The Independent reports that the Upper Tribunal has found in favour of students who had their leave to remain cancelled and faced deportation because the Home Office wrongly believed that they had cheated on their English language tests.

The decision follows a run of previous challenges in similar cases, known as ‘ETS’ cases after the Educational Testing Service Limited where the alleged cheating occurred.

ETS was a Home Office approved provider of “secure English language testing”. That was until Panorama exposed a number of incidents of fraud by ETS back in 2013.

For a variety of reasons, all previous ETS challenges have been unsuccessful.

The latest verdict condemns the poor quality of the evidence that the Home Office relied on to accuse thousands of individuals of fraud and remove them from the UK.

That the evidence is poor is not news.

Last year, in R (Gazi) v Secretary of State for the Home Department (ETS – judicial review) IJR [2015] UKUT 00327 (IAC), the Tribunal found the evidence relied on by the Home Office in ETS cases was generic, full of holes and put together by amateurs. Rather than provide evidence against specific individuals, the Home Office relied on stock witness statements that made sweeping conclusions about undisclosed data.

Despite these obvious flaws, the Tribunal still rejected the judicial review challenges in Gazi and found that students in these cases should not bring judicial reviews if they can appeal from outside the UK.

In effect, Gazi rubber stamped the government’s harsh new policy to “deport now, appeal later” (see §§ 36 and 42 in the judgment).

The Court of Appeal towed the same line in Sheraz Mehmoud & Shahbaz Ali v Secretary of State for the Home Department [2015] EWCA Civ 744. That case concerned cases prior to the major changes to appeal rights wrought by the Immigration Act 2014 – in other words, the majority of ETS cases decided in the wake of the Panorama investigation. Only in exceptional or special cases would judicial review be appropriate, they said.

Many persons affected by ETS decisions have therefore been shut out of the appeal system and unable to challenge the flimsy evidence against them unless they left the UK and appealed from abroad. And many have been unjustly detained and removed, as Lisa Matthews from the Right to Remain campaign points out.

I will post again when the new Tribunal judgment is officially published. The decision could affect thousands of foreign students who have been wronged. However, for that reason alone, the Home Office may well go to the Court of Appeal and seek to overturn the Upper Tribunal’s decision – we shall see.

Posted by Ben Amunwa

Founder and editor of Ben is a commercial and public law barrister with The 36 Group. He gives expert legal advice on employment, public law and commercial disputes to a wide range of clients.

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