Overview
The unreported judicial review case of R (MD Shahadat Hossain) v Secretary of State for the Home Department (JR-2024-LON-000328) is a significant recent example of how the Upper Tribunal continues to address the long-term consequences of the TOEIC English language testing scandal. The case confirms that where an applicant was wrongly accused of deception and later cleared, the Home Office may be required to treat their immigration history as if the unlawful decision had never occurred, including for the purposes of long residence settlement.
Background
The applicant originally entered the UK as a Tier 4 General Student. He successfully extended his leave once. However, on 7 May 2014, his second extension application was refused following an allegation that he had obtained his English language certificate by deception. This formed part of the wider TOEIC scandal, during which thousands of individuals were wrongly accused of cheating.
At the same time as refusing his application, the Home Office issued a Section 10 removal notice under the Immigration and Asylum Act 1999. Although this decision was appealable, it could only be challenged from outside the UK. The applicant attempted to pursue judicial review, but permission was refused and the claim was certified as totally without merit. He also attempted to obtain the audio recordings of his TOEIC test from the test provider in order to challenge the deception allegation, but no recording was provided.
Following this, the applicant remained in the UK without leave and did not comply with reporting conditions, resulting in him being treated as an absconder. He later claimed asylum in 2018, which he withdrew in 2022. During this period, he also brought a human rights claim. Although this was initially refused, he succeeded on appeal before the First-tier Tribunal, which found that he had not used deception in obtaining his English language test. As a result, he was granted leave to remain from 28 November 2023 to 27 May 2026.
On 13 December 2023, the applicant applied for Indefinite Leave to Remain (ILR) under the ten-year long residence rule. This application was refused on the basis that he did not meet the requirement of ten years’ continuous lawful residence. The refusal letter acknowledged that in many TOEIC cases, applicants are placed back in the position they would have been in but for the false allegation. However, the Home Office argued that this did not apply to him because he had been on a Tier 4 route, which does not normally lead to settlement, and also referred to his period of absconding.
As this refusal carried no right of appeal, the applicant pursued judicial review.
The Upper Tribunal’s Decision
The applicant argued that, in line with the principles established in Ahsan v Secretary of State for the Home Department [2017] EWCA Civ 2009, his ILR application should have been decided as though the 7 May 2014 refusal and removal notice had never been issued. Had this approach been adopted, he would have met the ten-year continuous lawful residence requirement.
The Home Secretary sought to distinguish his case, relying on his absconding and the fact that his earlier judicial review had not been appealed. The Upper Tribunal rejected these arguments. The Tribunal found that the reasoning in Ahsan did apply and that the applicant clearly formed part of the class of individuals who had suffered serious injustice as a result of unfounded TOEIC allegations. The Tribunal described the Home Office’s attempt to exclude him as irrational and unsustainable.
The Upper Tribunal concluded that the refusal of indefinite leave to remain was unlawful. The decision was quashed, and the Home Office was directed to remake the decision treating the applicant as having met the continuous residence requirement for settlement.
Why This Case Matters
This case is another important reminder that the legal consequences of the TOEIC scandal are still unfolding more than a decade later. It reinforces that individuals who were wrongly accused of cheating and later cleared must be properly remedied, even where there have been complex immigration histories, including periods without leave. The decision confirms that the Home Office cannot avoid its obligations simply by relying on technical distinctions or historical procedural points.
Practical Implications for Practitioners
For immigration practitioners, this case highlights the importance of carefully examining long residence refusals where there is a historic TOEIC allegation. Where deception findings have been overturned, it remains open to argue that the applicant should be treated as if the original unlawful decision never occurred. Even where there has been absconding or a break in leave, this will not necessarily defeat a claim if the underlying injustice stems from an unlawful TOEIC decision. Judicial review continues to play a vital role where no right of appeal exists.
Conclusion
The decision in R (MD Shahadat Hossain) v Secretary of State for the Home Department is a further strong example of the courts holding the Home Office to account for the serious injustices caused by the TOEIC scandal. It confirms that where deception allegations are later proven unfounded, the Home Office may be required to restore applicants to the position they would have been in but for the unlawful decision. The case serves as a powerful reminder that fairness and legal accountability remain central to the long residence settlement framework.
By: Emmanuel Oqbu