JR-2025-LON-001637

• Status of case: Unreported
• Hearing date: 02 Mar 2026
• Promulgation date: 15 May 2026
• Publication date: 18 May 2026
• Last updated on: 18 May 2026

The decision

Case No: JR-2025-LON-001637
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR

Before:

UPPER TRIBUNAL JUDGE BLUM

- - - - - - - - - - - - - - - - - - - -

Between:

THE KING
on the application of
MOHAMMAD ISMAIL HOSSAIN
Applicant
- and -

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

- - - - - - - - - - - - - - - - - - - -

Mr S Singh KC
(instructed by Hubers Law), for the applicant

Mr M Biggs
(instructed by the Government Legal Department) for the respondent

Hearing date: 2 March 2026

- - - - - - - - - - - - - - - - - - - -

J U D G M E N T

- - - - - - - - - - - - - - - - - - - -

Judge Blum:

1. The issue in this judicial review challenge is whether the Secretary of State for the Home Department (respondent) acted unlawfully in her decision dated 10 March 2025 to refuse the further submissions of Mr Mohammad Ismail Hossain (applicant) as amounting to a fresh human rights claim pursuant to paragraph 353 of the immigration rules.

2. The applicant advances his challenge on 2 principal grounds. He firstly contends that the respondent failed, in substance, to ask herself the correct question under paragraph 353 and reached a conclusion not rationally open to her. Secondly, he contends that the respondent acted unlawfully in her treatment of the judicial review decision of Upper Tribunal Judge Craig (Judge Craig) who, in 2017, upheld the lawfulness of the respondent’s decision dated 19 January 2016 refusing to grant him further leave to remain and curtailing the applicant’s leave to remain on the basis that he cheated in a TOEIC English language test.

3. The respondent resists the challenges and maintains that her decision of 10 March 2025 is not tainted by unlawfulness. The respondent contends that any consideration of whether the applicant cheated in his TOEIC test is bound by the decision of UTJ Craig and the applicant is now prevented by the principle of issue estoppel from re-litigating the issue whether he cheated. The respondent further contends that, pursuant to the principle in Henderson v Henderson (1843) 3 Hare 100 (Henderson v Henderson principle), it is not now open to the applicant to rely on an ‘historical injustice’ argument on the basis of his claim not to have cheated because this was not raised in earlier proceedings brought under Part 5 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act). The respondent further maintains that the applicant cannot rely on an article 8 ECHR ‘historical injustice’ argument as this requires unlawful conduct by the respondent and that, in any event, in light of the caselaw relating to the TOEIC cheating, his claim is so weak that there could not on any view be a realistic prospect of success in a hypothetical article 8 ECHR human rights claim before a Judge of the First-tier Tribunal (IAC).

Background

4. The applicant is a national of Bangladesh born on 15 June 1992. He arrived in the United Kingdom on 8 July 2012 pursuant to entry clearance as a Tier-4 student. On 15 May 2013 he took a TOEIC English language test facilitated by ETS (Educational Testing Service) at Queensway College in Wandsworth. In this test he scored 200 points out of 200 (level 8 scale) in the speaking element.

5. On 25 October 2013 the applicant relied on the TOEIC English language test in his application for further leave to remain (FLR) as a student. He was granted FLR until 28 February 2016.

6. On 24 December 2015 the applicant applied for FLR to complete his undergraduate course at the University of Wales Trinity St David. In a decision dated 19 January 2016 the application for FLR was refused and the applicant’s leave to remain was curtailed with immediate effect. The application was refused under paragraph 245ZX(a), by reference to paragraph 322(2) of the immigration rules (the general grounds of refusal) because the respondent had been informed by ETS that, following the use of voice recognition software, a proxy had been used in the applicant’s speaking test. The respondent considered that the applicant had cheated in the speaking part of the TOEIC test by using a proxy test taker, and that he therefore made false representations for the purpose of obtaining his previous variation of leave. The applicant was awarded points under the relevant immigration rules for his Confirmation of Acceptance for Studies (CAS) form and in respect of the maintenance requirement.

7. An Administrative Review dated 22 February 2016 upheld the decision of 19 January 2016. In a supplementary decision dated 7 December 2016 the respondent noted the applicant’s continued assertion that he sat the speaking test himself and that on 1 July 2014 he had undertaken an English language test with his education sponsor (University of Wales Trinity Saint David (UWTSD) and scored level 6.0 overall which was sufficient to continue his studies. The respondent was not however satisfied that this indicated the applicant had not cheated 14 months earlier. The respondent found that the applicant’s failure to provide any evidence that he did in fact sit the test counted against him. The Administrative Review decision concluded that it was open to the applicant to obtain copies of the voice recordings relating to his English language test by writing to ETS’s solicitors.

8. The applicant obtained permission to bring a judicial review challenge against these decisions. In a decision dated 28 February 2017 Upper Tribunal Judge Craig dismissed the judicial review challenge. Judge Craig noted that when the challenged decision was made the applicant had no appeal against that decision, even out of country.

In a statutory appeal a First-tier Tribunal Judge will consider all the evidence and would effectively remake the decision considering for him or herself having heard all the evidence whether or not the tribunal is satisfied that the objection was made out. In the case of judicial review proceedings, however, it is necessary for an applicant to show that the decision was in some way unlawful such that it should be set aside.

9. Judge Craig referred to SM and Qadir v SSHD (ETS - Evidence - Burden of Proof) [2016] UKUT 00229 and noted that the evidence relied on by the respondent was sufficient to satisfy the initial burden of proof on the respondent to show that there was enough material on which a reasonable decision-maker could conclude that the test result had been obtained by the use of a proxy. Judge Craig also noted that, in circumstances where there was significant evidence produced on behalf of an applicant to show that this was not the case, then the burden would shift back to the respondent to show that, notwithstanding what might be persuasive evidence on the part of the applicant, the decision should be maintained.

10. Judge Craig refused to admit as evidence a witness statement made by the applicant a few days before the hearing. The Judge also noted that, at that stage, the applicant had not attempted to obtain the original recordings of the speaking test. Judge Craig stated,

What judicial review proceedings are designed to do is to bring challenge to decisions which have been made; no decision has been made by the respondent which either have or have not taken into account the submissions which this applicant now seeks to make and for the purposes of these proceedings it is far too late to allow him to put in further evidence which has not yet been considered.

11. Judge Craig noted the evidence before the respondent when her most recent December 2016 decision was made. This included evidence from the applicant explaining why he had been unable to obtain evidence from Transport for London in respect of his attendance at Queensway College, that it was open to the respondent to obtain CCTV evidence of his presence, and that he had passed a further English language test 14 months later. Judge Craig stated,

What is missing from this letter is detailed evidence regarding how he got to the centre, how much he paid, evidence showing that he did pay for the test and so on. Subsequently, even until December of last year the applicant had still failed to put any of this material before the respondent.

12. Judge Craig concluded,

Accordingly it follows that there is no arguable basis upon which it can realistically be said that any of the decisions which were made were "Wednesbury unreasonable" and for this reason this application must be dismissed.

13. On 6 March 2017 the applicant requested the recording of his TOEIC speaking test from ETS, which he received the following day. He has confirmed that the voice is not his own. In his statement dated 24 June 2024 the applicant states that, on 24 June 2024, he raised “… a complaint directly to the ETS that they have to disclose [his] voice records.”

The applicant’s protection claims

14. On 29 November 2017 the applicant made a protection claim based on his claimed sexual orientation. This was refused by the respondent on 25 May 2018. In refusing the protection claim the respondent maintained her position that the applicant cheated in his TOEIC test.

15. The applicant appealed the refusal of his protection claim. In a statement prepared for the appeal hearing in the First-tier Tribunal (IAC) the applicant denied cheating and provide a detailed account of how he took the test. He also described his primary and secondary education in which instruction was in English, that he obtained a grade B in English at Higher Secondary Education in Bangladesh, that his undergraduate degree in Management was conducted in English, and that he obtained a band score of 5 (out of possible 9) in an IELTS exam on 9 February 2012. The applicant described his journey using buses to the test centre and the tests themselves.

16. In a decision promulgated on 10 July 2018 Judge of the First-tier Tribunal (IAC) Bartlett found the appellant was not credible as to his claimed sexual orientation or his protection claim. Mr Singh KC made the point that the 10 July 2018 decision made no findings of fact on the issue of whether the applicant had cheated in his TOEIC spoken test. I note that, at [23] of his decision, Judge Bartlett indicated that there was no free-standing article 8 claim pursued by the applicant at his appeal. It does not therefore appear that Judge Bartlett was invited to determine whether the applicant had cheated.

17. Although the applicant sought permission to appeal Judge Bartlett’s decision, permission was refused. The applicant made further submissions to the respondent on 2 January 2020 and, although refused, the respondent treated the further submissions as a fresh protection claim entitling the applicant to a right of appeal. The applicant exercised his right of appeal but his appeal before Judge of the First-tier Tribunal (IAC) Scott was dismissed on 9 November 2022. It does not appear from the face of Judge Scott’s decision that the applicant advanced or relied on his claim to have not cheated in his TOEIC test. Judge Scott did not find the applicant to be a generally credible witness. The applicant became appeal rights exhausted on 8 March 2023.

