Judicial Review in ETS TOEIC deception cases
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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 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.
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.
The sequencing question
In Mr. Ali’s case, Mr. Malik argued that the refusal to vary leave and the removal decision itself were two distinct decisions and that the first decision made on 7 July 2014, which gave rise to an in-country right of appeal, could not be invalidated by a previous removal decision.
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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."
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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 the case of R (Gazi) v Secretary of State for the Home Department (ETS - judicial review) [2015] UKUT 00327 (IAC) these witness statements were described as ‘generic’ as they did not explain why ETS had invalidated the certificate of a particular person or provide any evidence in relation to the personal circumstances of an individual.
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Mr. Mehmood made an application for a variation of his leave to remain on 31 October 2013, before his leave was due to expire on 19 November 2013. On 4 December, a decision to remove Mr. Mehmood from the UK was made on the basis that he had been working in breach of his conditions of leave. The notices stated that he was entitled to an out-of-country of appeal. On 10 January 2014, the Secretary of State refused Mr. Mehmood’s application to vary his leave on the same basis.
