This Court of Appeal judgment affects thousands of international students accused of cheating in English language tests. While it strengthens the right to challenge the Home Office, the fallout is likely to be long-lasting and complicated.
Out of country appeals are not an appropriate remedy for persons whose visas have been cancelled after being accused by the Home Office of cheating in English language tests, the Court of Appeal has decided in Ahsan & Others v Secretary of State for the Home Department [2017] EWCA Civ 2009.
This will come as welcome news for some of the many thousands of persons who the Home Office has accused of using proxy test-takers to pass TOEIC language tests at centres run by ETS.
The ongoing saga of the ETS / TOEIC litigation has been previously covered on my blog here, here, here, here and here. The Court of Appeal in Ahsan lamented: "this very messy and unsatisfactory state of affairs".
Background
The Educational Testing Services ('ETS') was previously an approved language testing contractor for the Home Office's. That was until an investigation by BBC Panorama found fraud on an industrial scale taking place at testing centres run by ETS. The company reviewed its test results to assess the full extent of the cheating and provided names of those suspected to the Home Office, having split the test results into those it deemed "invalid" and "questionable".
In reliance on information supplied by ETS, the Home Office took decisions to cancel the visas of around 40,000 students and to remove them from the UK. Some have been detained and separated from their families. All have lived with the pain and anxiety of being told they have cheated, can no longer stay in the UK and must leave.
The arguments on appeal
The appellants argued that although they were entitled to challenge the Home Office decisions in their cases by an out of country appeal, this was not an adequate remedy because they would be denied the opportunity to give oral evidence in person, in breach of basic standards of fairness and access to the Court or Tribunal. Their applications for judicial review should be allowed to proceed because they had no other effective remedy, they said.
The Secretary of State's position was that an out-of-country appeal was adequate, but even if it wasn't, the appellants could make human rights claims in the UK that would, if refused, give rise to in-country rights of appeal. Their judicial review claims should be refused for this reason.
The appellants relied on the recent UK Supreme Court decisions in R (on the application of Kiarie and Byndloss) v Secretary of State for the Home Department [2017] UKSC 42 (post + video here) and the successful challenge by UNISON to the fees regime in the Employment Tribunal (post + video here), both of which underscored the constitutional right of access to justice.
Key conclusions
(These are helpfully summarised in broad terms by Lord Justice Underhill at § 158 of the judgment for those who require a quick-read).
• A person accused of cheating in ETS/TOEIC cases and who faces a decision to remove them from the UK must have the opportunity to give oral evidence in order that their case is fairly determined by a Court or Tribunal in accordance with the procedural requirements in the right to private and family life in Article 8 of the European Convention on Human Rights (§§ 91, 92) and/or under the common law requirements of fairness and access to justice (§ 94);
• Out-of-country rights of appeal are not an adequate remedy in most cases because facilities for giving oral evidence by video-link are not currently available (§ 98);
• "whether it is realistically possible for evidence to be given by video-link needs to be assessed on a case-by-case basis; but I would encourage the Secretary of State and the UT to take a pragmatic view of what is likely to be the position in typical cases and to use these appeals and Kiarie and Byndloss as a useful benchmark." (§ 90).
• Although the point was not fully argued, there will be certain cases where a person who is served with a removal notice under section 10 of the Immigration and Asylum Act 1999, should make a human rights claim and if necessary pursue an in-country right of appeal to the Tribunal instead of judicial review proceedings, subject to the 3 conditions set out at § 116. Tribunal appeals remain the more appropriate place for resolving deception cases (§ 115).
• Where a human rights claim is certified as 'clearly unfounded' in an ETS case, the Secretary of State must justify why there is no prospect that a person's oral evidence may rebut the allegation of deception (§ 156).
• For those who have brought out-of-country appeals and won, "the Secretary of State ought to take whatever steps were possible to restore successful out-of-country appellants to the position that they would have been in but for the impugned decision." That includes the grant of Entry Clearance to allow them to return to the UK (§ 133).
The Court also clarified the contours of the private life under Article 8 enjoyed by international students in the UK based upon their educational experiences:
a student's involvement with their course and their college can itself be an important aspect of their private life… Whether those and other factors are sufficient to engage article 8 in any particular case will depend on the particular facts, and I would not venture on any generalisations beyond making the trite point that the longer a student has been here the more likely he or she is to have generated relationships of the necessary quality and depth. (§ 87)
Comments
This is a good decision for thousands of international students and their families who have suffered the injustice of being accused of cheating and told they must leave the country before they can challenge the decision.
Well done to the determined lawyers involved in what was clearly a rapidly convened hearing.
In some if not all of these cases, those affected may have been detained and who have already tried and failed to bring judicial review claims or who have left the UK by voluntary departure or enforced removal. Ahsan comes rather too late in the day to be effective in these situations.
Practitioners and persons affected should be alert to the potential arguments from the Secretary of State that the correct way to challenge a removal decision based on an allegation of cheating is to make a human rights claim and then appeal any refusal. However, this argument only applies where the Secretary of State invites a person to make a human rights claim and gives an undertaking to consider it within a reasonable time (such as 28 days) – see § 124.
The case also contains reference (at § 156) to the fact that where a person has not taken the step of obtaining (or requesting) the voice recording of their test results, that is likely to be a consideration that weighs against them. This echos similar though unreported comments by the Upper Tribunal and should be bourne in mind by those challenging deception charges.
What next?
The Home Office is apparently working on developing the use of video-link facilities in the main countries of origin in ETS cases (Pakistan, India and Bangladesh) to help ensure that out-of-country appeals can be done fairly. With a renewed emphasis on testing virtual hearings in the Tribunals, the facilities available could develop from here in the near future and lead to further arguments by the government that out-of-country appeals can be done fairly in these cases.
For cases stayed behind Ahsan, it is likely that the Home Office may argue that some of the challenges that satisfy the three conditions discussed at § 115 should be brought by way of a human rights claim and appeal, rather than judicial review, though the number of such cases is probably limited.