18. The applicant made further submissions, and he applied for leave to remain outside the immigration rules on 12 May 2024, making human rights submissions on 25 June 2024. The respondent refused this application, which she treated as further submissions under paragraph 353, on 10 March 2025.

The decision under challenge

19. In her decision of 10 March 2025, the respondent considered several documents provided by the applicant including multiple education letters and certificates and a witness statement signed by the applicant dated 24 June 2024, as well as case law and a 239 bundle of reports relating to ETS and TOEIC and Tribunal decisions. In his witness statement the applicant covered the same ground as his earlier statement in support of his 2018 appeal. The applicant stated that he had achieved a score of 6.0 overall in his university in-house English test in July 2014 (which had been referred to by Judge Craig). The applicant claimed it had been difficult to book an IELTS test as there were no near dates and that it would take a long time for IELTS to provide his results. He therefore opted to undertake a TOEIC test as the results could be obtained shortly after the test and they were easy to book. The applicant described how Queensway College was a single hour-long bus journey from where he lived. He claimed he paid in cash as he was having “some issues in online banking to log in to my account, so I preferred to pay in cash”. The applicant described how copies of his passport were made and how he was given a receipt which he subsequently lost when he moved house, and how he took the exam in a hall filled with computer terminals along with 15 to 20 others. He described taking the test. The applicant received a score of 200 out of 200 for his speaking test. He claimed he had no reason to cheat and referred to his previous educational achievements. The applicant commented on different ways in which his voice may have been replaced by that of another through, for example, the mass replacement of recording files and the mixing up of identities by dishonest staff at the hearing centres. The applicant claimed that he and his family have so far spent almost £35,000 on his academic pursuits in the UK.

20. Having summarised the substance of the applicant’s previous protection claims and the respective judicial decisions, and having referred to the JR challenge before Judge Craig and the decision of Judge Bartlett, the respondent stated, in respect of the applicant’s denial of having cheated,

This issue has already been heard in your appeal heard by Judge Bartlett. In his dismissed appeal determination, heard on 06 July 2018, stated:

“In relation to the ETS certificate, the evidence before me is that the certificate was deemed invalid which led to a refusal of the appellant leave to remain application on the basis that fraudulent documents had been used. The appellant challenged this by judicial review and this challenge failed. The Judicial review decision notes that the appellant failed to provide evidence to discharge the burden of proof on him such as obtaining his recordings from ETS and noting “what is missing from this letter is detailed evidence regarding how he got to the centre, how much he paid, evidence showing that he did pay for the test and so on” The appellant’s judicial review claim failed, there were no credibility findings made about the claimant ”

21. The respondent set out extracts from the original decision dated 19 January 2016 and noted that ETS has identified the applicant’s TOEIC certificate as ‘invalid’. The decision continued,

Additionally, from the data ETS made available to the SSHD for tests taken on 15 May 2013 at Queensway College, a total number of 25 speaking and writing tests (including yours) were taken on this day. The data shows 23 (92%) of those results were deemed “invalid” i.e. obtained using a proxy and 2 (8%) of the test results were “questionable” i.e., that the score could not be relied upon due testing irregularities under abnormal or non-standard conditions which resulted in the tests being withdrawn by ETS.

22. Having noted that the applicant was informed on 7 December 2017 of the procedure to obtain a copy of his TOEIC voice test from ETS, the respondent then set out an extract from Judge Craig’s decision referring to the applicant as having had an opportunity to have obtained the recording. The respondent stated,

You had an opportunity to challenge the ETS deception and to provide further documents and evidence at the JR hearing, but you did not. Judge Craig was therefore satisfied that from the evidence provided to the SSHD, that she was correct to conclude you had used deception in your application dated 25 October 2013 and the decision to refuse you further leave to remain on the basis of deception was correct.

23. The respondent then noted again a reference in the decision of 25 May 2018 refusing his protection claim that the applicant had acted in a fraudulent manner when relying on his TOEIC speaking test. The respondent commented that the applicant had not provided “any further evidence” in his appeal against this decision. The respondent claimed that the applicant never mentioned obtaining the ETS TOEIC voice recording in his JR and asylum hearings even though he obtained the recordings prior to the hearings. I pause to note that this assertion is inaccurate – the applicant only obtained the voice recording after his 2017 judicial review hearing.

24. Then respondent next stated,

Furthermore, if you were genuinely innocent of cheating it stands to reason that you would have submitted a complaint to ETS soon after receiving your voice recordings on 07 March 2017, not wait 7 years. The SSHD believes that in all probability you did not submit a complaint straight after receiving the voice recordings as you knew you had obtained your TOEIC certificate by deception, and that you submitted a complaint the same day you wrote your witness statement on 24 June 2024 for the purposes of supporting this application.

25. The respondent rejected the applicant’s contention that “identities may have been mixed up” by ETS by relying on findings in DK & RK v SSHD [2022] UKUT 00112 (IAC) and referred to Queensway College as being non-compliant in its Tier 4 responsibilities and its involvement in the criminal investigations of TOEIC cheating.

The investigation revealed that ETS’s professional auditing staff carried out two audits on Queensway College. On 16 April 2013, evidence of remote testing was seen. 50 candidates logged on to take the test but only 6 test takers were present. On 17 September 2013, a secret room was identified where ‘pilots’ (imposters) were taking the speaking and writing test on behalf of the candidates that were located in the examination room. During a search at Queensway College on 25 June 2014, documents relating to ETS TOEIC exams were discovered. The documents list tests taken between 19 March 2013 to 03 April 2013, that identify 26 candidates with names listed alongside them labelled ‘pilots’ and analysis of the voice recordings showed evidence of widespread cheating. Given this, the SSHD, on the balance of probability, does not accept that the TOEIC test taken on 15 May 2013 was conducted under genuine test conditions.

26. The respondent referred to the applicant having taken his TOEIC test 6.5 months before his leave expired and concluded that the applicant specifically selected Queensway College as he would be guaranteed to pass his TOEIC test. The respondent believed the applicant wanted his English Language results quickly and that the timeframe was “a likely factor” in using deception as it ensured he met the mandatory level before submitting his next application. The respondent set out an extract (paragraph 58) from MA (ETS – TOEIC testing) Nigeria [2016] UKUT 450 (IAC) in which the Tribunal explained that there could be various reasons why someone proficient in English would nevertheless choose to engage in TOEIC fraud (e.g. lack of confidence, fear of failure, lack of time and commitment and contempt for the immigration system). Having referred to that part in the applicant’s statement where he described the extent of his education in English and his English language tests, the respondent stated,

Your previous qualifications, and the qualifications you have gained since the TOEIC exam, and being adept in the English language does not prove that you did not engage a proxy-test taker to obtain your ETS TOEIC certificate in May 2013.

As stated earlier, your leave to remain in the UK was due to expire on 30 November 2013, therefore likely prompting you to use deception to ensure that you had the mandatory B2 level in English before submitting a further application.

27. The respondent said she was aware that candidates who used proxy testers attended the relevant test centre and she did not dispute that the applicant attended Queensway test centre on the day he purported to take his test, but that attendance did not prove he undertook the test himself. The respondent additionally relied on the adverse credibility findings by Judge Bartlett as indicative of the extent to which the applicant would go to remain in the UK. The applicant consequently failed to meet the requirements of LTR.4.2 of Appendix FM.

28. The respondent then considered whether the applicant could meet the Eligibility requirements of Appendix Private Life but concluded that the applicant had not resided in the UK for 20 years and that there were no very significant obstacles to his integration in Bangladesh. The respondent additionally noted the absence of any evidence of any significant ties the applicant had established in the UK. The respondent concluded there were no exceptional circumstances that would result in unjustifiably harsh consequences for the applicant if he were required to leave the UK such as would result in a breach of article 8 ECHR. The respondent also found there were no compassionate and compelling circumstances that might warrant a grant of leave outside the immigration rules.

29. The respondent concluded her assessment with the following:

Reasons why further submission do not amount to a fresh claim

I have considered your further submissions together with previously considered material and concluded that your further submissions, although rejected for the reasons given above, would have no realistic prospect of success before an immigration Judge, so they do not amount to a fresh claim.

30. Following correspondence pursuant to the Pre-Action-Protocol procedure, the applicant lodged his judicial review challenge on 22 May 2025. Permission was granted, at an oral renewal hearing, by Upper Tribunal Judge Mahmood on 30 October 2025.

The grounds of challenge

The applicant’s submissions

31. I outline the salient elements of the applicant’s legal challenge, as detailed in the judicial review grounds of challenge, the skeleton argument of Mr Singh KC, and his oral submissions.

32. By his first ground the applicant contends that the respondent failed to ask herself the correct question under paragraph 353 and reached an irrational conclusion. The respondent failed to put herself in the position of a Judge hearing a hypothetical appeal when considering whether there was more than a fanciful prospect of the applicant being able to show he had not cheated, as this would have been a material factor in any article 8 ECHR proportionality assessment.

