As a direct access immigration barrister who has been specialising in TOEIC appeals and to a lesser extent Judicial Reviews, I thought I would post my thoughts as to what makes a winning case.
Firstly, with regards to judicial reviews, these have to be handled carefully, while at first blush, it appears that following the Home Office effectively conceding the appeal in Ahsan v Secretary of State for the Home Department  EWCA Civ 2009, that applications for JR are going to win without much trouble. However, this is a dangerous tactic to approach as the case of Ahsan while saying that the IS151As were illegal, the Court of Appeal heavily points towards individuals pursuing a statutory appeal, or that they can make a human rights claim and therefore have an alternative remedy. I have had a number of cases where the Judges agree that the underlying decision was wrong but that they should make human rights claims or if they have already made one should have an in country right of appeal. This of course is food for the Home Office in any JR and can lead to clients spending money on a JR when they could be preparing for a human rights claim.
For those who have been effected, given that the certification / IS151as have been ruled effectively illegal, pursuing a claim or creating a claim in the First Tier Tribunal is the way to go in my view.
I have had a number of clients who I have made applications for and have represented numerous clients with a fair degree of success, however there are key factors that often lead to the difference between an appeal which succeeds and one that fails hopelessly.
My advice for anyone who has a Toeic allegation is to either approach a reputable lawyer or alternatively contact me, because as a direct access immigration barrister I can represent the clients throughout.
There is a clear benefit in my view of having one pair of hands handle everything from start to finish. I have heard horror stories where the client has met the barrister on the day of the hearing and with a small and inadequate bundle.
In my view the best way forward is either contacting someone reputable with contacts to experienced Counsel, or to approach Counsel directly.
A recent example will highlight how I delivered a successful appeal, one that was allowed on the day at the hearing, indeed I have had more than a few where the Judge has made it plain that the client is going to win.
The starting point with this type of case is preparation as it is with all cases. The first thing I organise is a face to face conference with the client, we have a chance to meet and the client will have the opportunity of meeting the person who will, ultimately or potentially ultimately decide whether they have the right to remain in the United Kingdom.
I was privileged to be chosen to represent the client. The next step was information gathering. This is vital. The impugned tests are often historic, going back to 2012 and have led to much heartache.
The next is to identify what the level of English was before the hearing, in this particular case the Appellant had qualifications from India, some even went back to school, he had also passed a degree in English and had obtained an IELTS with a score of 7 even before landing at Heathrow in 2009 – he then passed a degree in English and was half way through his Masters degree.
I then arranged for UK Naric to verify the quality of the documents before coming to the UK, surprisingly UK Naric were able to verify the school certificates (equivalent to GCSEs and A Levels).
Then I took information as to the reason why he took the test and where. One of the key attack points for the Home Office is where the individual took the Toeic test along from home. Evidence was required to show why, it was timing in his case.
Also it is important, since the Immigration Act of 2014 and that appeals can only be allowed under article 8 to gather all the information about the family, such as whether there are any children or health issues and obtain up to date evidence.
After I obtained his further qualifications, these carry less weight as the person may well, as the Tribunal have commented used the delay to improve their English.
By showing that the Appellant could speak English before he came here and obtained a degree taught in UK in English and was half way through his Masters degree, it made it easier to rebut the Home Office evidence produced, as usual on the day of the hearing.
The other common question is to say that even if someone could speak English – perhaps they were scared to take an exam, so I produced evidence that he had taken various exams to obtain his qualifications.
A further point produced is an “Operation Facade” report on the particular college, this states that the college is under police investigation. However, it is vital to see what the date of the report was – normally they are limited to May 2015. I raised this as a preliminary issue and asked for progress on the investigation. Every time I have said this or asked the HO have not been able to produce any evidence, following which I ask the Judge to have regard to the absence of any further up to date evidence and that if an Appellant sought to rely on 4 year evidence they would likely find little or no weight was to be put on the documents.
Next I questioned the client, thus taking control to some degree of the questioning and put it to him if he had cheated. After clarifying this and going through his previous qualifications and then referring to the current position and highlighting the flaws in the Home Office’s more than often generic evidence.
The Appellant gave evidence, there was, due to my questions, limited cross examination and called family members / evidence current status and importantly how they had suffered since the allegation.
The HO often, if the client has had the case prepared properly, little to fear from the HO submissions which left it to me to wrap up with a closing speech which highlighted the absence of a need to cheat, explanation as to the college, familiarity with taking exams and then going onto stress that the Appellant has been in a limbo for years and been denied the right to establish himself or finish his education. I also placed great weight on the suffering of his family.
The Judge stopped me halfway through my submissions and indicated that the appeal would be allowed.
This was a great result, but one that can be replicated, if and I think only if the case is properly prepared. In this case I had come to know my client over months and was therefore in a position to put his case forward on his personal strengths.
In my view, Toeic appeals ought to be won and won regularly. I have a number of ongoing appeals and replicate exactly the above procedure, I often have a conference once all the paperwork and bundle has been sent, the client is involved throughout and is given a bundle well before the hearing so that they can properly familiarise themselves with the case.
If you, either as a solicitor, or alternatively you are facing a human rights appeal based on Toeic or have a family member so effected please do not hesitate to contact me and I will be happy to arrange a conference where we can discuss the case and plan as a team to win the appeal.
If you wish to book an appointment please feel free to get in touch with me, Paul Turner, Head of Imperium Chambers, 2 Selkirk Road London SW17 0ES or 020 7242 3488 or email email@example.com.
We at Imperium recognise that people have complicated lives and will do our best to see you at a time of your convenience, often I am in the office until 2100 with clients, as I believe that it is vital that all the information is obtained and that the client feels comfortable taking on a life changing event with my help.
Paul Turner is a highly regarded direct access immigration barrister who is authorised to conduct litigation by the BSB and has some 20 years experience, largely in immigration and has appeared in all Courts in England and Wales.