The Court of Appeal has ruled on the Home Secretary's appeal over an indefinite leave to remain refusal for a man whose English test cheating finding was later overturned, affecting people caught up in the TOEIC allegations.
Key facts
- Who: People wrongly held to have cheated in the TOEIC English language test who later apply for leave to remain
- From: 15 October 2026 (date of judgment)
- Source: The Secretary of State for the Home Department v MD Shahadat Hossain [2026] EWCA Civ 1310
In The Secretary of State for the Home Department v MD Shahadat Hossain [2026] EWCA Civ 1310, the Court of Appeal (Civil Division) gave judgment on 15 October 2026 after a hearing on 16 July 2026. Lord Justice Baker gave the judgment, sitting with Lord Justice Newey and Lord Justice Singh.
Background
Mr Hossain, a Bangladeshi national, entered the UK in October 2009 as a Tier 4 General Student. In May 2014 his application for further leave was refused. The sole reason was the Secretary of State's conclusion that he had obtained an English language certificate by deception. He was served with a notice that he was liable to removal and was detained until July 2014. His 2014 judicial review challenge was refused permission.
In December 2015 he failed to comply with reporting requirements on immigration bail. He claimed asylum in 2018 and withdrew that claim in 2022. In March 2023 the First-tier Tribunal allowed his appeal against the refusal of his human rights claim and found that he had not used deception in the English test. In November 2023 he was granted limited leave to remain for 30 months.
He applied for indefinite leave to remain (ILR) in December 2023. The refusal of 29 December 2023 said that, as a student, he had not been on a route to settlement, so it could not be assumed he would have received settlement without the allegations. It also said he had not completed the 10 years' lawful residence required by paragraph 276B of the Immigration Rules.
The question
The Upper Tribunal quashed that refusal on 17 October 2025. Permission to appeal to the Court of Appeal was granted in March 2026. The main issue was whether the Upper Tribunal judge correctly followed the approach set out in the Court's earlier TOEIC decisions, Ahsan [2017] EWCA Civ 2009 and Khan [2018] EWCA Civ 1684.
The TOEIC background
The TOEIC litigation followed the 2014 revelation of widespread cheating, particularly through proxy test-takers. At the Home Office's request, the test provider ETS used voice recognition software to review recordings. In 2014 and 2015 the Secretary of State made decisions in over 40,000 cases in reliance on ETS's findings.
In Ahsan, Underhill LJ said that cheating took place on a huge scale but that not everyone who took the test was guilty of it. He recorded the Secretary of State's case that the proportion of wrong or unfair decisions was very small.
In tentative guidance on human rights appeals, he said that if someone were found not to have cheated, the Secretary of State would be obliged to deal with them afterwards, so far as possible, as if the error had not been made. He added that this could include exercising discretion outside the Immigration Rules as though the person had held leave in the relevant period.
Mr Hossain applied for further leave before his leave expired on 27 May 2026. His leave is therefore extended by section 3C of the Immigration Act 1971 while that application is decided.
What this means for people affected by TOEIC allegations
The judgment concerns the approach the courts take where someone wrongly held to have cheated in the TOEIC test later applies for leave to remain. That approach comes from Ahsan and Khan. Anyone affected should read the full judgment, and a legal adviser can explain how it relates to their own circumstances.
Sources
- The Secretary of State for the Home Department v MD Shahadat Hossain [2026] EWCA Civ 1310, Court of Appeal (Civil Division), 15 October 2026: https://caselaw.nationalarchives.gov.uk/ewca/civ/2026/1310