Cleared of TOEIC Cheating but No Automatic ILR: SSHD v Hossain [2026] EWCA Civ 1310

Introduction

The Court of Appeal allowed the Home Secretary’s appeal against an Upper Tribunal decision which had quashed the refusal of Mr Md Shahadat Hossain’s ILR application and directed that he be treated as satisfying the continuous lawful residence requirement in paragraph 276B(i)(a) of the Immigration Rules, absent new information. Baker LJ delivered the reasoned judgment, with Singh LJ and Newey LJ agreeing.

The judgment does not deny the seriousness of a false TOEIC allegation. Its central point is that corrective action following a wrongful immigration decision is fact-sensitive: the historical injustice is relevant, but so too may be the individual’s conduct after that decision.

The legal background: Ahsan and Khan

In 2014, concerns about fraudulent TOEIC English-language test results led to numerous immigration decisions alleging deception. Two earlier Court of Appeal authorities are important to understanding the remedy where the allegation is subsequently disproved.

• Ahsan v SSHD [2017] EWCA Civ 2009: the Court addressed the inadequacy, in the circumstances of the cases, of an out-of-country appeal as a means of testing allegations of deception. Underhill LJ indicated that, other things being equal, a person cleared of deception should so far as possible be restored to the position they would have occupied without the wrongful decision. The qualification “other things being equal” matters.
• Khan v SSHD [2018] EWCA Civ 1684: the Court recorded the Secretary of State’s qualified statements concerning the treatment of wrongly caused gaps in leave. Those statements were expressly sensitive to the individual facts and did not bind the Secretary of State as to the outcome of all later applications.

Mr Hossain’s immigration history

Mr Hossain, a Bangladeshi national, entered the United Kingdom in October 2009 as a Tier 4 student. His application for further leave, made before his existing leave expired, was refused in May 2014 solely because the Home Office believed he had used deception in obtaining a TOEIC certificate. A First-tier Tribunal ultimately found in March 2023 that he had not cheated.

• 18 October 2009: Entered the UK as a Tier 4 student; leave later extended to 31 July 2014
• 3 February 2014: Made an in-time application for further leave
• 7 May 2014: Application refused on TOEIC deception grounds; served with removal notice and detained
• 9 June 2014: Challenged the removal decision by judicial review; permission refused and certified totally without merit
• 18 July 2014: Released from immigration detention
• 8 December 2015: Failed to comply with immigration bail reporting requirements
• 27 July 2018: Claimed asylum; claim subsequently withdrawn in 2022
• 13 January 2021: Applied on human rights grounds; refusal later appealed
• 29 March 2023: First-tier Tribunal allowed his appeal, finding no deception
• 28 November 2023: Granted 30 months’ limited leave, expiring 27 May 2026
• 13 December 2023: Applied for ILR relying on ten years’ long residence
• 29 December 2023: ILR application refused
• 17 October 2025: Upper Tribunal quashed the ILR refusal
• 15 October 2026: Court of Appeal allowed the Home Secretary’s appeal

The refusal of ILR treated the period between 2014 and 2023 as time without lawful leave, leaving approximately five years of lawful residence. The Secretary of State also considered Mr Hossain’s absconding, the period before he sought to regularise his position and the fact that his earlier student route did not itself lead to settlement.

What the Upper Tribunal decided

In R (Md Shahadat Hossain) v SSHD, JR-2024-LON-000328, Upper Tribunal Judge Neville concluded that the ILR refusal was unlawful. He considered that, had the 2014 application been correctly decided, Mr Hossain would have accrued sufficient continuous lawful residence. The judge regarded the principles in Ahsan and the statements recorded in Khan as requiring the Home Office to treat him as meeting paragraph 276B(i)(a), absent new information. He also considered that the later absconding did not rationally justify a different treatment of the continuous residence requirement.