33. The quotes in the challenged decision drawn from ETS cases were said to have been selective, and there was a failure to consider the principles extracted from these cases, including the observation that every case was likely to be fact-specific and the potential significance of oral evidence (Majumder & Qadir v SSHD [2016] EWCA Civ 1167, at [18] (Majumder & Qadir); Ahsan v SSHD [2017] EWCA Civ 2009 (Ahsan), [26], and [33]);

Ms Giovannetti was concerned to emphasise the extent to which the forensic landscape had changed since the Secretary of State’s initial, and frankly stumbling, steps in this litigation. The observations of the UT in SM and Qadir should not be regarded as the last word. Where the impugned test was taken at an established fraud factory such as Elizabeth College, and also where the voice-file does not record the applicant’s voice (or no attempt has been made to obtain it), the case that he or she cheated will be hard to resist. We were not ourselves taken to any of the underlying evidence, but I am willing to accept that that appears to be a reasonable summary of the effect of the recent decisions to which we were referred. However, I am not prepared to accept – and I do not in fact understand Ms
Giovannetti to have been contending – that even in such specially strong cases the observations in the earlier case-law to the effect that a decision whether the applicant or appellant has cheated is fact-specific are no longer applicable or that there is no prospect of their oral evidence affecting the outcome.

34. By way of example the applicant contends that the respondent only referred to paragraph 126 of DK & RK ETS: SSHD evidence; proof) India [2022] UKUT 00112 (DK & RK) where the Tribunal referred to the "virtual exclusion of suspicion of relevant error by ETS" and concluded that the "voice recognition process is clearly and overwhelmingly reliable”. The applicant contends that the respondent omitted any reference to what the Tribunal said in paragraph 127, which was that: “Where the evidence derived from ETS points to a particular test result having been obtained by the input of a person who had undertaken other tests, and if that evidence is uncontradicted by credible evidence, unexplained, and not the subject of any material undermining its effect in the individual case, it is in our judgment amply sufficient to prove that fact on the balance of probabilities”.

35. The applicant contends there was a failure to consider how his own evidence might undermine the effect of any ETS evidence in his case, and there was no reference to anything on the ‘other side of the ledger’. There was no consideration of how the courts and tribunals have held that every ETS/TOEIC case is fact sensitive and that all evidence, not just ETS evidence, must be considered in the round. At no stage did the respondent refer to the potential significance of the applicant’s oral evidence in a notional appeal in rebutting the allegation of cheating against him, or to Underhill LJ’s warning in Ahsan at [91] that he would be reluctant to accept that an allegation of deliberate dishonesty could be fairly determined against a person without them being given the opportunity to give oral evidence in rebuttal. Instead, the respondent essentially treated the evidence derived from ETS as determinative.

36. Although it was accepted that the voice file provided to the applicant by ETS did not contain the applicant’s voice, the ETS authorities (such as Ahsan and Varkey & Joseph (ETS – Hidden rooms) [2024] UKUT 142 (IAC) (Varkey & Joseph) make plain that arguments have been advanced that dishonest test centres may have submitted batches of proxy-made recordings without the knowledge of the person taking the test, and that there is a method of cheating involving the use of hidden rooms. To succeed in a notional appeal the applicant does not need to show that parallel rooms were being used and does not need to give working details of how a fraud may have operated without his knowledge.

37. The respondent failed to take account of relevant evidence that may entitle a Judge to conclude that the applicant had not cheated, including evidence that the applicant passed an in-house English language test with a score of 6, albeit that this occurred 14 months after the TOEIC test.

38. The applicant contends that the respondent’s belief that he cheated skewed her approach to the applicant’s submissions through the prism of disbelief. An example is given of the applicant’s explanation for taking the TOEIC test rather than the IELTS test being interpreted by the respondent as the applicant wanting his results quickly so he could rely on these results for his next application.

39. The respondent wrongly asserted that no evidence was provided by the applicant in his first protection appeal as the applicant had challenged the allegation of cheating in his witness statement prepared for that appeal, and the respondent made a mistake of fact in asserting that the applicant had obtained the voice recording of his speaking test from ETS prior to his first JR challenge.

40. The applicant further contends that the respondent improperly relied on the adverse credibility findings by Judge Bartlett in respect of his claim to be gay to conclude that the applicant’s “… actions are not reflective of someone who claims to be innocent of the ETS allegation.” It is argued that the respondent failed to consider that the applicant could have lied about one matter but be telling the truth about his speaking test, and he refers to the respondent’s asylum policy instruction on further submissions, which state that: “You must not conclude there is no realistic prospect of success just because the claimant’s previous account was found to lack credibility. A claimant may have been untruthful in the past but be telling the truth now”.

41. By his second ground of challenge the respondent asserts that the respondent misunderstood the nature of the decision by Judge Craig. Judge Craig was considering the lawfulness of the respondent’s decision: it was not a merits assessment. The applicant takes issue with the assertion in the challenged decision that the applicant had the opportunity of providing evidence at the judicial review hearing but did not. Judge Craig did not admit late evidence from the applicant as this evidence was not before the respondent and was therefore irrelevant to the lawfulness of the respondent’s decisions in January and December 2016. Nor did Judge Craig find that the decision of 19 January 2016 was “correct”. Judge Craig decided that the respondent was legally entitled to reach her decision based on the evidence before her when her decisions were made and that it was not marred by any public law unlawfulness. Judge Craig did not decide that the applicant had in fact cheated. The respondent’s claim to the contrary was an obvious error.

42. The applicant contends there is no issue estoppel at play as to whether the applicant cheated given the parameters of the judicial review decision. As there was no judicial consideration of the merits of the applicant’s TOEIC claims there can be no issue estoppel (Virgin Atlantic Airways ltd v Zodiac Seats UK ltd [2013] UKSC 46, at [17]) (Virgin Atlantic Airways Ltd).

43. The applicant disputes the applicability of the Henderson v Henderson principle (an abuse of process principle that precludes a party from raising in subsequent proceedings matters which were not, but could and should have been, raised in earlier proceedings). The applicant takes issue with the factual premise of the respondent’s position in the Detailed Grounds of Defence that the applicant failed to advance an article 8 ECHR claim on the basis that he did not cheat in his two appeals and the First-tier Tribunal (IAC) therefore proceeded on the basis the applicant had cheated. That is said to be wrong in two respects: (i) in his first appeal the applicant did claim in his witness statement dated 29 June 2018 that he did not cheat, and (ii) in any case, neither Judge Bartlett nor Judge Scott “proceeded on the basis the appellant had cheated”; rather, they made no findings at all as to whether the applicant had cheated, and proceeded on the basis that Judge Craig had decided that the respondent was entitled to conclude that the applicant had cheated on the basis of the material before her at the time of her decision on 19th January 2016.

44. The applicant further contends that the Henderson v Henderson principle simply does not operate in determining whether there is a fresh claim under paragraph 353. There are two limbs to the paragraph 353 test. The first limb is whether the further submissions have “not already been considered”. That is purely a question of fact (AK (Sri Lanka) v SSHD [2009] EWCA Civ 447, at [25]) and involves considering whether the submissions have in fact been previously raised (ZA (Nigeria) v SSHD [2010] EWCA Civ 926, at [29]). The first limb is not whether the further submissions ‘could have been previously considered’, but whether they have in fact been previously considered. The second limb is whether the further submissions, taken together with previously considered material, create a realistic prospect of success. That is a (modest) merits test. Again, there is no scope for the Henderson v Henderson abuse of process principle to apply, and no authority suggests otherwise. The applicant contends that the respondent is conflating the requirements for a fresh claim with the certification provisions under section 96 of the 2002 Act, which in effect incorporate a Henderson v Henderson principle.

45. The applicant contends there is no need to show that the respondent’s decision refusing him further leave to remain in 2016 was unlawful for his article 8 ECHR claim to succeed in a hypothetical appeal. Mr Singh KC placed reliance on Patel (historic injustice; Nationality, Immigration and Asylum Act 2002 Part 5A) [2020] UKUT 351 (IAC) (Patel), noting that the 3rd headnote included, as an example of ‘historical injustice’, a situation exemplified in Ahsan. Mr Singh contends that paragraph 33(a) of Ahmed (historical injustice explained) [2023] UKUT 165 (IAC) (Ahmed) is arguably wrong as there was no need to establish a public law error in an historic injustice case. Mr Singh KC submits that ‘wrongful operation’ means factually wrong, not that it has to be unlawful. He submits that Rahman v SSHD [2022] EWCA Civ 310 (Rahman) must be considered in light of its particular facts and the absence of any criticism of Ahsan historic injustice. Mr Singh KC contends that the current challenge is not a collateral attack on any judicial decision (as in R (Abidoye) v SSHD [2020] EWCA Civ 1425 (Abidoye)).

46. The applicant rejects the respondent’s submission that any hypothetical article 8 ECHR claim was bound to fail. If it were found in a human rights appeal that the applicant did not cheat, this would have a bearing on a Judge’s article 8 proportionality assessment, as indicated by Underhill LJ in Ahsan at [115], [116] and [120] and in Patel (historic injustice; NIAA Part 5A) [2020] UKUT 351(IAC) at [47]. Underhill LJ was envisaging a situation in Ahsan where a lawful immigration decision is proven to have been wrong by a judicial finding in a human rights appeal. Applying that approach to the instant case, if the applicant is found not to have cheated a Judge would be entitled to consider what would have happened to the applicant if the wrong decision had not been made. The applicant is likely to have been granted further leave to remain, he would have applied for a Masters degree, and eventually Indefinite Leave to Remain (ILR). But for the wrongful decision the applicant would have further entrenched and expanded his private life, an opportunity he lost. An appeal could be allowed as the applicant had already established a private life in the UK having lived here for 12 years and it would be disproportionate, in light of the wrongful decision, to require him to leave given that the respondent would be expected to reconstruct things as they were (or ought to have been).

