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Court of Appeal rules appellants in TOEIC appeal are entitled to in-country appeal

Written by
Farhan Farani, Farani Taylor Solicitors
Date of Publication:
05 December 2017

By a unanimous decision, the Court of Appeal has allowed the appeal in Ahsan v The Secretary of State for the Home Department [2017] EWCA Civ 2009.

The background to the four appeals before the court 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.

All four Appellants, including our client, were 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 denied that allegation.

The primary question raised by these appeals was whether they could 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".

By a unanimous decision by the Court of Appeal bench, the appeal was allowed.

The Court of Appeal has also held that in the case, a certification of a human rights claim should be quashed, and the person should be allowed to appeal from within the United Kingdom.

Editor's note: Farani Taylor Solicitors represented the appellant HK in the appeal.