A finding of historical injustice arising from an erroneous allegation of deception in a Test of English for International Communication (TOEIC) test is not, by itself, sufficient to establish a right to settlement. The Court of Appeal clarified this in Secretary of State for the Home Department (SSHD) v Hossain [2026] EWCA Civ 1310.
The Court held that the Upper Tribunal (UT) judge was wrong to conclude that Mr Hossain "unquestionably" fell within the class of individuals entitled to the remedy discussed in Ahsan and others v SSHD [2017] EWCA Civ 2009. His case instead required consideration of the totality of the circumstances, rather than the application of Ahsan as an absolute rule.
Mr Hossain, a Bangladeshi national, entered the UK as a Tier 4 student in October 2009. In May 2014, his application for further leave to remain was refused solely on the ground of alleged deception in an English-language test. He was issued with a notice that he was liable to removal under section 10 of the Immigration and Asylum Act 1999. His application for judicial review of that decision was refused and certified as totally without merit. In December 2015, he absconded from immigration bail by failing to comply with reporting requirements.
Mr Hossain claimed asylum in July 2018 and applied for leave to remain on human rights grounds in January 2021. In March 2023, the First-tier Tribunal allowed his appeal against the refusal of the latter application, finding that he had not used deception in the English-language test, as alleged in 2014. The SSHD subsequently granted him 30 months' limited leave to remain in November 2023. His application for indefinite leave to remain (ILR), made on 13 December 2023, was refused on 29 December 2023. The UT quashed that refusal, prompting the SSHD's appeal. For readers unfamiliar with the TOEIC scandal, its background is set out in Ahsan.
The SSHD appealed on two grounds (para. 37): first, that the UT had misunderstood or misapplied the guidance in Ahsan and the scope of the SSHD's position recorded in Khan and others v SSHD [2018] EWCA Civ 1684; and secondly, that the UT judge had impermissibly trespassed upon the discretion vested in the SSHD.
Whilst the SSHD sought to distinguish Mr Hossain's circumstances from those of the appellants in Ahsan and Khan, counsel for Mr Hossain argued that the principles in those cases applied equally to him. Mr Lewis submitted that individuals could not reasonably be expected to "tilt at windmills" by pursuing apparently hopeless legal challenges in the hope that the law might eventually change (para. 46). It would therefore, he argued, be unjust to treat Mr Hossain less favourably than the appellants in Khan merely because he had no outstanding judicial review claim when he made his human rights application in 2021.
The Court distinguished Mr Hossain's case from Ahsan and Khan, emphasising the caveats included by Underhill LJ in Ahsan. The guidance was not intended to lay down a "hard and fast rule". In particular, the suggestion that the SSHD should exercise future discretion on the basis that an applicant had retained leave was qualified by the words "other things being equal" (para. 49). The outcome was therefore a matter for a fact-specific exercise of discretion, rather than an automatic entitlement to a particular remedy (para. 50). Nor did the consent orders in Khan bind the SSHD to the same outcome in other cases (para. 51).
The Court accordingly found that the SSHD was entitled to take into account Mr Hossain's absconding and the delay in regularising his immigration status (paras 54–55). That did not mean that such conduct would automatically defeat an application for ILR. Separately, the Court was satisfied that the SSHD had properly considered the historical injustice suffered by Mr Hossain and that, in the circumstances, her decision to grant limited leave to remain rather than ILR was rational and lawful (paras 56–57). The SSHD's appeal was allowed, the UT's quashing order set aside and Mr Hossain's judicial review claim dismissed (para. 58).
The Court also clarified that neither Mr Hossain's outstanding application for further leave nor his existing section 3C leave would be affected by the appeal being allowed (para. 59).
The decision comes against the backdrop of continuing litigation arising from the TOEIC scandal. In Hossain & Ors v The Home Office [2026] EWHC 1413 (KB), the High Court considered a different question: the effect of earlier tribunal proceedings on the Home Office's ability to maintain allegations of TOEIC fraud in subsequent civil claims, including issues of issue estoppel and abuse of process. Whilst that case did not concern an entitlement to ILR, both judgments demonstrate that the legal consequences of the TOEIC scandal continue to turn on the particular issues and circumstances before the court.