Migrants accused of cheating in English language test have in-country right of challenge, rules Court of Appeal

Wednesday 6 December 2017

The Court of Appeal has held in Ahsan v Secretary of State for the Home Department (Rev 1) [2017] EWCA Civ 2009 that people accused of cheating on the TOEIC English language test and threatened with removal from the UK have the right to challenge that decision in this country rather than from abroad.

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Greg Ó Ceallaigh of the Garden Court Chambers Immigration and Public Law Teams represented Ahsan, one of the appellants. Greg was instructed by Liam Doyle of M&K Solicitors.

In three of the four grouped appeals decided on 5 December 2017, the appellants had been served with a removal notice under section 10 of the Immigration and Asylum Act 1999.

The court did not accept the Secretary of State’s argument that the applications for judicial review should be rejected because the appellants could pursue an in-country appeal by way of a human rights application instead.

Greg Ó Ceallaigh of Garden Court Chambers said:

“This is a huge victory for many people who just want to prove their innocence in the face of a very serious allegation based, in many cases, on little or no evidence.”

“The key legal point is that the court rejected the proposition that judicial review should be refused because there was an adequate alternative remedy. Building on the decision of the Supreme Court in Kiarie and Byndloss they held that, because of the nature of the allegations and the necessity of oral evidence to defend them, an out-of-country appeal was not an adequate alternative remedy. Therefore people should be allowed to bring judicial review claims in-country, unless they were given an in-country appeal. That was the case whether looked at through the prism of the common law or Article 8 ECHR.”

The full judgment is available online: Ahsan v Secretary of State for the Home Department (Rev 1) [2017] EWCA Civ 2009

Further details about the judgment and those instructed on the case, can be found in this post by Colin Yeo of Garden Court Chambers on the Free Movement Blog.



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