The Home Office used “duress and manipulation” under Theresa May’s leadership to cancel the leave of students accused of cheating English language tests and to deny them access to an independent Tribunal, it has emerged in the case of R (on the application of Mohibullah) v Secretary of State for the Home Department (TOEIC – ETS – judicial review principles) [2016] UKUT 00561 (IAC) (see § 73).

In private meetings and correspondence, government officials pressurised a private UK College to expel 218 foreign students (see § 30).

The Home Office’s hardline position rested on unreliable and unquestioned evidence of cheating presented by the language testing provider, ETS. Evidence that has since been dismantled by subsequent litigation.

WHAT ARE THE LEGAL CONSEQUENCES?

Mohibullah is legally significant for ongoing judicial review claims in ETS cases.

The key points are that in a judicial review against a decision based on an allegation of deception:

  • the standard of review is whether the decision was reasonably open to the decision maker (see § 62, applying R (Giri) v Secretary of State for the Home Department [2015] EWCA Civ 784 at § 32);
  • as such, the Secretary of State does not have to establish deception as a fact, merely that it was a conclusion reasonably open to her. It remains exceptional for judicial review hearings to receive oral evidence and cross-examination (§ 71).

Despite the high threshold for challenges to succeed, this one did. The Upper Tribunal concluded that the Secretary of State’s decision and her improper conduct (in pressurising the College) amounted to an abuse of power and was unreasonable.

That particular finding was the result of very specific circumstances in Mohibullah.

At a more general level, the UT held that:

…where multiple decision-making mechanisms are available to any public authority the decision to invoke one of these rather than any of the others entails the exercise of discretion and is susceptible to challenge on conventional public law grounds. (§ 50)

A decision which results in a conspicuously unfair outcome for, or impact upon, the claimant has the potential to qualify for the condemnation of irrationality. The ultimate question is whether the decision under scrutiny is so unfair and/or unreasonable as to amount to an abuse of power. (§ 69)

Relying on these broader principles, it might be possible for some ETS claimants to argue that a denial of a right of appeal was unreasonable.

However, a more common problem is the denial of an in-country right of appeal where the decisions pre-dates the change in the law on 6 April 2015.

Essentially, that problem remains unsolved but the Tribunal had this to say:

We would observe that the forum of an in–country statutory appeal would be clearly superior to the hybrid model adopted in these proceedings for the full exploration and consideration of all the evidence… The suitability of an out-of-country appeal in this sphere of litigation – and, indeed, in others – has not yet (to our knowledge) been fully tested at either tier and, thus, remains a moot question. (§ 89)

Experience has demonstrated that in such cases detailed scrutiny of the demeanour and general presentation of parties and witnesses is a highly important factor. So too is close quarters assessment of how the proceedings are being conducted – for example, unscheduled requests for the production of further documents, the response thereto, the conduct of all present in the courtroom, the taking of further instructions in the heat of battle and related matters. These examples could be multiplied. I have found the mechanism of evidence by video link to be quite unsatisfactory in other contexts, both civil and criminal. It is not clear whether the aforementioned essential judicial exercises could be conducted satisfactorily in an out of country appeal. (§ 90)

If you require assistance (such as making representations or drafting grounds) in an ETS case, contact me using the form below. You can also check out my earlier posts on the issue.

 

Posted by Ben Amunwa

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

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