Landmark Chambers


Statutory construction and fairness in nationality decisions: the High Court gives judgment on an ETS/TOEIC case

DATE: 15 Dec 2017

R (Islam) v Secretary of State for the Home Department

In an important judgment on the construction of section 6 of the British Nationality Act 1981 and the elements of procedural fairness in nationality decisions, the High Court (Michael Fordham QC sitting as a Deputy) today upheld the Secretary of State's decision to refuse to grant nationality to a Pakistani national on the grounds that she was not satisfied he was of good character.

The case falls within the wider corpus of 'ETS / TOEIC' cases arising out of widespread fraud at English language test centres run by ETS. 

In an earlier, successful application for leave to remain, the Claimant had relied on an English language certificate issued by ETS that the Secretary of State was subsequently told was fraudulently obtained.   Although the Claimant denied that allegation, the Secretary of State refused to grant nationality on the basis that the claimant had used deception in a previous application and was not, therefore, of good character. 

The claim was brought on three grounds.

First, the claimant contended that the question of whether he had used deception was a precedent fact to be determined by the court. As a matter of statutory construction, the court dismissed that contention, holding first that deception formed no part of the statutory language and secondly, that it was clear that parliament intended the question of whether an applicant was of "good character" to be a question for the Home Secretary.  To the extent that the judgment in R (Abbas) v SSHD [2017] EWHC 17 (Admin) appeared to suggest that section 6 decisions might be reviewable on a precedent fact basis, that was a misreading of the case which adopted a precedent fact review because it was primarily concerned with a decision under section 76(2) of the Nationality Immigration and Asylum Act 2002. 

Secondly, the Claimant contended that the decision was procedurally unfair because i) he had not been informed in advance of the initial decision to refuse nationality of the Secretary of State's concerns about his test certificate; and ii) a subsequent reconsideration of the decision, taken after receiving representations from the Claimant, did not in fact permit a proper reconsideration at all. 

The court accepted that the initial decision viewed in isolation was procedurally unfair but held that it was necessary to consider the procedure as a whole, including the reconsideration. 

Although the court recognised that there were arguable problems with the scope of reconsideration within the Secretary of State's published policy, it held that the fairness of the procedure could only be determined by examining alongside the policy on reconsideration; i) what the Claimant in fact did; and ii) what the Secretary of State in fact did. 

On that analysis, while the policy appeared to limit considerably the scope for reconsideration, the Claimant had made all the representations he wanted to make and the Secretary of State had properly considered those representations before maintaining the decision. Accordingly, the requirements of procedural fairness were met and the decision was could not be impugned on that ground.

Finally, the Claimant contended the decision was irrational. Relying on the weaknesses in the process used by ETS for identifying fraudulent test takers, as highlighted in the case of SM and Qadir v SSHD [2016] UKUT 229, the Claimant submitted that the Secretary of State could not rationally have relied on that evidence alone to reach the conclusion that he had used deception. The court dismissed that ground of claim, holding that SM and Qadir was not a knockout blow to the ETS evidence and subsequent evidence available to the Secretary of State at the date of the decision (including a new expert report) made her reliance on the ETS evidence entirely rational.

Toby Fisher appeared for the Secretary of State.