In July 2015 Justice Beatson heard the case of R (On the Applications of Mehmood & Ali) v Secretary of State for the Home Department  EWCA Civ 744 and reviewed the Home Office invalidation of appellants’ leave by ‘giving them notice pursuant to section 10 of the Immigration and Asylum Act 1999’ and notice to remove them.
The two Appellants in the said case had their applications for variation of leave refused under Section 10(8) of the 1999 Act. Section 10(8) of the 1999 Act is a notice of a decision to remove. The effect of section 10(8) is to invalidate any leave to enter or remain previously granted to a migrant.
The facts of Mehmood & Ali
Mr. Mehmood’s leave was curtailed by the Home Office as his sponsoring college had their licence revoked. Mr. Mehmood attempted to regularise his stay by applying for further extensions of his leave. During the time that Mr. Mehmood awaited a decision from the Home Office he was accused of working illegally and therefore found in breach of his grant of leave. Mr. Mehmood also had a human rights claim outstanding but this was refused and certified as clearly unfounded by the Home Office.
Mr Ali was said to have fraudulently obtained an English Language Test from the English language test centre known as ‘Educational Testing Service Limited’ (ETS). This led to the Home Office revoking Mr. Ali’s leave due to fraudulent conduct on his behalf. Mr. Ali disputed this allegation and claimed that there was no specific evidence demonstrating that he had used deception to obtain the English language certificate.
Where the Home Office have served a person with notice pursuant to section 10 of the Immigration and Asylum Act 1999 and notice to remove them; the effect of section 10(8) will be to invalidate any leave to enter or remain previously granted to a migrant.
In other words Justice Beatson held that if such a person is accused of having exercised deception to obtain leave for example; by cheating on an English language test or where a person is found to be in breach of their conditions of leave by the Home Office then they cannot be entitled to an in country right of appeal. The decision went as far as to include that Appellants will not be entitled to make a judicial review application against such an immigration decision from within the UK unless there are unusual circumstances to warrant such an application.
A closer look at the English Language Tests obtained by deception
The Home Office has received significant evidence sometimes in the form of reports from English language tests administered by the Education Testing Service (ETS) which uncovered an organised scheme in which students fraudulently obtained their ETS English Language certificate.
Evidence in report form is being produced in immigration tribunals after individual investigations conducted via each test centre revealed fraud was used to obtain high test scores. The individual reports disclose a number of different fraudulent tactics, not only are there proxy test takers, but there are also invigilators who repeatedly dictate answers to an individual or in some cases to an entire room until a candidate is satisfied that they will achieve a high test score as required by an employer or sponsor.
In other centres the individual applicant has been known to attend a specific test centre for their biometric information to be taken without ever entering the testing rooms; where proxy takers have previously completed their tests on their behalf in some cases months before they were scheduled to be completed by applicants.
Due to the considerable corruption revealed law firms and their clients are concerned that genuine students who have actually passed the English tests have also fallen into the same category as those who have clearly cheated. This is because of the extensive corruption which has manifested itself in not only the marking but also recording of individual exams across the test centres. This leaves a genuine student with a mark on their immigration record as having used fraudulent means to obtain leave in the past. This then affects any further applications they make in the future whether this is entry clearance, leave to remain under the Points Based System or even human rights applications made years after an English certificate has been submitted to the Home Office.
Individuals who have made applications and are relying on one of these tests should seek professional legal advice immediately.
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