In the matter of an application for judicial review

Where a removal decision under section 10 of the Immigration and Asylum Act 1999 is challenged on fact-sensitive allegations of TOEIC fraud, an available out-of-country appeal to the First-tier Tribunal will ordinarily be an adequate alternative remedy. Judicial review is unsuitable where resolution requires credibility findings, examination of witnesses and expert evidence, and assessment of technical evidence.

Improper purpose requires solid and persuasive evidence that the statutory power was used for an ulterior purpose. It is not lightly inferred. The legality of that allegation must be assessed by reference to material available when the decision was made, rather than later evidence which may cast doubt on the reliability of the underlying fraud evidence.

The applicant, a Bangladeshi student, obtained a TOEIC English-language qualification used to secure leave to remain. Following information from Educational Testing Service that his speaking test indicated use of a proxy test taker, the Secretary of State decided to remove him under section 10 of the Immigration and Asylum Act 1999. A fresh decision of 19 January 2015 maintained that assessment.

He sought judicial review, alleging improper purpose because the Secretary of State had insufficient evidence of deception, and procedural unfairness because he had not received a prior opportunity to answer the allegation. His evidence included a forensic expert report critical of the disclosed ETS voice-recognition methodology. The central issue was whether judicial review was appropriate notwithstanding his statutory out-of-country appeal to the First-tier Tribunal.

1. The judicial-review application was dismissed. The applicant had an out-of-country appeal to the First-tier Tribunal which was an adequate alternative remedy. The strong general principle stated in R (Mahmood) v Secretary of State for the Home Department [2014] UKUT 00439 (IAC) applied. No special or exceptional factor displaced it.

2. The challenge to the strength and reliability of the ETS evidence was particularly apt for the First-tier Tribunal. It required fact-finding, assessment of the applicant’s credibility and English ability, and potentially oral and expert evidence. A supervisory court could not adequately test the evidence because there had been no cross-examination of the applicant, Home Office witnesses or the expert. The inconvenience of an overseas appeal did not alter that conclusion, particularly as no unfair-hearing objection to that appeal was advanced.

3. The improper-purpose ground failed. Such a ground requires proof that the Secretary of State used the discretionary power for a purpose other than advancing the policy and objects of the statute. It carries an elevated evidential threshold and cannot be lightly inferred. The relevant question was whether the material available when the fresh decision was made provided a sufficient foundation for it. The generic ETS material had sufficient hallmarks of care, thoroughness, expertise and reliability for supervisory-review purposes. The later expert report could not establish that the decision-maker acted for an improper purpose.

4. The number of ETS cases did not justify judicial review as a substitute for the statutory appeal process. Each case depended on its own evidence, credibility and circumstances, and was not apt for determination through a single lead judicial-review decision.

5. The procedural-unfairness ground was moot because of the adequate alternative remedy. It remained open to the applicant to raise it before the First-tier Tribunal as an argument that the decision was not in accordance with the law. That tribunal could decide, in the individual context, whether the requirements of Doody v Secretary of State for the Home Department [1994] 1 AC 531 required an opportunity to make informed representations before the decision.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial-review challenge to the Secretary of State’s fresh removal decision of 19 January 2015 dismissed. The Tribunal held that an out-of-country appeal to the First-tier Tribunal was an adequate alternative remedy.
• Secretary of State: The original removal decision was notified on 25 July 2014. A fresh operative decision maintained it on 19 January 2015.