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Court of Appeal guidance on costs in ETS cases

Court of Appeal guidance on costs in ETS cases

The ETS saga continues and the latest edition is the Court of Appeal’s judgment in Rahman v Secretary of State for the Home Department [2018] EWCA Civ 1572. (Editor’s note: we may have been a tad premature in declaring that The ETS English language testing saga is over.) The judgment was handed down in July but has only now appeared on Bailii.

Essentially, the ETS scandal — which saw around 40,000 people have their visas cancelled or refused after revelations of widespread cheating on English language tests — came to a head in the case of Ahsan [2017] EWCA Civ 2009. The Court of Appeal in Ahsan decided that an out of country appeal would not be an effective remedy for someone removed from the UK over cheating allegations where

  1. it would be necessary for an appellant to give oral evidence and
  2. the facilities to give evidence by video-link were not realistically available.

Thus, a person in this situation was entitled to challenge the decision by judicial review at which oral evidence could be led.

That left the issue of costs in ETS legal challenges that were pending when Ahsan was decided. The general rule in litigation is that expenses follow success. The obvious outcome would have been for the Home Office to foot a hefty bill for each case, complain a little, and get on with things. Instead, the Home Office proposed post-Ahsan that the issue of costs should be reserved for the Upper Tribunal pending determination of the substantive judicial review hearing.

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Understandably, this sparked outrage amongst the aggrieved appellants and four test cases were brought before the court for guidance on how the cases should be disposed of. After briefly spelling out the law, which says consideration needs to be given to the conduct of the parties and whether they succeeded in whole or in part, Lord Justice Hickinbottom turned to the individual cases. In two out of the three cases (Mr Al Amin and Mr Rahman), he had little hesitation in deciding that they had been “wholly successful” in proceedings and were entitled to their expenses.

The circumstances of Mr Farhan Ali, the third appellant, were a little different. In his case, the Upper Tribunal has specifically said that notwithstanding the ETS issue, his claim would have been bound to fail under the Immigration Rules or alternatively on the basis of exceptional circumstances outside the Rules. On that basis, the court held no costs were payable.

In a brief postscript, the court allowed the Secretary of State a period of just over 2.5 weeks to negotiate the issue of costs in the outstanding cases. I can only sympathise with the appellant who have been dragged through this nightmare for the last few years and I am quite appalled that this case had to even be decided by the Court of Appeal in the first instance.


Bilaal Shabbir

Bilaal is a Trainee Solicitor at MBS Solicitors in Edinburgh. He is Head of Court of Session Litigation and specialises in immigration law, family law, commercial dispute resolution and professional discipline. He was named as 'Paralegal of the Year' at the Scottish Legal Awards 2018.

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