Upper Tribunal latest on ETS appeals and common costs orders
I am starting to detect subtle* signs that the Upper Tribunal is unimpressed by attempts to litigate ETS cases from within the UK. These are the cases where a person stands accused (on unknown, undisclosed evidence) of cheating in English language tests administered by the company Educational Testing Services. In many such cases, a decision to revoke leave was made by the Home Office with the effect that an appeal can only be pursued from abroad, after departure.
There have been two major cases on whether some ETS cases might be argued from within the UK. These both failed. One was R (On the Applications of Mehmood & Ali) v Secretary of State for the Home Department  EWCA Civ 744 (FM blog post) and the other was R (Gazi) v Secretary of State for the Home Department (ETS – judicial review)  UKUT 00327 (IAC) (FM blog post). Notwithstanding the entirely unsuccessful outcomes of these challenges so far, some lawyers have persisted in advising their clients that cases are arguable.
Upper Tribunal's President, McCloskey J, will hear lead ETS/TOEIC scam appeals on 5-8 February 2016. Will update.
— Zane Malik (@MalikZane) January 5, 2016
There are now two further cases to add the cannon of largely unsuccessful litigation in ETS cases.
The first of these is Khan & Ors, R (on the application of) v Secretary of State for the Home Department (common costs) (IJR)  UKUT 684 (IAC). The Secretary of State applied for a common costs order against all of the remaining litigants whereby each would have to contribute to the generalised costs incurred by the Home Office in preparing these cases. The total cost was said to be £29,745.80, the total number of ETS claims is 2,539 and the share each would have to pay was therefore £11.72, additional to the specific costs incurred in each individual case.
The application was refused. The victory is a Pyrrhic one, however. At the very least costs will be awarded on the normal basis (called the Mount Cook basis after the case of Mount Cook  EWCA Civ 1346), meaning that if permission for an application for judicial review is refused, the costs of preparing the Acknowledgement of Service will be awarded to the Secretary of State but not the full costs of defending the claim. The determination ends ominously, though, with the Deputy President pointing out that there are exceptions to this general rule whereby the full costs of defending the claim can be awarded, in particular based on
(a) the hopelessness of the claim;
(b) the persistence in it by the claimant after having been alerted to facts and/or of the law demonstrating its hopelessness
It is abundantly clear that unless there are genuinely exceptional circumstances, full costs will be awarded.
The official headnote:
1. The Tribunal has jurisdiction to make a Common Costs Order in appropriate cases.
2. That jurisdiction will, however, be exercised only on the basis of establishing facts demonstrating the total amount of costs in question and the number of cases to which that total is attributable.
3. If ETS cases are pursued to an oral hearing at which there is no prospect of success, the Tribunal will consider whether the case should be treated as an exception to the Mount Cook principles.
The other new case is Roohi & Anor, R (on the application of) v Secretary of State for the Home Department (2014 Act: saved appeal rights) (IJR )  UKUT 685 (IAC). The context to this case is that the problem faced by ETS litigants is one that exists only prior to the commencement of the Immigration Act 2014. Under the previous appeal regime, there was a right of appeal but it was an out of country one and therefore there was, absent exceptional circumstances, no possibility of pursuing an appliction for judicial review.
Since commencement of Immigration Act 2014, there is no longer a right of appeal against revocation or curtailment of leave. The only rights of appeal are against refusal of asylum or human rights applications. A person in the situation of the ETS litigants would therefore be able to pursue an application for judicial review under the new regime.
This case involves an ingenious argument (Ockelton: “completely wrong”) on the interpretation of the appalling commencement orders for the Act. The long and short of it is that, unless the Court of Appeal were to disagree, those who received revocation decisions before the commencement of the Act still cannot bring applications for judicial review absent exceptional circumstances.
The official headnote:
(1) The commencement of the Immigration Act 2014 does not remove rights of appeal from those who were served with appealable decisions before 6 April 2015.
(2) This means that those with a right of appeal exercisable only from outside the United Kingdom (including some ETS cases), have an adequate alternative remedy, and as such judicial review will not lie save in a small minority of cases that are in some way exceptional.
Despite all these warning signs the ETS litigation will no doubt continue.
- Really not subtle at all but glaringly obvious to the point that counsel should carefully consider whether submissions are properly arguable in accordance with BSB Handbook rC9.2.b.