The respondent’s submissions

47. I outline the salient elements of the respondent’s defence, as set out in the Detailed Grounds of Defence, the skeleton argument of Mr Biggs and his oral submissions.

48. The respondent contends that Henderson v Henderson applies to the consideration under paragraph 353 and that it is not now open to the applicant to run an historical injustice argument as this was not raised and advanced in his earlier appeals (see R (Tomlinson) v. SSHD [2025] EWCA Civ 253, [2025] KB 547 (Tomlinson) in particular at [66]). In these circumstances, it was not now open to the applicant to dispute the respondent’s case that the applicant cheated in his TOEIC speaking test. The applicant’s argument that the Henderson v Henderson principle is not applicable is contrary to authority and principle and is based on a misunderstanding of the second ‘merits’ limb of the paragraph 353 test. A First-tier Tribunal (IAC) Judge hearing a hypothetical appeal would be entitled to apply the law, including the res judicata and Henderson v Henderson principles. The respondent relies on (Abidoye) at [57]:

Although the doctrine of res judicata may not apply with its full rigour in immigration proceedings, the rule in Henderson v Henderson (1843) 3 Hare 100 does preclude an applicant from waiting until his appeal rights are exhausted, and then raising different legal arguments in a claim for judicial review of the same decision that was unsuccessfully appealed, or of a further decision taken to implement or enforce it, in an attempt to delay or prevent his lawful removal from the jurisdiction. Irrespective of the merits of the new arguments, that is an abuse of the process and the message needs to go out that this type of abuse will not be tolerated. The appellant is not entitled to have endless bites of the same cherry.

49. It follows that when considering whether the applicant’s further submissions had a ‘realistic prospect of success’ before a FTT Judge for the purposes of the second merits limb of paragraph 353, a reasonable decision-maker would have to acknowledge that it would not be open to the applicant to have yet another “bite of the cherry” to advance a denial of the allegation that he cheated on a TOEIC and its implications for his immigration status. That would be contrary to the rule in Henderson v. Henderson which applies fully in immigration law. There was said to be nothing in Mr Singh KC’s point relating to s.96 certification in the 2002 Act as, if this was right, Tomlinson would be wrongly decided, and it would also mean that Abidoye was wrong. In any event, the fact that Parliament has legislated for a particular control mechanism through s.96 does not exclude the common law rules of res judicata and Henderson.

50. The respondent contends that the decision-maker was right to rely upon the fact that the applicant had cheated in his 2013 TOEIC test in the particular circumstances of this case, and doing so does not indicate any error of approach (by failing to acknowledge that a FTT Judge might take a different view of this factual issue to that of the decision-maker, or otherwise). The applicant’s 2nd ground is said to be misconceived as the respondent’s 19 January 2016 decision was upheld as being lawful by Judge Craig, resulting in a binding decision that generated an issue estoppel. The respondent did not act unlawfully or wrongly in so concluding. Judge Craig authoritatively determined the lawfulness of the respondent’s decision that the applicant cheated and an issue estoppel arises (Tomlinson at [66], R (Majera) v. SSHD [2021] UKSC 46, [2022] AC 461 at [43]-[56] and N3 v. SSHD [2025] UKSC 6, [2025] 2 WLR 386 at [92]). In reliance on Khan [2018] EWCA Civ 1684 (Khan), Mr Biggs submitted that if the appellants in that case had not proposed an alternative procedure there would have been final and binding judicial review decisions and it would not have been open to the appellants to then make further human rights submissions relying on historical injustice.

51. Mr Biggs further contends that the applicant cannot rely on an historical injustice argument as this requires an unlawful decision, and a wrong decision will not suffice (Mousasaoui v SSHD [2016] EWCA Civ 50 (Mousasaoui) and Rahaman at [20]-[26]). Any theoretical future finding by a Judge that the applicant did not cheat could not affect the applicant’s immigration history as the curtailment decision was lawful. In the event the respondent would still have made a valid decision on 19 January 2016 regardless of any findings of fact by a First-tier Tribunal (IAC) Judge (applying Otshudi v SSHD [2004] EWCA Civ 893, at [10] – [11]).

52. Mr Biggs explained that the context of Ahsan was a challenge to liability to removal notices issued under s.10 of the Immigration and Asylum Act 1999 which would be unlawful if they were wrong in fact (the requirement of dishonesty being a precedent fact). Having concluded that an out of country right of appeal would not be suitable and that a human rights appeal would be the most appropriate forum to determine the issue of whether an individual cheated, a ‘work around’ was established to enable the cheating issue to be determined in a statutory human rights appeal context because the First-tier Tribunal (IAC) did not have jurisdiction to determine the lawfulness of the s.10 decisions. The respondent would then exercise her discretion to put the individual in a position they would have occupied but for the unlawful decision. Ahsan, particularly at [120], was therefore concerned with the issue of unlawfulness, as a finding that an individual had not cheated rendered the s.10 decision ultra vires. This, submitted Mr Biggs, explained why the Presidential panel in Ahmed treated the observation of Underhill LJ in Ahsan as being concerned with public law error. This is consistent with the Court of Appeal in Moussaoui, particular at [27] and SSHD v S & VLT [2025] EWCA Civ 188, at [105]. Mr Biggs relies on [33] (a) of Ahmed which states, in relation to the features of the description of historical injustice:

First, there must have been a wrongful operation of immigration functions. The examples in the headnote (and discussed in paragraphs 42-48) of Patel are all instances of well established public law errors.

53. Mr Biggs submitted that as the applicant is merely denying having cheated, there is no realistic prospect of him being successful in any future article 8 ECHR claim. If the applicant cannot show that he has been prejudiced by the wrongful operation of the SSHD’s powers of immigration control, the fact that he did not cheat on an English test is irrelevant in the circumstances of this case, because it would have no bearing on his immigration status or his private life more broadly.

54. In any event, the cheating issue, even if resolved in the applicant’s favour, could not realistically result in a hypothetical appeal being allowed before a Judge applying section 31(2A) of the Senior Courts Act 1981. The applicant would simply be repeating his evidence put forward in his 2018 statement and which was not developed in the appeals in 2018 or 2021. The applicant had only scored band 5s in an IELTS English language test he undertook in February 2012, and in an IELTS test taken on 10 July 2014 he scored 5 in a listening test, although his overall band was 6. Mr Biggs observed that the score of 5 did not meet the B2 CEFR level and he submitted that those scores were much lower than the applicant’s TOEIC test scores. Varkey & Joseph at [99] and [107], indicated that Queensway College was a ‘fraud factory’ test centre and that the evidence of hidden rooms did not indicate that those using the hidden rooms would not have been unaware of the fraud. Following DK & RK the bottom line was that if there is evidence that a test score is invalid and the recorded voice is not that of the applicant then this constitutes strong evidence of cheating which would need to be contradicted by credible evidence.

55. Mr Biggs submitted that the respondent did not pay only lip-service to the paragraph 353 test and she was entitled to treat her own view as a starting point. Further, reading the decision fairly and in full, the reference to Judge Craig’s decision being ‘correct’, properly understood, is that Judge Craig properly concluded that the respondent was entitled to find that the applicant cheated.

Discussion

56. Paragraph 353 of the Immigration Rules materially provides as follows:

When a human rights or protection claim has been refused…and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(i) had not already been considered; and

(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection…

57. It is sufficiently clear from the construction of the paragraph that the assessment of whether the content of the material that has already been considered, and whether a realistic prospect of success has been created, must relate to content in a previous human rights or protection claim. Paragraph 353 is solely concerned with protection and human rights claims and is framed by reference to these two types of claims. It follows that paragraph 353 does not apply to the content of material considered, for example, in a previous application that did not constitute a human rights or protection claim or a judicial review of that previous application.

58. The approach to determining whether the respondent has made a lawful decision under paragraph 353 is well settled. The test for applying paragraph 353 was set out in the judgment of Buxton LJ in WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495 at paragraphs 6 and 7 as follows:

There was broad agreement as to the Secretary of State's task under rule 353. He has to consider the new material together with the old and make two Judgements. First, whether the new material is significantly different from that already submitted, on the basis of which the asylum claim has failed, that to be Judged under rule 353(i) according to whether the content of the material has already been considered. If the material is not "significantly different" the Secretary of State has to go no further. Second, if the material is significantly different, the Secretary of State has to consider whether it, taken together with the material previously considered, creates a realistic prospect of success in a further asylum claim. That second Judgement will involve not only judging the reliability of the new material, but also judging the outcome of tribunal proceedings based on that material. To set aside one point that was said to be a matter of some concern, the Secretary of State, in assessing the reliability of new material, can of course have in mind both how the material relates to other material already found by an adjudicator to be reliable, and also have in mind, where that is relevantly probative, any finding as to the honesty or reliability of the applicant that was made by the previous adjudicator. However, he must also bear in mind that the latter may be of little relevance when, as is alleged in both of the particular cases before us, the new material does not emanate from the applicant himself, and thus cannot be said to be automatically suspect because it comes from a tainted source.

