Khan & Ors v Secretary of State for the Home Department

In disputes about alleged TOEIC deception, the absence of an ordinary appeal against curtailment or refusal of leave may be addressed through a human-rights claim carrying an in-country appeal, subject to certification under the Nationality, Immigration and Asylum Act 2002. Where parties agree a suitable alternative route, the Court may approve consent orders and dispose of proceedings without deciding the deception merits. The First-tier Tribunal may be encouraged to make a factual finding on alleged cheating. For costs, a causal connection with the merits is normally necessary but is not a complete test. A settlement arising from a different remedy does not necessarily constitute substantive success.

Three appeals concerned decisions curtailing or refusing leave to remain on the basis that the appellants had obtained TOEIC certificates through deception, including use of proxy test-takers. The appeals arose from judicial review proceedings in the Upper Tribunal. The legislative changes made by the Immigration Act 2014 meant that the appellants generally had no ordinary appeal against the immigration decisions themselves, although a human-rights refusal could carry an in-country appeal.

Following Ahsan v Secretary of State for the Home Department [2017] EWCA Civ 2009, the parties proposed resolving the cases through human-rights claims and appeals to the First-tier Tribunal. The Court had to decide whether to approve the compromises and, in Hossain, the appropriate costs order. It did not determine whether any appellant had cheated.

Singh LJ gave the leading judgment. Underhill LJ agreed, and McFarlane LJ also agreed, expressly associating himself with the warning against satellite litigation in costs applications.

1. Consent disposal. The Court approved the agreed consent orders. The arrangements provided a human-rights route, further decisions by the Secretary of State and, subject to the agreed terms, an appeal to the First-tier Tribunal. Khan was granted permission to appeal and to pursue judicial review before withdrawing the claim. The appeals in Islam and Hossain were dismissed by consent. The merits of the alleged TOEIC deception were not determined.
2. Fact-finding. The Court endorsed encouragement to the First-tier Tribunal to decide, as a matter of fact in the proposed human-rights appeals, whether each appellant had cheated in the TOEIC test, even if an appeal could be disposed of on another basis.
3. Appeal route. The judgment recorded that, under the post-2014 scheme, curtailment, refusal of leave and a Immigration and Asylum Act 1999 section 10 decision did not themselves carry an ordinary appeal. A refusal of a human-rights claim could carry an in-country appeal, subject to certification under section 94 of the Nationality, Immigration and Asylum Act 2002. The Secretary of State agreed not to certify the claims in these cases.
4. Costs. The causal link between costs incurred and the merits, discussed in ZN (Afghanistan) and Anr v Secretary of State for the Home Department [2018] EWCA 1059, was necessary but not sufficient. The passage was not a general costs test. The Court applied the three-category framework in R (on the application of M) v Croydon London Borough Council [2012] EWCA Civ 599; [2012] 1 WLR 2607: wholly successful claimants will normally receive their costs; partial success often attracts no order; and a compromise not reflecting the claim gives an even stronger case for no order, subject to whether it is tolerably clear who would have won.
5. Application. Costs applications are fact-sensitive and must not become proceedings about the underlying merits. Hossain’s pleaded case had focused on procedural unfairness and the factual deception finding, whereas the appeals became unnecessary because the parties later recognised the human-rights route. He was therefore not substantively successful in the first M category. The order was no order as to costs until 30 January 2018, with the Secretary of State paying costs from 31 January 2018, subject to detailed assessment.

1. Court of Appeal (Civil Division): Approved consent orders without determining the merits. Khan was granted permission to appeal and to bring judicial review before withdrawing the claim. The appeals in Islam and Hossain were dismissed by consent. Costs were ordered from 31 January 2018.
2. Upper Tribunal (Immigration and Asylum Chamber) — Khan: Permission for judicial review was ultimately refused by UTJ Perkins on 27 November 2017. Permission to appeal was granted by Hickinbottom LJ on 14 May 2018.
3. Upper Tribunal (Immigration and Asylum Chamber) — Islam: The substantive judicial review claim was dismissed by UTJ McWilliam on 22 March 2017. Permission to appeal was granted by Hickinbottom LJ on 1 November 2017.
4. Upper Tribunal (Immigration and Asylum Chamber) — Hossain: Permission for judicial review was refused by UTJ Gill on 9 May 2016 and by UTJ Kekic on 15 August 2016. Permission to appeal was granted by Sir Stephen Silber on 14 August 2017.