TOEIC English language test - alleged deception - British child

09 December 2019

Another interesting case from the Upper Immigration Tribunal hits an expectant world. The appellant, Mr Ahmed, was ultimately successful, but the road was twisting and complicated.

He is a Pakistani national and he held student leave. But in 2013 his student leave was curtailed by the Home Office. His leave was curtailed because - so they alleged - he had cheated in the English language test for his visa extension by sending somebody else to take the test for him.

This subject has a bit of a history. The Home Office had engaged an organisation called ETS (Educational Testing Services) to examine on a large scale English test results for visa applications because it had emerged from a BBC Panorama programme that there was widespread fiddling in the system.

The English language test in question was "TOEIC" (Test of English for International Communication), which was a test provided by - but not invigilated by - ETS, and approved by the Home Office at that time. ETS had employed technology to carry out the investigation and they determined that thousands of people had cheated by appointing "proxies" to take the test for them.

The problem is that this technology may or may not reliable. Whilst there definitely was some cheating somewhere along the line the courts have - in various decisions over the last few years - determined that not all of those accused of cheating deserved to have the charge stick. The Home Office had curtailed a large number of visas because of alleged cheating but in some cases the courts have thus directed the Home Office to reverse the curtailment.

In any event, in 2014 Mr Ahmed submitted a new visa application to the Home Office, this time on the basis that he was married to a British citizen and that he and his wife had a daughter together, who had been born in the UK in 2013 and who was also a British citizen.

But the Home Office refused the application, on the basis of the alleged deception in the English language test and also, for good measure, on the basis that the relationship with his wife was not genuine and also, for further good measure, that there was not sufficient evidence that the relationship with his child was genuine and subsisting.

This was rather unfortunate, and Mr Ahmed appealed to the First-Tier Immigration Tribunal. The case was heard in 2015 and the judge made an interesting decision. She said that she did not strongly believe that the relationship between Mr Ahmed and his wife was genuine. She also said that she did not have enough information to make a decision about the alleged deception in the English language test. But she also said that she did believe that Mr Ahmed had a genuine relationship with his daughter and on this basis she allowed Mr Ahmed’s appeal, and so he succeeded.

So well and good, but not for long. The Home Office appealed to the Upper Immigration Tribunal against the First-Tier Tribunal judge’s decision. The Home Office said that the judge had had enough information to make a decision about the alleged English language deception, and that she should have done so. If the judge had decided that Mr Ahmed had exercised deception this would have had an important bearing on the case, and therefore she should have made a decision on this issue.

The Home Office’s appeal was accepted and the case was listed for a hearing in 2017. But then something funny happened. Mr Ahmed’s solicitors wrote to the Upper Tribunal to tell them that Mr Ahmed had instructed them to withdraw his appeal, because he now wished to make a fresh application on a new basis.

The funny bit about this was that Mr Ahmed did not have any appeal: the appeal had been made by the Home Office, not by him. His solicitors had not spotted this.

This must have confused the Upper Tribunal, and they decided to treat the solicitors’ letter as an application to withdraw Mr Ahmed’s case, which was not quite the same thing. The logical consequence of this - or so it seemed to the Upper Tribunal - was that the Home Office’s appeal was now unopposed and the Upper Tribunal thus set aside the First-Tier Tribunal’s decision and allowed the Home Office’s appeal on that basis.

Mr Ahmed’s case was now in a bit of a mess and he instructed his solicitors to try and get it reinstated. Now the Court of Appeal got involved, and they said that it had been wrong of the Upper Tribunal to treat the solicitors’ letter as a notice of withdrawal and, further, that it had been wrong of them to set aside the First-Tier Tribunal decision. As a result of this decision the case ended up back with the Upper Tribunal to make a new decision. By now it was 2019.

We hope you are following so far, and a couple of other complicated issues came up in the course of hearing, but a core issue before the Upper Tribunal was whether or not the First-Tier Tribunal’s decision of 2015 had been in legal error.

Fortunately for Mr Ahmed they decided that it had not been. They said that the force of certain relevant legislation - relating to his relationship with his child - was such that her decision was correct, nothwithstanding that she had not dealt with the deception issue, and so Mr Ahmed was ultimately successful.

It is hardly necessary to point out that immigration appeals can get very complicated. If you have one you really do need to have a good lawyer on your side.

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