On 5 December the Court of Appeal issued its judgement in the joined cases of Ahsan and others v SSHD [2017] EWCA Civ 2009, addressing the rights of the many hundreds of foreign students accused of having fraudulently taken English language tests in the UK.
Primary legislation had worked against each of the appellants, all of whom (for various reasons) were denied in-country appeal rights. This being the case, could they look to judicial review to challenge the finding of fraud against them, rather than be forced to make a separate human rights claim or wait to appeal from their own country?
Their legal teams mounted a two-pronged attack, relying on article 8 ECHR as well as common law arguments. The human rights challenge, referencing article 8, differed from the usual approach to such cases; instead, Stephen Knafler QC “emphasised that we were not in this kind of case concerned with the familiar balancing exercise of weighing the state’s interest in maintaining an orderly system of immigration control against the interests of the individuals in question: [his client HK] was entitled by the Rules to be here unless she had cheated.” Following the decision of the Supreme Court in R(Kiarie & Byndloss) v SSHD [2017] UKSC 42, article 8 in its procedural aspect required that a fair procedure for the determination of that question be available.
At common law, he submitted, since Kiarie & Byndloss, it was now established that, in a case where oral evidence was central and the opportunity to give such evidence by video-link facilities was not realistically available, an out-of-country appeal did indeed afford “a materially inferior right of access” to justice. Lord Justice Underhill, while making the point that not all students coming to the UK will develop a private or family life such as might be protected by Article 8 ECHR, rejected the Secretary of State’s submissions in concluding that “an out-of-country appeal would not satisfy the procedural requirements of article 8. Such a breach of the Appellants’ rights can be avoided by allowing them to challenge the removal decisions in their cases by way of judicial review.”
Turning to the common law case – relevant where a student hasn’t gained article 8 rights – Underhill LJ distinguishes earlier Court of Appeal decisions which found that an out-of-country appeal was in general sufficient remedy in a TOEIC case. He stops short of laying down his own general rule, however, finding that where fraudulent language testing is alleged, evidence is needed to show that a case “could not be fairly decided without hearing their oral evidence, and also that facilities for giving such evidence by video-link were not realistically available.”
The judgement gives students affected by TOEIC decisions an opportunity to re-open their case, if they have been removed from the UK without being given the chance to appeal or judicially review the allegation of fraud against them. If you would like to speak to our specialist immigration team about your own case, call us now on 0044 161 234 6800.