LS Legal News Bulletin
In-Country Right of Appeal for People Accused of Cheating on the TOEIC English Test
Wednesday 13th December 2017
The Court of Appeal decided that out of country appeals are not an appropriate remedy for persons whose visas have been cancelled after being accused by the Home Office of cheating in English language tests in Ahsan & Others v Secretary of State for the Home Department (Rev 1) [2017] EWCA Civ 2009.
The appellants argued that although they were entitled to challenge the Home Office decisions in their cases by an out of country appeal, this was not an adequate remedy because they would be denied the opportunity to give oral evidence in person, in breach of basic standards of fairness and access to the Court or Tribunal. Their applications for judicial review should be allowed to proceed because they had no other effective remedy, they said.
The Secretary of State's position was that an out-of-country appeal was adequate, but even if it wasn't, the appellants could make human rights claims in the UK that would, if refused, give rise to in-country rights of appeal. Their judicial review claims should be refused for this reason.
Key Conclusions
• A person accused of cheating in ETS/TOEIC cases and who faces a decision to remove them from the UK must have the opportunity to give oral evidence in order that their case is fairly determined by a Court or Tribunal in accordance with the procedural requirements in the right to private and family life in Article 8 of the European Convention on Human Rights and/or under the common law requirements of fairness and access to justice;
• Out-of-country rights of appeal are not an adequate remedy in most cases because facilities for giving oral evidence by video-link are not currently available;
• Where a human rights claim is certified as 'clearly unfounded' in an ETS case, the Secretary of State must justify why there is no prospect that a person's oral evidence may rebut the allegation of deception.
It should also be noted that the case contains reference to the fact that where a person has not taken the step of obtaining, or at least requesting the voice recording of their test results, this could be considered against them.
This will come as welcome news for some of the many thousands of people who the Home Office has accused of using proxy test-takers to pass TOEIC language tests at centres run by ETS.
If you are affected by the decision in Ahsan and were denied a right of in-country appeal, please do not hesitate to contact us by e-mail info@LSLegaLUK.com or by phone +447535959450 for a no-obligation consultation providing legal advice in order to navigate the best way forward for you.
