Ahsan v The Secretary of State for the Home Department (Rev 1)

Where a removal decision based on alleged TOEIC deception can only be challenged by an out-of-country appeal, that appeal is not an adequate remedy if the appellant’s oral evidence is necessary and realistic video-link facilities are unavailable. In that situation, fairness at common law and under article 8 requires access to judicial review.

An in-country human-rights appeal may be an adequate alternative only if it will decide the deception allegation, provide substantially the same practical result as quashing the removal decision, and is immediately available or has been promptly offered. A human-rights claim cannot lawfully be certified as clearly unfounded without addressing an arguable claim and the individual’s denial of TOEIC fraud.

Four appellants denied using proxy test-takers in TOEIC English tests. The Secretary of State had made, or relied upon, findings of deception with serious immigration consequences.

Harwinder Kaur, Rajwant Kaur and Ataullah Faruk were served with old-regime removal decisions under Immigration and Asylum Act 1999, section 10. The Upper Tribunal refused permission to seek judicial review because they could bring out-of-country appeals. Nabeel Ahsan challenged the certification of his human-rights claim as clearly unfounded after the Secretary of State refused his application for leave to remain partly on the basis of TOEIC deception.

The common issue was whether the available out-of-country process, or an alternative in-country human-rights appeal, afforded a fair and effective means of determining the disputed allegation of cheating.

1. All four appeals were allowed. The three section 10 appellants were entitled to seek judicial review of their removal decisions. Their cases were remitted to the Upper Tribunal. Mr Ahsan should have received permission to challenge the certification of his human-rights claim; the court indicated that the certificate should be quashed, subject to representations on the final order.

2. An out-of-country appeal was not an effective remedy in these cases. The allegation of deliberate TOEIC fraud was fact-sensitive, serious, and ordinarily required the appellant’s oral evidence. There was no realistic opportunity for these appellants to give that evidence by video-link from their countries of return. Applying the approach in Kiarie and Byndloss [2017] UKSC 42, this deprived them of a fair procedure under article 8 of the European Convention and at common law. The earlier section 10 authorities did not determine that an appeal remained adequate where those practical obstacles had been established.

3. An in-country human-rights appeal could, in principle, be an adequate alternative to judicial review. It had to ensure that the tribunal would determine whether deception occurred; that a successful appellant would be substantively no worse off than if the section 10 decision were quashed; and that an appeal was actually and promptly available. Those conditions were not met. The existing or newly made human-rights claims had not produced an immediate, uncertified in-country appeal.

4. Removal before completion of study does not itself engage article 8. A student may nevertheless have a private life protected by article 8 through relationships and connections formed during lawful residence. In these cases, however, the decisive issue was whether the appellants had cheated, rather than a general proportionality assessment.

5. Mr Ahsan’s certification was unlawful. His claim concerning the disruption to his studies following sponsor-licence revocations was not shown to be wholly unfounded. The decision-maker also failed to address his prior denial of TOEIC fraud. A clearly-unfounded certification in a TOEIC case requires a thorough, individual assessment of the available evidence and an explanation why oral evidence could not affect the outcome.

• Court of Appeal (Civil Division): Allowed the appeals in [2017] EWCA Civ 2009. It granted the three section 10 appellants permission to apply for judicial review and remitted their cases to the Upper Tribunal. It held that Mr Ahsan should have been granted permission to challenge the certification of his human-rights claim.
• Upper Tribunal (Immigration and Asylum Chamber): Refused permission for Harwinder Kaur, Rajwant Kaur and Ataullah Faruk to seek judicial review of their section 10 removal decisions, principally because of the availability of out-of-country appeals. It also refused Mr Ahsan permission to challenge the certification of his human-rights claim.