The rule only imposes a somewhat modest test that the application has to meet before it becomes a fresh claim. First, the question is whether there is a realistic prospect of success in an application before an adjudicator, but not more than that. Second, as Mr Nicol QC pertinently pointed out, the adjudicator himself does not have to achieve certainty, but only to think that there is a real risk of the applicant being persecuted on return. Third, and importantly, since asylum is in issue the consideration of all the decision-makers, the Secretary of State, the adjudicator and the court, must be informed by the anxious scrutiny of the material that is axiomatic in decisions that if made incorrectly may lead to the applicant's exposure to persecution. If authority is needed for that proposition, see per Lord Bridge of Harwich in Bugdaycay v SSHD [1987] AC 514 at p 531F.

59. The determination of the respondent is only capable of being impugned on Wednesbury grounds (see WM at [8]). The Court of Appeal continued, at [10] and [11]:

… a court when reviewing a decision of the Secretary of State as to whether a fresh claim exists must address the following matters.

First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return: see §7 above. The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting-point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State's decision.

60. In determining whether the respondent was rationally entitled to conclude that there was no realistic prospect of success in a notional appeal before a First-tier Tribunal Judge I must additionally consider the public interest factors identified in s.117B of the 2002 Act, factors that a Judge would be obliged to consider.

61. I shall begin my consideration of the lawfulness of the decision of 10 March 2025 by looking at the decision in isolation of the arguments advanced on behalf of the respondent relating to the Henderson v Henderson principles, issue estoppel and res judicata, the requirements for advancing an historical injustice argument and its relevance to a hypothetical human rights claim.

1st ground

62. The respondent has previously considered whether the applicant cheated in his TOEIC speaking test in her earlier decisions dated 19 January 2016, 22 February 2016 (an Administrative Review decision of the earlier decision), and a supplementary decision dated 7 December 2016. None of these decisions were made in the context of human rights or protection claims. Both of the applicant’s previous appeals before the First-tier Tribunal (IAC) related to protection claims. In was not in dispute between the parties that paragraph 353 applied given the two earlier protection and human rights claims made by the applicant.

63. The respondent’s decision dated 25 May 2018 referred to her earlier finding that the applicant cheated in the 15 May 2013 test, although this was only in the context of a consideration of the applicant’s credibility under s.8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. The applicant does deal with the allegation of deception at [25] to [33] of his statement dated 29 June 2018, made in preparation for his appeal hearing. As stated in [16] above, there was no free-standing article 8 ECHR claim pursued by the applicant at his appeal hearing. Whilst Judge Bartlett set out the bare facts of the respondent’s allegation of cheating and the decision of Judge Craig, he did not determine for himself whether the applicant cheated.

64. In respect of the 1st ground of challenge, I accept Mr Singh KC’s submission that the respondent made a factual error when she stated that the applicant obtained his ETS voice recording before his judicial review hearing (but not before the asylum appeal hearing). The respondent relied on this factual error as an indication that the applicant already knew he had obtained his TOEIC certificate by cheating. To the extent that the respondent has relied on this mistake in her own assessment of whether the applicant cheated, she had taken into account an irrelevant consideration. It must stand to reason that the respondent therefore took account of the same irrelevant consideration when assessing whether there was a realistic prospect of success in a hypothetical appeal before a Judge. The materiality of this element of unlawfulness remains to be determined.

65. I am additionally satisfied that the respondent made a factual error when stating that the applicant had a further opportunity to challenge the ETS allegation at his 2018 appeal hearing but failed to provide any further evidence. It may be that the respondent had in mind the absence of any independent corroborative evidence, but this is not clear from the decision. The respondent’s assertion is factually wrong as the applicant had provided further evidence in the form of his statement, in which, across 9 paragraphs, he gave a relatively detailed account of why he did not cheat in light of his educational background, details of his journey to Queensway College, a detailed description of taking the Speaking test, and the impact on him of the finding that he cheated. To the extent that the respondent appeared to draw an adverse inference from the absence of further evidence at the 2018 appeal, the respondent again took into account or gave weight to an irrelevant consideration.

66. Mr Singh KC contends that the decision, read holistically, is self-serving and one sided. In line with established authority the respondent first carried out her own assessment of the merits of the further submissions. She was entitled to do so. Criticism is nevertheless made that the respondent made selective use of extracts from caselaw, e.g. DK & RK at paragraph 126, but not to paragraph 127 (see paragraph 34 above). Both paragraphs are part of the Upper Tribunal’s ‘general conclusions’ and a failure to mention paragraph 127 does not lead to a conclusion that it was not considered. Criticism is also levelled at an inference drawn by the respondent, based on the applicant’s 2024 statement, that he wanted his English language test results quickly and that the timeframe in which he wanted his result was considered to be a likely factor in ensuring he obtained the requisite test scores before submitting his next application. I find the respondent was entitled to draw the inference she did. At this stage of the decision, she was undertaking her own consideration of the merits and aligned her findings by reference to the passage in MA (ETS – TOEIC testing) Nigeria [2016] UKUT 450 at [57]. Nor can the decision be criticised for taking into account the adverse credibility findings made by Judge Bartlett who concluded that the applicant fabricated his protection claim. The respondent was entitled to rely on the fact that the applicant had previously been dishonest in his protection claim to support a finding that the applicant had cheated.

67. There is nevertheless some force in Mr Singh’s contention that the decision, read as a whole, is sufficiently one sided such that the respondent has acted unlawfully in her assessment of whether the applicant has a realistic prospect of success in a hypothetical appeal before a Judge. Firstly, the section of the decision dealing with the core assessment under paragraph 353 is brief in the extreme (see [29] above). The respondent posed to herself the correct question, but she had not provided any additional reasoning to support her conclusion. Secondly, nowhere in the decision is there any reference to the potential significance of the applicant’s oral evidence in an appeal before a Judge. The potential significance of oral evidence when assessing the issue of cheating is clear from the relevant authorities. In Ahsan Underhill LJ stated, at paragraph 29, that much will turn “… on the UT’s assessment of the appellant’s oral evidence”. At [91] his Lordship stated, “Further, even if the Secretary of State’s evidence is as strong as she says, I would be reluctant to accept that it was possible fairly to determine an allegation of this character – that is, an allegation of deliberate dishonesty, with serious implications for the Appellants’ rights and reputation – without them being given the opportunity to give oral evidence in rebuttal.” One of the relevant factors in considering an allegation of dishonesty identified in Majumder & Qadir was “… how an individual accused of dishonesty performed under cross-examination….” Thirdly, whilst the respondent was entitled to her inference described in the preceding paragraph (that the applicant wanted his results quickly to ensure he had the correct test scores before he submitted his FLR application), the explanation provided by the applicant in his statement - that he chose the TOEIC test because there was a long wait for the results of the IELTS tests – was, prima facie, rational. Nowhere in the decision does the respondent consider that a Judge may accept this explanation. Fourthly, the authorities indicate that every TOEIC case will be fact-sensitive, with the outcome determined on the basis of the evidence adduced by the parties (Majumder & Qadir at [27], Ahsan at [28], Varkey & Joseph at [114], p.731). There is little indication in the decision, when undertaking the paragraph 353 assessment, that the decision-maker was aware that a Judge hearing a hypothetical appeal would need to consider the evidence as a whole.

2nd ground

68. By the 2nd ground of appeal Mr Singh KC contends that the respondent misunderstood the nature of the judicial review challenge before Judge Craig. Mr Singh KC focuses on the paragraph in the challenged decision set out at [22] above. He submits that it was not the case that the applicant failed to provide further evidence; he had produced a statement, but this was not admitted by Judge Craig as it was a judicial review hearing and the statement had not been considered by the respondent. Mr Singh KC further contends that the decision-maker failed to appreciate the distinction between a judicial review and an appeal on the merits when stating that Judge Craig found the respondent’s decision was “correct”.

69. Mr Biggs submits that the reference to ‘correct’ related to the respondent being entitled to conclude that the applicant had cheated and that there was no misunderstanding. I do not agree. In the context of the respondent’s decision, and given the absence of any other indication that the decision-maker appreciated the review nature of a judicial review, I find the word ‘correct’ indicates that it was used in a descriptive or factual sense in respect of the merits of the respondent’s finding. This misunderstanding is relevant to the 2nd limb of the paragraph 353 test. To the extent that the respondent should have assessed whether the further submissions created a realistic prospect of success in a hypothetical merits appeal (it is not even clear that she did so given the absence of reasoning in that section of her decision dealing with paragraph 353), she would have wrongly concluded and wrongly taken into account that Judge Craig had already found the respondent’s 2016 decisions to be ‘correct’ in a factual sense relating to the merits of the respondent’s 2016 decisions.

70. Through a combination of grounds 1 and 2, I am satisfied that the respondent’s decision does contain unlawful elements.

