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Home Office ‘abuse of power’ over English Language Testing student

Home Office ‘abuse of power’ over English Language Testing student

The President of the Immigration and Asylum Chamber of the Upper Tribunal has found that the Home Office abused its power in forcing a college to expel a student and deliberately depriving him of a statutory right of appeal. The case has now been reported as R (on the application of Mohibullah ) v Secretary of State for the Home Department (TOEIC – ETS – judicial review principles) [2016] UKUT 561 (IAC). The most damning findings are at paragraph 73:

What is the effect of this analysis? In our judgment, it adds a further, discrete dimension to the Applicant’s challenge. It invites the conclusion (to borrow the language of Elias LJ) that a reasonable public authority could not fairly have deprived the Applicant of a statutory right of appeal in the context and circumstances in question. Drawing the various strands together, the conduct of the Secretary of State’s agents in their interaction with the proprietor and representatives of Blakehall College attracts the opprobrium of our analysis and findings in [25] – [29] above; the Secretary of State’s ability to invoke the mandatory and unappealable curtailment of leave decision making route was a direct result of the improper conduct, consisting in essence of duress and manipulation, which we have found; the Applicant was left in the dark as to the Secretary of State’s intentions at all material times; the college was the only source and conduit of information to him; no invitation to make representations about decision making routes was afforded to him; there was no communication with him during a critical period; and, ultimately, the Applicant was driven to pursuing a legal remedy which is markedly less suitable than an appeal on the merits. We conclude that these various factors combine to yield the conclusion that the Secretary of State’s decision was so unfair and unreasonable as to amount to an abuse of power.

For background to the ETS brouhahah see these earlier blog posts.

The official headnote:

(i) Where there is a multiplicity of decision making mechanisms, some generating a right of appeal and others not, there is a public law duty on the decision maker to be aware of the options and to take same into account when opting for a particular mechanism.

(ii) Where a Tier 4 Student is considered to have made false representations, thereby being liable to discretionary curtailment of leave  and has been withdrawn from a course, thereby being liable to mandatory curtailment action there is a duty on the Secretary of State to consider  both of the corresponding sections in the “Curtailment of Leave” policy guidance.

(iii) A failure to give effect to policy guidance without justification is in breach of the  Lumba principle and renders the ensuing decision vulnerable to being quashed.

(iv) Where a curtailment of leave decision is underpinned by the Secretary of State’s decision that leave to remain had been procured by deception, the appropriate standard of review is the  Wednesbury principle rather than proof of the precedent fact of deception.

(v) A decision which has a conspicuously unfair impact on the subject may qualify for condemnation as unreasonable, or irrational, in contravention of the  Wednesbury principle.

(vi) The student’s knowledge of an allegation by ETS that he has procured his TOEIC certificate by deception will normally suffice to convey the gist of the case against him, thereby rendering the Secretary of State’s decision making process (in this respect) procedurally fair.

Channel 4 News ran a report on case at the link below. The embargo was lifted on 1 December 2016 but it was only been officially reported yesterday.

Source: Home Office ‘abuse of power’ over visa – Channel 4 News

Colin Yeo
A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 15 years. I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

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