.

    (A) The Section 10 cases. Harwinder Kaur (``HK''), Rajwant Kaur (``RK''), and Ataullah Faruk (``AF'') I refer to the Appellants by their initials without any disrespect and as a matter of convenience only, particularly because two of them are Sikh women and so both have the same surname.

    - who are from India, Pakistan and Bangladesh respectively - all came to this country on student visas and were subsequently granted extensions of their leave to remain. Each has been served with a notice that they are liable to removal under section 10 of the Immigration and Asylum Act 1999 (so-called ``administrative removal'') on the basis that they used deception in obtaining those extensions by using a proxy for the spoken part of their TOEIC tests. Each denies doing so and has sought permission from the UT to apply for judicial review of the section 10 decision. Permission was in each case refused on the basis that they have an appropriate alternative remedy in the form of an out-of-country appeal; but permission has been given to appeal to this Court against that refusal. The primary issue raised by the appeals is whether an out-of-country appeal is indeed an appropriate remedy in their cases and others like them. They rely in particular on the recent decision of the Supreme Court in R (Kiarie and Byndloss) v Secretary of State for the Home Department [2017] UKSC 42, [2017] 1 WLR 2380, in which it was held that an out-of-country appeal was not a fair or effective procedure in the (different) context of challenging a deportation order.

    (B) Mr Ahsan's case. Nabeel Ahsan (``NA'') is a national of Pakistan who made an application for leave to remain on human rights grounds, which was refused by the Secretary of State partly on the basis that he had cheated in a TOEIC test. Other things being equal, he would be entitled to an in-country appeal against that decision; but the Secretary of State has certified that his human rights claim is clearly unfounded, which has the effect that any appeal can only be pursued from outside the UK. Permission to apply for judicial review of the certification has been refused by the UT; but permission has been given to appeal to this Court.

  4. HK and NA were represented before us by Mr Stephen Knafler QC, leading Mr Rowan Pennington-Benton in HK's case and Mr Greg Ó Ceallaigh in NA's case. RK was represented by Mr Michael Biggs and AF by Mr Zane Malik. The Secretary of State was represented in all four cases by Ms Lisa Giovannetti QC, leading Mr Colin Thomann. The appeals were expedited because of the number of pending cases potentially affected by them, and that led to some regrettable hiccups in the preparation of the papers; but the quality of the oral submissions from all counsel has been very high. For convenience, and with apologies to their respective juniors, I will sometimes in this judgment refer to Ms Giovannetti's and Mr Knafler's skeleton arguments and written submissions as if they were their sole authors, which I am sure is far from being the case.

  5. I will deal separately with the two categories of appeal identified at para. 3 above, but it will be convenient by way of preliminary (1) to set out the relevant statutory provisions, which to some extent overlap between the two, and (2) to give a short overview of the TOEIC litigation to date.

    (1) THE STATUTORY PROVISIONS

  6. Both section 10 of the 1999 Act and the appeal regime relating to decisions made under it were replaced by changes introduced by the Immigration Act 2014. There are complicated commencement and transitional provisions under which the relevant provisions of the Act came into force at different dates, depending on the circumstances, between 20 October 2014 and 6 April 2015. All three of the section 10 appeals fall to be determined primarily by reference to the old regime; but for reasons which will appear we will have to consider also some aspects of the position under the 2014 Act regime (which remains in force today).

    The Pre-2014 Act Regime

    Section 10 of the 1999 Act

  7. The version of section 10 of the 1999 Act which was in force immediately prior to the 2014 Act read (so far as material) as follows:

    ``(1) A person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an immigration officer, if--

    (a) having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave;

    (b) he uses deception in seeking (whether successfully or not) leave to remain;

    (ba) his indefinite leave to enter or remain has been revoked under section 76(3) of the Nationality, Immigration and Asylum Act 2002 (person ceasing to be refugee) ...; or

    (c) directions have been given for the removal, under this section, of a person to whose family he belongs.

    (2)-(7) ...

    (8) When a person is notified that a decision has been made to remove him in accordance with this section, the notification invalidates any leave to enter or remain in the United Kingdom previously given to him.''

  8. We are in these appeals concerned only with head (b) under section 10 (1) - since submitting a TOEIC test result obtained by cheating plainly constitutes deception - but I have set out the other heads because it should be borne in mind that the issues in these appeals do not affect the entirety of the operation of section 10: head (a) in particular was very commonly employed against overstayers and persons in breach of the conditions of their leave (typically restrictions on the right to work) in circumstances that did not involve any element of deception.

  9. The effect of a decision under section 10 was, as appears from sub-section (8), that the subject and any dependants no longer had any leave to remain in the UK. The absence of leave to remain has a number of consequences, most notably that any one remaining without leave

    (a) is committing a criminal...

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