The Henderson v Henderson principle

71. Mr Biggs however submits that the principle in Henderson v Henderson would be applied by a Judge of the First-tier Tribunal (IAC) and this must be considered in respect of the 2nd limb of the paragraph 353 test. He argues that the Henderson v Henderson principle applied fully in immigration law, that the applicant could have raised his claim of not having cheated in his earlier statutory appeals, and that when considering whether the applicant’s further submissions had a ‘realistic prospect of success’ a reasonable First-tier Tribunal (IAC) Judge would be obliged to acknowledge that it would not be open to the applicant to have another opportunity to advance a denial of the allegation.

72. The Henderson v Henderson principle provides that an individual is barred from litigating a claim that has already been adjudicated upon or which could and should have been brought before the court in earlier proceedings arising out of the same facts (see Virgin Atlantic Airways Ltd at [17], [18], [24] and [25]). It is an aspect of the principles relating to abuse of process and although distinct from action and issue estoppel it shares the underlying public interests including ensuring finality of litigation.

73. I find that the applicant could have raised as an issue requiring determination his contention that he did not cheat. Mr Singh KC submitted that the applicant did raise this issue in his statement of 29 June 2018 and that the respondent referred to it in her decision dated 25 May 2018 refusing the protection claim. I do not consider that the applicant raised the cheating issue as one that required judicial resolution. The grounds of appeal challenging the 25 May 2018 decision made no reference to the cheating issue and the issue was not advanced at the actual hearing. Nor is there any indication that it was raised or advanced as an issue requiring judicial resolution in the litigation that led to the First-tier Tribunal (IAC) decision of 9 November 2022. It was open to the applicant to have raised this issue at either of these appeals. No explanation has been provided for his failure to do so.

74. For the following reasons I am not however persuaded that the Henderson v Henderson principle is applicable in the context of an assessment under paragraph 353.

75. Mr Biggs argues that the Henderson v Henderson principle applies in respect of the 2nd limb of paragraph 353 i.e. that a First-tier Tribunal (IAC) Judge would be entitled to apply the principle and regard the proceedings as an abuse of process, presumably with the consequences that the appeal would either not be entertained or would be dismissed on that basis. That the Henderson v Henderson principle applies generally in public law is clear (see Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273 (Thrasyvoulou), mentioned in paragraph 43 of R(Tomlinson)). The statutory appeal regime under part 5 of the Nationality, Immigration and Asylum Act 2002 is however a distinct area of public law.

76. A person may bring an appeal against a decision, inter alia, to refuse a protection claim or a human rights claim (s.82 of the 2002 Act). The grounds upon which that person may bring an appeal are set out in s.84 of the 2002 Act. This includes a ground that the decision is unlawful under s.6 of the Human Rights Act 1998. S.85 of the 2002 Act is concerned with the matters that must be considered in an appeal, which essentially concern the grounds of appeal. S.86 of the 2002 Act is headed ‘determination of appeal’. It indicates that, on an appeal under s.82(1), the tribunal must determine any matter raised as a ground of appeal, and any matter which s.85 requires it to consider. The scope of matters that can be determined by the First-tier Tribunal (IAC) is therefore tightly prescribed by statute. A Judge of the First-tier Tribunal (IAC) may only determine matters raised as a ground of appeal or those which s.85 requires it to consider. On the face of the statutory framework there is no provision for the First-tier Tribunal (IAC) to dismiss an appeal on the basis of an abuse of process or to not entertain an appeal because there has been an abuse of process. I note that Mr Biggs did not draw to the Tribunal’s attention any instance in which the First-tier Tribunal (IAC) has determined (or not determined) an appeal on the basis that the bringing of the appeal constituted an abuse of process under the Henderson v Henderson principle.

77. The authorities relied on by Mr Biggs, in which the Henderson v Henderson principle was applied in the immigration law context, all related to judicial review proceedings. Mr Biggs relies on R (Abidoye). This was a judicial review challenge to a decision by the SSHD to make a fresh deportation order in circumstances when the appellant had been successful in his appeal against an earlier deportation order based on the same criminal conviction, but where there was a change in the law brought about by the introduction of Part 5A of the 2002 Act. Following the fresh deportation order the appellant unsuccessfully appealed a refusal of a new human rights claim. The Upper Tribunal dismissed a legal challenge to the First-tier Tribunal (IAC) decision holding that the change in the law justified the SSHD in making a different evaluation of the proportionality of the interference with the appellant’s article 8 ECHR rights. Following the making of a new deportation order the applicant lodged a judicial review based for the first time on issue estoppel and the presumption against retrospective legislation. The Court dismissed the appeal having found that it was bound by an earlier Court of Appeal decision (MA (Pakistan) [2019] EWCA Civ 1252). At paragraphs 55, 57 and 58 the Court stated:

55. There is yet another reason why this appeal must fail, which did not arise in MA (Pakistan). This is the aspect of the case to which I referred at the beginning of this judgment as having a wider practical importance in the field of immigration. The appellant has raised arguments in these judicial review proceedings which he could and should have raised before the FtT and the Upper Tribunal on the substantive appeal against the 2016 decision. No good reason has been put forward for the failure to advance them earlier.

…

57. Although the doctrine of res judicata may not apply with its full rigour in immigration proceedings, the rule in Henderson v Henderson (1843) 3 Hare 100 does preclude an applicant from waiting until his appeal rights are exhausted, and then raising different legal arguments in a claim for judicial review of the same decision that was unsuccessfully appealed, or of a further decision taken to implement or enforce it, in an attempt to delay or prevent his lawful removal from the jurisdiction. Irrespective of the merits of the new arguments, that is an abuse of the process and the message needs to go out that this type of abuse will not be tolerated. The appellant is not entitled to have endless bites of the same cherry.

58. Matters would be different if fresh evidence came to light, or the underlying factual circumstances had changed in a material respect, but that is the sort of scenario that would generally be covered by Rule 353 (and even in a private law context might justify departure from the full rigour of an issue estoppel). In this case, the Secretary of State correctly decided that the test for a fresh claim under that Rule was not met.

78. It is apparent from the quote above, and from the fact that R(Abidoye) was a judicial review challenge, that this is not authority for the proposition that the First-tier Tribunal (IAC) is statutorily empowered to either dismiss or not entertain an appeal on the basis that the issues now being raised could and should have been raised in an earlier appeal. R(Tomlinson), upon which Mr Biggs also relied for support, was also a judicial review claim.

79. I am fortified in my conclusion by reference to the availability of certification under s.96 of the 2002 Act. This provides, in material part,

Earlier right of appeal

(1) A person may not bring an appeal under section 82 against a decision (“the new decision”) if the Secretary of State or an immigration officer certifies—

(a) that the person was notified of a right of appeal under that section against another ... decision (“the old decision”) (whether or not an appeal was brought and whether or not any appeal brought has been determined),

(b) that the claim or application to which the new decision relates relies on a ground that could have been raised in an appeal against the old decision, and

(c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that ground not having been raised in an appeal against the old decision.

80. The effect of s.96 is to incorporate the Henderson v Henderson principle into the statutory framework relating to statutory immigration appeals. If the applicant’s representations are treated as a fresh claim, then the respondent would have the option of certifying that fresh claim under s.96. The existence of s.96 would not be necessary if a First-tier Tribunal (IAC) Judge was empowered to dismiss an appeal or not entertain an appeal based on the Henderson v Henderson principle. In his oral submissions Mr Singh KC submitted that, on the facts of this case, the respondent would be unable to rely on s.96 as the applicant had ‘raised’ the issue of his cheating on his earlier appeal as it formed part of the applicant’s witness statement. I do not need to determine whether it was raised within the sense understood in s.96. I merely observe that it was not relied on as a ground of appeal and, on one view, it was not therefore raised as a principal controversial issue in any earlier appeal.

81. While the failure of the applicant to have raised his claim not to have cheated as an issue requiring determination is a factor that a Judge may legitimately take into consideration when determining whether the applicant had in fact cheated and, possibly, in respect of any proportionality assessment, this is only one factor to be considered in the 2nd limb of the paragraph 353 test and is not determinative (I observe that no abuse of process argument was articulated by the respondent in her decision under challenge).

Issue estoppel / res judicata

82. Mr Biggs contends that the applicant’s 2nd ground is misconceived as the respondent’s 19 January 2016 decision was held to be lawful by Judge Craig, resulting in a binding and authoritative decision generative of an issue estoppel, and the respondent did not act unlawfully or wrongly in so concluding. The respondent further contends that the principle of res judicata / issue estoppel arises on the fact of this judicial review and that any First-tier Tribunal (IAC) Judge would be bound by the decision of Judge Craig. Issue estoppel prevents a party from relitigating an issue that is necessarily common to both parties in earlier litigation which was decided in the earlier litigation (see Virgin Atlantic Airways Ltd at [17]; Thoday v Thoday [1964] P181, 197 -198).

