Judicial Review in ETS TOEIC deception cases: Unterschied zwischen den Versionen

Version vom 25. Juni 2016, 13:10 Uhr

The Appellants, both nationals of Pakistan had made applications to extend their student visas prior to the expiration of their leave. The Secretary of State refused their applications and invalidated their existing leave by service of removal decisions under section 10 of the Immigration and Asylum Act 1999. Both Appellants lodged judicial review claims challenging the removal decisions.



This undated photo provided by Morrison & Foerster LLP shows Shirley Hufstedler. Hufstedler, a former federal appellate court judge who served as the nation's first education secretary, has died. She was 90. Hufstedler died Wednesday, March 30, 2016 at a hospital in Glendale, Calif.,Morrison & Foerster, the law firm she worked at, said. She had cerebrovascular disease.(Allen Altchech Photography/Morrison & Foerster LLP via AP)
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The hearsay evidence of Ms Collings and Mr Millington, the two main witnesses relied on by the Secretary of State was inherently limited in that neither of these witnesses possessed any relevant qualifications, credentials or expertise in what is ultimately a scientific field - namely, voice recognition technology and techniques;
There was no evidence from ETS;
The evidence from expert Dr. Harrison was persuasive and remained unchallenged by the Secretary of State;
The Appellant’s themselves were found to be truthful.

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The Court of Appeal’s analysis
The section 10 question
Mr. Malik argued that there was a difference between leave given by the Secretary of State under section 3 of the 1971 Act and leave that was automatically extended under 3C of the same Act. He contended that this was because the Secretary of State in the latter situation was not free to extend or curtail this leave and that Parliament would not have intended the Secretary of State to have the power to invalidate an automatic extension of leave under section 3C through a section 10 removal decision. Counsel also relied on section 47 of the Immigration and Nationality Act 2006 which makes provision for the removal of persons with leave extended under section 3C of the 1971 Act but does not provide that a removal direction under it invalidates a person’s leave.

Mr. Ali applied to vary his leave on 29 December 2013. A decision was made to remove him on the basis that he had used deception in his application for variation of leave. It was alleged that his Test of English for International Communication (TOIEC) certificate issued by Educational Testing Services (ETS) was obtained by a proxy test taker.

The Court rejected this submission stating that the appellants had not make free standing applications for leave and that although pending the outcome of their appeals, the refusal to vary leave would not be set aside, the issues relating to the application to vary would be closely connected to the issues that arise in relation to the legality and merits of the section 10 notices. If successful in their challenge, the Secretary of State would be obliged to give proper effect to the findings of the tribunal. If she did not, there would be strong grounds for judicial review.

With respect to the no alternative remedy question, Mr. Malik contended that if the section 10 removal decision invalidated the Appellants’ leave, they had no appeal against the refusal to vary their leave. Therefore even if the section 10 notices were successfully challenged in out-of country appeals, the refusal of the applications to vary would still stand unless they were set aside by judicial review proceedings. He argued that there was no difference between an application for a variation of leave and an application for further leave to remain

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