Court of Appeal: No Judicial Review or In Country Right of Appeal for Appellants

In July 2015 Justice Beatson heard the case of R (On the Applications of Mehmood & Ali) v Secretary of State for the Home Department [2015] 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.

Immigration Advice for UK Employers & Applicants

Choosing the right law firm from the beginning can ensure the correct applications are made from the outset this will not only allow for an easy mind in preparing for an application, but will also mean that in the long run sponsors and businesses will save time and money with a specialist law firm who follow the strict letter of the law and the Solicitors Regulations Guidelines.

Our team of experienced and professionally qualified immigration solicitors and barristers bear in mind the paramount duty of all legal representatives to act in your best interest whilst complying with the strict letter of the law. Our team of specialists can be distinguished from other law firms with our client tailored approach and scrutiny of options available to you from the outset. We will be able to advise you in respect of the merits of your application by providing you with advice from our leading team of barristers before your matter even reaches the Home Office.

If you have instructed legal representatives and you are unhappy with their conduct you can contact us to discuss your case so that we can provide you with a case assessment. To contact one of our Immigration Solicitors or Immigration Barristers please complete our legal case assessment form and we will get in touch or call us now on 0845 8622 529 for a free telephone assessment and free case assessment.

Call Now Button search previous next tag category expand menu location phone mail time cart zoom edit close