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

Version vom 23. Juni 2016, 16:46 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.

In relation to Mr. Ali not receiving prior notice of the removal decision, the Court held that this did not prevent him from responding to the notice or by making further representations. In any event, such matters relating to procedural fairness could adequately be dealt with by the appellate process.

A member of the Indian Workers’ Association told the Hindustan Times that 70 per cent of the 48,000 affected students were Indian, adding: "Due to their personal and national humiliation, many left of their own accord, the majority were deported."

The right to an in-country of appeal where a removal decision has been made at the same time a person’s leave has been invalidated by the Secretary of State under s.10 of the Immigration and Asylum Act 1999.
The circumstances where it would be appropriate for a matter to be dealt with by way of judicial review if there is a right to only an out-of-country of appeal and
Whether the sequence of the decisions invalidating leave and refusing an application for leave has a bearing on whether a person is entitled to an in-country right of appeal.
Mr Mehmood

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.

In a letter dated 7 July 2014 served on Mr. Ali on 11 August 2014, he received removal notices. If you have any concerns with regards to in which in addition to how you can employ toeic analyst audio, it is possible to call us on our page. The letter referred to ‘the earlier section 10 removal decision’. The removal decision had been served on Mr. Ali two minutes before the letter refusing his leave to remain was served. Mr. Malik, counsel for the appellants argued that because the date on the letter refusing his application was 7 July 2014, this decision was made before the decision to curtail his leave. He was therefore entitled to an in-country right of appeal.

A Home Office spokesperson told the Financial Times: "We are very disappointed by the decision and are awaiting a copy of the full determination to consider next steps including an appeal. It would be inappropriate to comment further at this stage."

In an email to the Independent, a Home Office spokesperson said: "The Government continues to tackle abuse of our immigration system and protect the reputation of our world class education institutions.

The Court referred to R (Anwar and Adjo) v Secretary of State for the Home Department [2010] EWCA Civ 1275 where the words ‘stifle an appeal’ were used but distinguished that case to that of the Appellants on the basis that here, there were no findings of facts made by the tribunal and the Secretary of State was not trying to re-litigate a matter after losing an appeal.

AWS Solicitors, who represented one of the two students in the case, released a press release following the ruling which you can read here on Free Movement. A summary of the judgment is also available here.

The ruling was quoted as saying: "Apart from the limited hearsay evidence there was no evidence from the protagonist in this saga, the ETS organisation … The Secretary of State has not discharged the legal burden of establishing that either appellant procured his [English language] certificate by dishonesty."

Politics.co.uk says this was used to justify thousands of deportations as the Home Office claimed that everyone who had taken the TOEIC test conducted by ETS had committed fraud. The Financial Times reported that it is not clear how many people were deported, but more than 30,000 test scores were considered suspect.

With respect to the ‘worthwhile’ evidence point in Mr. Ali’s case, the Court held that it could not be said that the Secretary of State had no worthwhile evidence to satisfy herself that this was an appropriate case to make a removal direction and that this amounted to a special or exceptional factor justifying judicial review proceedings. Lord Justice Beatson stated that the appeals system "specifically envisages that challenges to the factual accuracy of evidence take place through an out-of country appeal and the information which informed the Secretary of State’s decision as to the deception was put before Mr. Ali, albeit in the text of the refusal decision rather than the removal decision".

The Court held that although leaving the UK would lead to great expense and inconvenience, this was not in itself ‘special’ or ‘exceptional’. Lord Justice Sullivan gave serious ill health as an example of what might constitute such a factor.