83. R(Tomlinson) is a recent authority considering res judicata / issue estoppel. Mr Tomlinson succeeded in an appeal before the First-tier Tribunal (IAC) against a decision to refuse to revoke a deportation order. Following his successful appeal to the First-tier Tribunal (IAC) he applied for entry clearance but was refused due to his conviction. His judicial review of the entry clearance officer’s decision was granted on the basis that the entry clearance office failed to give effect to the decision of the First-tier Tribunal (IAC) and that it was unlawful to refuse entry clearance in relation to the same conviction as was the subject of the revoked deportation order. Having considered the relevant authorities Lady Justice Falk held, at [66]:

I would draw the following conclusions from this review of the caselaw:

a) Lord Bridge's statement of principle in Thrasyvoulou is of general application. There is no reason in principle why it should not apply to decisions of statutory tribunals in immigration cases, and in particular to the FTT's jurisdiction to determine a human rights claim under s.82 of the NIAA.

b) As the discussion in Hackney and Munjaz shows, there may be particular difficulties in applying principles of res judicata in relation to matters decided in earlier judicial review proceedings. But neither this case, nor Lord Bridge's reference to cases where "where the statute has created a specific jurisdiction for the determination of any issue which establishes the existence of a legal right", is concerned with matters decided in earlier judicial review proceedings.

c) Issue estoppel requires an identity of issue. This will very commonly not be the case in an immigration context, because the relevant matter (such as a claim to asylum) is being assessed at a different time and in the light of the then prevailing circumstances. In those circumstances the Devaseelan guidance will apply. That guidance applies to the proper approach to facts and evidence which has been considered in an earlier decision, where the issue for determination in the later decision is different because it is being determined at a different time.

d) If, exceptionally, identical issues do arise between the same parties in successive appeals to the FTT, then in principle issue estoppel may apply, subject always to the "special circumstances" exception referred to in Arnold v NatWest and Virgin Atlantic.

e) Further, even where the issues are not identical, to the extent that facts are relied on that are "not materially different" from those put before the first adjudicator, they should be regarded as already settled under the Devaseelan guidance, for reasons of fairness that also underpin res judicata.

f) The fact that the earlier appeal to the FTT may have related to a different kind of decision of the Respondent (such as, in this case, whether to revoke a deportation order as opposed to whether to grant entry clearance) does not prevent issue estoppel if the same issue forms a necessary part of the decision-making in each case. This reflects the distinction between issue estoppel and cause of action estoppel.

g) Where, as here, a judicial review challenge is made on the basis of a failure by the Secretary of State to follow an earlier determination of an issue by the FTT, principles of issue estoppel can and should be applied by analogy, recognising that the complaint is about administrative action following earlier tribunal proceedings, rather than successive proceedings: TB (Jamaica) and Al-Siri, above.

84. The reference in a) to Lord Bridges statement in Thrasyvoulou relates to the following, at page 298:

In relation to adjudications subject to a comprehensive self-contained statutory code, the presumption, in my opinion, must be that where the statute has created a specific jurisdiction for the determination of any issue which establishes the existence of a legal right, the principle of res judicata applies to give finality to that determination unless an intention to exclude that principle can properly be inferred as a matter of construction of the relevant statutory provisions.

85. None of the authorities relied on by Mr Biggs supported his contention that a judicial review judgment which held that the decision under review was one lawfully open to the decision-maker, would then be binding, in respect of the merits of the reviewed decision, on a later Court or Tribunal tasked with considering the merits of a different decision by the decision-maker that related to the same issue. The difficulty of applying issue estoppel in respect of matters considered in earlier judicial review proceedings was identified by Lady Justice Falk, who also noted that Lord Bridge's reference to cases "where the statute has created a specific jurisdiction for the determination of any issue which establishes the existence of a legal right" was not concerned with matters decided in earlier judicial review proceedings.

86. The reference in a) of Lady Justice Falk’s conclusion in R(Tomlinson) relates to the application of the issue estoppel principle to the determination of a specific issue in a decision of the First-tier Tribunal (IAC) that will be binding on subsequent decisions that involve the same issue. Judge Craig found that the respondent was lawfully entitled to conclude that the applicant cheated. There was however no judicial assessment or determination of the merits of the applicant’s claim that he had not been dishonest. Judge Craig expressly excluded further evidence that the applicant sought to admit. The applicant did not advance his claim to have not cheated as a principal controversial issue at either of his statutory appeals. Although Judge Bartlett referred to the respondent’s 2016 decisions and to Judge Craig’s decision, Judge Bartlett did not determine this issue. There has been no judicial consideration or definitive determination of the merits of the applicant’s claim not to have cheated. There has been no final determination by a Court or Tribunal of the specific issue of whether the applicant cheated. In these circumstances I reject Mr Biggs’ contention that the decision of Judge Craig is a binding issue estoppel in respect of the issue whether the applicant cheated.

Historical injustice

87. Mr Biggs contends that, to the extent that the applicant relies on establishing the existence of an historical injustice as the mechanism for advancing an article 8 ECHR claim, he is unable to do so as an historical injustice requires the existence of an unlawful decision by the respondent and a wrong decision by the respondent will not suffice. Mr Biggs supports his contention by pointing out that in Ahsan, in respect of those appellants who challenged the decisions under s.10 of the Immigration and Asylum Act 1999, any hypothetical appeal before a Judge who concluded that there had been no cheating would render the s.10 decisions unlawful. There was therefore public law unlawfulness.

88. I accept Mr Biggs submission that, in respect of the three ‘section 10’ appellants in Ahsan, a hypothetical judicial finding that those appellants in Ahsan had not cheated would mean that their s.10 decisions were unlawful, even if the s.10 decisions could not be quashed within the context of a human rights appeal before the First-tier Tribunal (IAC). There was however no suggestion in Ahsan that a hypothetical Judge would not be entitled to place appropriate weight on their finding that the appellant did not cheat and conclude, given the materiality of this finding to the human rights claim, that there would be a breach of article 8 ECHR if the appellant were removed. The obligation on the SSHD to deal with the appellants so far as possible if the error had not been made, referred to at [120] of Ahsan, is not, in my judgement, dependent on the existence of any unlawfulness in respect of the SSHD’s decisions.

89. I note that NA’s particular appeal in Ahsan was not a ‘s.10’ case as he made a human rights claim that was refused and certified as clearly unfounded under s.94 of the 2002 Act. NA challenged the lawfulness of the certification. In holding that the certification was unlawful and that the human rights claim was arguable there was again no indication that the article 8 ECHR claim relating to NA’s private life, where the question of whether he cheated was material, required any unlawfulness by the SSHD ([153] to [157]). I do not consider that Khan supports Mr Biggs’ submission that the judicial review decisions relating to those appellants would have been binding so as to have prevented them from making further human rights submissions based on historical injustice if the proposed alternative procedure had not been agreed.

90. I have considered both Patel and Ahmed. In its consideration of Ahsan the panel in Patel did not refer to unlawfulness being a requisite condition for the establishment of an historical injustice (see [46] and [47]). Reference was made to factual mistakes made by the SSHD as being a relevant factor in the article 8 ECHR proportionality balancing exercise. I additionally note that headnote 3 refers to the ‘wrongful’ operation by the Secretary of State of her immigration functions, not the ‘unlawful’ operation.

91. I have considered paragraph 33(a), and paragraphs 34 to 38 and paragraph 50 of Ahmed. I am not convinced that the use of the term “wrongful operation” supports the understanding Mr Biggs imbues it with. The panel did not use the term ‘unlawful operation’, but ‘wrongful operation’. One might expect the former if, as Mr Biggs submits, there must be a public law error. The word ‘wrongful’ could reasonably include a decision that is lawful but wrong. Whilst I appreciate that, at [50(a)] the panel commented that an action or omission by the SSHD falling short of a public law error was unlikely to constitute wrongful operation by the respondent of her immigration functions, this is not in my judgement part of the ratio of the decision and, in any event, the panel noted that the possibility could not be ruled out.

92. Mr Biggs relies on Moussaoui at [27] to support his submission that an historical injustice argument must be based on some prior illegality. I note that Moussaoui did not distinguish between historic and historical injustice (see Patel for the distinction), and that it was not concerned with whether a wrongful operation of immigration law could constitute a materially relevant factor in an article 8 ECHR proportionality assessment (it was decided before the judgment in Ahsan).

93. Mr Biggs also relied on Rahaman. In the context of an application for further leave to remain under the Points Based System, Mr Rahaman failed to provide the required documents within the time prescribed by the relevant immigration rules. He later provided documents supportive of his application, but the applicable provisions of the 2002 Act did not allow the First-tier Tribunal (IAC) to consider those later documents. There was no wrongful application of the SSHD’s immigration functions when the initial decision was made to refuse Mr Rahman’s application for further leave to remain as he did not, on any possible view, meet the relevant requirements (the issue was a binary one – either Mr Rahman had provided the relevant documents in time or he had not) (see [22] to [25]). There was consequently no wrongful decision that was capable of amounting to an historical injustice. The situation is different with the instant case as a hypothetical Judge could in principle reach a different conclusion on whether the applicant cheated having evaluated all the material evidence. I am reinforced in my conclusion as the Court of Appeal referred (at [20]) to the courts and the Upper Tribunal as having recognised ‘historic injustice’ cases as those involving a belated recognition that a particular class of persons have been wrongly treated and referred to the summary in Patel. Patel itself gave as an example those who had been accused of cheating in TOEIC tests, which would logically include the applicant.

