Following the recent case of Khan & Ors v Secretary of State for the Home Department EWCA Civ 1684, it appears that the long running ETS saga, so called after the English language test provided Educational Testing Service, has come to an end.
It all began in February 2014 when the BBC’s Panorama programme revealed widespread cheating at a number of English language test centres operated by ETS. The Home Office responded by issuing over 40,000 decisions cancelling or refusing the visas of people they claimed had cheated. For full details of the Home Office’s reaction to the revelations, and the resultant litigation, read our Iain Halliday’s post over on the Free Movement blog.
In short, the problem was that not everyone accused of cheating by the Home Office had in fact cheated and those who wanted to challenge the Home Office’s decision and clear their name were required to leave the UK before they could lodge an appeal. McGill & Co had a client in this unfortunate situation. She was issued with a decision in 2014 indicating that there was “significant evidence” that she had cheated in an ETS test.
The first thing we did was to write to the Home Office to deny the accusation and to request that the evidence against her be sent to us so that we could review it. However, the Home Office refused to provide it and maintained that our client must appeal against the decision, cancelling her visa from outside the UK. This approach was found to be unlawful in the case of Ahsan v Secretary of State for the Home Department (Rev 1)  EWCA Civ 2009 in which the Court of Appeal held that those accused of cheating in an ETS English language test must be afforded an in country right of appeal. The decision in Ahsan was followed and endorsed in the recent decision in Khan & Ors.
The Home Office and the Court of Appeal now agree that making a human rights claim, which gives rise to an in country right of appeal, is (and always was) the most appropriate course of action where an allegation of cheating in an ETS English language test has been made. This is precisely what was done in our client’s case yet the Home Office sought to deprive her of an in country right of appeal at every juncture.
The human rights claim was made back in September 2014, together with a request that the Home Office issue a new decision with an in country right of appeal, in accordance with their policy in force at that time (a solution the Court of Appeal noted in Ahsan that “only the most sophisticated might have been aware of”). This request was ignored and the claim remained outstanding when the appeal regime changed in April 2015, with the result that a refusal decision would (ordinarily) attract an in country right of appeal.
However the Home Office certified the claim as clearly unfounded, with the result that only an out of country appeal could be lodged. Following a threat of judicial review the Home Office agreed to reconsider this decision. They then issued a decision which purported to be a refusal to treat further submission as a fresh claim (which has the effect of depriving an applicant of any right of appeal). Despite agreeing to reconsider the certification decision, the decision had not formally been withdrawn. The Home Office treated the submission of further documents sent at their request as “further submission” within the meaning of paragraph 353 of the immigration rules, and decided these further submissions did not constitute a fresh claim. Yet there had only even been one human rights claim; the case never should have been dealt with under the further submissions/fresh claim procedure.
The case finally reached the First-tier Tribunal on the basis that, despite attempting to issue a decision refusing to treat further submissions as a fresh claim, the language used indicated that it was in fact a refusal of a human rights claim. In such circumstances, in accordance with the case of Sheidu (Further submissions; appealable decision)  UKUT 412 (IAC), there is a right of appeal to the Tribunal.
Over two and a half years after the decision alleging fraud had been issued, our client had her day in court. Despite having claimed, on numerous occasions, that there was “significant evidence” against her, the Home Office failed to produce this evidence prior to the hearing. The Tribunal found that the Home Office had failed to establish that she had cheated. She was eventually (after the Home Office’s unsuccessful attempt to appeal to the Upper Tribunal) granted leave to remain in the UK, a total of three and a half years after the initial decision. This was a great result however it was only achieved after years of protracted correspondence with the Home Office and the Tribunal, during which time our client was subject to the (now infamous) hostile environment; unable to work, rent property, travel abroad, or access non-emergency healthcare.
Given that the solution to the whole debacle now proposed by the Home Office and endorsed by the courts is to allow human rights appeals to proceed to the First-tier Tribunal it is somewhat frustrating that so many hurdles were placed in the way of our client pursuing this sensible and pragmatic solution back in 2014. It would have been nice if the Home Office (and the courts) had recognised the need for an in country right of appeal in cases such as this at an earlier date.
We understand how important immigration issues are for our clients, and so we always strive to provide a comprehensive, efficient and superior service. With offices in Glasgow and Edinburgh, we cover all areas of Scotland and throughout the UK, as well as undertaking applications for entry clearance to the UK made from abroad.
"A market leader for specialist immigration and human rights law in Scotland’, McGill & Co’s ‘excellent and prompt’ team assists private clients with all aspects of immigration and nationality law, including business, investor and entrepreneur migration, sponsorship licensing, family migration, and asylum and refugee work."
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