Immigration and judicial reviews
Thousands of TOEIC victims have spent years fighting the allegations of cheating against them in the courts and immigration tribunals.
Initially, many legal challenges were unsuccessful as the courts found that those accused could challenge the allegations from outside of the UK. This out-of-country right to appeal was considered to be an appropriate remedy. At that stage, the courts were, therefore, unable to even consider whether the Home Office had sufficient evidence to support their allegations of cheating.
This approach changed in December 2017, when the Court of Appeal found that in most TOEIC cases, an out-of-country appeal did not give those accused sufficient opportunity to prove their innocence.
As a result, a mechanism for an in-country appeal was established a few months later. This meant that the courts were finally able to review all the evidence, hear directly from those accused here in the UK, and reach a decision on whether an individual had cheated on the test or not.
Where we are now
Following the court decisions in 2017/2018, a significant proportion of those who were accused of cheating have now been found innocent. Their cases have been heard by the First-tier Tribunal (Immigration and Asylum Chamber). The Tribunal has repeatedly found that the Home Office has failed to show that the appellants cheated.
If an appellant can show that they did not cheat on their TOEIC test, their appeal will normally be allowed under Article 8 of the European Convention on Human Rights.
According to a consent order agreed with the Secretary of State for the Home Department in August 2020, successful appellants should be granted 2.5 years leave to remain. In most cases, they should also be treated as having been “continuously lawfully resident” in the UK since the date of their original curtailment. This means that many successful appellants are eligible to apply for Indefinite Leave to Remain in the UK as they have been lawfully resident here for over ten years.
If you had your Leave to Remain curtailed on the basis of a false allegation of cheating on your TOEIC test and need immigration assistance you can contact Bindmans immigration team using the enquiry form here.
Can I get Legal Aid for help and advice from a lawyer?
Legal Aid is government funding to meet the costs of legal advice and representation. In order to obtain Legal Aid, you must be financially eligible.
Legal Aid is not generally available for immigration advice in TOEIC cases, however, it is possible to apply for Exceptional Case Funding, which is a special type of Legal Aid for work that is not generally covered.
You can apply on your own behalf to the Legal Aid Agency for Exceptional Case Funding. If this is granted, you can then approach solicitors who have a legal aid contract to represent you. The following links may help you prepare your application:
Legal Aid may be available for judicial review challenges where there is no right of appeal, as long as you have a good enough chance of success in your case. It is also available for compensation claims in some circumstances.
Please see the FAQs and resources page for information to assist with immigration matters and judicial reviews.