94. Even if the above analysis above is wrong and an ‘historical injustice’ requires a public law error by the respondent, the question whether the applicant cheated in his TOEIC test is nevertheless potentially capable of constituting a relevant consideration in an article 8 ECHR proportionality assessment by a Judge. If, in a hypothetical appeal in the First-tier Tribunal (IAC), a Judge was to find that the applicant had not cheated, then, as a consequence of the judicial determination, the applicant would have been wrongfully denied Leave To Remain (LTR) to complete his studies and he is likely to have then lost the opportunity of making further in-time applications for LTR. A wrongful decision is potentially capable of having a material impact on the article 8 ECHR private life relationships that the applicant is likely to have established with others through his studies and throughout his time of lawful residence. The fact that the respondent found, in 2016, that the applicant had cheated, is not to the point. Whilst I accept that two different decision makers can rationally reach opposite conclusions, a hypothetical Judge would not be bound by the 2016 decisions (for reasons I have already given in respect of the issue estoppel /res judicata principles) and would need to decide, on the basis of all available evidence (some of which was not available to the respondent when her decisions were made in 2016 such as his witness statement), for themselves, in the context of an article 8 ECHR appeal, whether the applicant cheated.

Is it highly likely that the outcome would not have been substantially different?

95. Section 15(5A) of the Tribunals, Courts and Enforcement Act 2007 states that subsections (2A) and (2B) of section 31 of the Senior Courts Act 1981 apply to the Upper Tribunal when deciding whether to grant relief in a judicial review application as they apply to the High Court. Section 31(2A) and (2B) of the Senior Courts Act 1981 states, in material part, that:

The High Court—

(a)must refuse to grant relief on an application for judicial review, … if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.

The court may disregard the requirements in subsection (2A)(a) … if it considers that it is appropriate to do so for reasons of exceptional public interest.

96. In R (Bradbury) v Brecon Beacons National Park Authority [2025] EWCA Civ 489; [2025] 4 WLR 58 the Court of Appeal considered s.31(2A). At [71] and [74] Lewis LJ stated,

It is not for the court to try and predict what the public authority might have done if it had not made the error. If the court cannot tell how the decision-maker would have approached matters, or what decision it would have reached, if it had not made the error in question, the requirements of section 31(2A) are unlikely to be satisfied.

The section emphatically does not require the court to embark upon an exercise where the error is left out of account and the court tries to predict what the public body would have done if the error had not been made. Approaching section 31(2A) in that way would run the risk of the court forming a view on the merits and deciding if it thinks the public body would reach that view if it had not made the error. Rather, the focus should be on the impact of the error on the decision-making process that the decision-maker undertook to ascertain whether it is highly likely that the decision that the public body took would not have been substantially different if the error had not occurred.

97. I must determine whether, despite the unlawful elements of the decision I have identified above, it appears to me to be highly likely that the respondent would nevertheless have reached the same conclusion i.e. that the respondent would conclude that the evidence presented by the applicant was incapable of creating a realistic prospect of success in a hypothetical article 8 ECHR human rights appeal.

98. Mr Singh KC did not suggest, absent a finding that the applicant had not cheated, that there was a realistic prospect of success in a human rights appeal. Although the applicant has been present in the UK for over 12 years at the date of the challenged decision, he has not produced any significant evidence of the nature and extent of his private life in the UK. The applicant relies on the possibility of a hypothetical future finding by a Judge that he did not cheat as the basis for advancing his private life claim. The applicant is essentially claiming that a Judge would be entitled to allow a human rights appeal having regard to the length of the applicant’s 12 year residence (only 3 years of which was lawful), the fact that, but for the curtailment of his leave, he would, in all probability have been granted a further period of leave (as stated at [6] above the applicant was awarded full points for his CAS and his ability to maintain himself), and that he has lost the opportunity of further establishing and entrenching his private life in the UK through the respondent’s wrongful decision.

99. In determining how the respondent would have approached the applicant’s further representations had the identified unlawful elements not occurred, I take into account several factors.

100. The respondent would take into account the fact that the voice recording of the TOEIC test provided to the applicant by ETS was not the applicant’s voice, and the knowledge that of the tests taken on 15 May 2013 at Queensway College 92% (23 out of 25) of the speaking and writing tests were deemed invalid (the remaining two were deemed ‘questionable’). The respondent would note that there was no evidence before her when the challenged decision was made in respect of the ‘issues’ the applicant claimed he was having with his ‘online banking’ (see [12] of his 2024 statement) that meant that he paid cash for his test. The respondent would take into account the absence of any receipt in respect of that payment. The respondent would consider the applicant’s failure to advance his claim not to have cheated as a ground of appeal requiring determination in either of his two previous appeals to the First-tier Tribunal (IAC). Mr Singh submitted that any explanation for this failure could be provided by the applicant in a notional appeal, but I must determine the paragraph 353 decision on the basis of the evidence before the respondent when her challenged decision was made. It was open to the applicant to have provided an explanation for this in his 2024 statement, but he failed to do so.

101. The respondent would additionally consider the applicant’s delay in making a complaint to ETS that they have to disclose his voice records. Mr Singh KC submitted that the applicant could provide an explanation for this at an appeal hearing but the assessment of whether there is a ‘realistic’ prospect of success in a challenge to a decision taken under paragraph 353 must be based on the evidence that is provided to the respondent. It was open to the applicant to have provided an explanation for this substantial delay in his statement of 2024, but he did not do so. The respondent would also take into account that the applicant has been found by two Judges to have fabricated protection claims. Whilst a hypothetical Judge would no doubt give themselves a ‘Lucas’ direction, the fact that the applicant has been found to have lied in respect of his protection claims is a relevant factor that a hypothetical Judge would take into account ‘in the round’.

102. In determining how the decision-make would have approached the applicant’s further representations I note that in any hypothetical appeal the applicant would be relying on educational achievements both before and after he took the TOEIC speaking test in March 2013. A Judge would consider the full history of the applicant’s education evidence including the fact that he achieved an overall band 5 in speaking in an IELTS test undertaken in 2012, that he then achieved a perfect score of 200 in the TOEIC speaking test, but that in the IELTS test he took at his University some 14 months later his speaking test score was an overall band of 5.

103. Some aspects of the applicant’s new statement, such as his description of his journey to Queensway College, are essentially neutral factors when determining how the respondent would approach the further representations. The respondent has explained that a person’s presence at the college on the day of the speaking test does not mean that a proxy-test taker was not used.

104. On the other hand, when determining whether there was a realistic prospect of success in a hypothetical human rights appeal the respondent would need to consider that the applicant entered the UK to study a Preparatory Diploma at NQF Level 3, and that he was undertaking a Bachelor of Arts degree in Business Management and that no issue appears to have been taken by his educational institution with his proficiency in English in respect of his ability to undertake his course. Although the respondent did not accept the applicant’s explanation for taking the TOEIC test when he did, it may reasonably be open to a Judge on a hypothetical appeal to accept the applicant’s explanation at paragraphs 9 and 10 of his 2024 statement, something the respondent failed to consider. Moreover, the TOEIC judicial decisions and authorities all indicate the potential importance of oral evidence and how a person responds to cross-examination.

105. There was additionally some evidence in Varkey & Joseph to the use of hidden rooms at Queensway College (see [68], [74], [99], [100] and [107]). Some of this evidence suggested that the operation was relatively sophisticated although this was less clear (see [74] and [99]). Although the Tribunal accepted that if a test centre used a ‘hidden room’ it was more likely that the administrative staff would use the easier option of replacing all the candidates results with those of Proxy testers [104]). At [107] of Varkey & Joseph the UT stated:

Mr Stanbury's evidence that the test centre would only upload the tests completed by the proxies taking the test in a hidden room without a genuine candidate being aware, so that all the candidates would pass the test regardless of whether they were paying extra or not, is again, nothing more than speculation. In fact, it is contrary to the evidence. Mr Stanbury relies upon the email sent by Riaz Ashfaq to Richard Shury on 16 July 2013, regarding Queensway College that supports his claim that 'hidden rooms' are used. However in that email, Mr Ashfaq states that he had taken his nephew to do the test but his nephew was not allowed to take his own test. He provided the names of those responsible for maintaining the system and marketing, and again confirmed that "They do not allow anyone to take exam on their own". What this evidence demonstrates is that where the use of a hidden room is operated, whatever sophisticated method is devised to avoid detection, the candidate is likely to be aware that they will be unable to complete a genuine test, and a candidate who proceeds to take a test at such a test centre is likely, as a starting point, to be as complicit as if there were simple 'direct substitution'. It is evidence of the operation of a 'fraud factory', where the test centre has no interest in allowing genuine candidates to sit the test themselves.

106. I have considered with care the evidence that was presented to the respondent as further representations in June 2024, and I remind myself again that it is not for this Tribunal to try and predict what the respondent might have done if she had not acted unlawfully. I have found my assessment to be finely balanced. Whilst I consider it likely that the outcome for the applicant would not have been substantially different if the respondent had not acted unlawfully in her assessment under paragraph 353, balancing the various factors above, and in particular the factors at [104] above, I cannot say that it is highly likely that the outcome would not have been substantially different.

Conclusion

107. For the reasons given above, the application for judicial review is allowed.

~~~~0~~~~