The Court of Appeal disagreed. It held that the Upper Tribunal had misunderstood the scope of the earlier authorities and impermissibly constrained the discretion vested in the Secretary of State (paragraphs 49–58).

The Court of Appeal’s reasoning

1. Ahsan does not establish an automatic right to ILR

Baker LJ held that Ahsan did not prescribe an inflexible outcome for all subsequent TOEIC cases. The expression “other things being equal” was a deliberate qualification. Whether, and how far, to remedy a wrongful decision depends on the particular circumstances (paragraphs 49–50).

2. Khan did not bind the Home Secretary in every future case

The qualified concessions recorded in Khan were not a promise that every person later cleared of deception would receive credit for all intervening years as lawful residence. The Court endorsed the approach in R (Malhi) v SSHD (15 May 2026, unreported), rejecting the suggestion that all events after the wrongful decision must be ignored (paragraphs 51–53).

3. Disregarding a gap is different from counting it as lawful residence

A critical distinction is between not holding a gap in leave against an applicant and positively crediting the same period as continuous lawful residence for ILR. Paragraph 276B required ten years’ continuous lawful residence. As the judgment explains by reference to Afzal, a period of overstaying may in certain circumstances be disregarded for continuity without counting towards the qualifying ten years (paragraph 17).

The Court of Appeal did not treat a subsequent finding of no TOEIC deception as automatically converting the entire intervening period into lawful residence. The Secretary of State’s consideration of a remedy remains subject to the individual facts and public law principles.

4. Absconding and subsequent delay were relevant

Mr Hossain’s “absconding” meant failure to comply with immigration bail reporting conditions. Baker LJ held that he was required to observe those conditions even if the underlying immigration decision was later shown to be wrong, drawing on the rule-of-law reasoning in R (Majera) v SSHD [2021] UKSC 46 (paragraph 54).

The Home Secretary could also consider the delay in seeking to regularise his position. Mr Hossain claimed asylum in 2018 and applied for leave outside the Rules in 2021. The Court held that the weight attributed to his absconding and delay was a matter for the Secretary of State on these facts (paragraphs 54–55). This does not mean that every breach or delay must produce the same outcome.

5. The original injustice still had to be considered

The Court acknowledged the historical injustice caused by the wrongful TOEIC accusation. Applying the principles considered in AA (Afghanistan) v SSHD [2007] EWCA Civ 12 and SL (Vietnam) v SSHD [2010] EWCA Civ 225, it held that the Secretary of State had properly considered that injustice alongside other relevant circumstances (paragraph 56).

The grant of 30 months’ limited leave rather than ILR was therefore a rational exercise of discretion on the facts. The Court allowed the Home Secretary’s appeal, set aside the Upper Tribunal’s quashing order and dismissed Mr Hossain’s judicial review claim (paragraphs 57–58).

What happens to Mr Hossain now?

The Court expressly confirmed that its judgment did not affect Mr Hossain’s pending application for further leave or his continuing leave under section 3C of the Immigration Act 1971. Baker LJ expected the Secretary of State to consider his earlier lawful residence as a student and his leave since 2023, but emphasised that the decision on his current application was for the Secretary of State (paragraph 59).

Section 3C protection depends on the statutory requirements being met, including an application made before existing leave expires. Applicants should not assume that an application or a challenge automatically preserves their status.

What this means for people affected by TOEIC allegations

Hossain clarifies, rather than extinguishes, the possibility of obtaining a remedy for wrongful TOEIC allegations. The Home Office must assess the original injustice fairly, but a finding of no deception does not alone establish ten years’ continuous lawful residence or an entitlement to ILR.

1. Seek an individual assessment. Set out the original TOEIC injustice, its practical consequences and why the requested exercise of discretion is justified, supported by evidence.
2. Explain intervening conduct. Address missed reporting appointments, periods out of contact, delays and attempts to regularise status candidly, with dates and supporting documents. Their relevance is established; the proper weight depends on the circumstances.
3. Check the settlement route. Where limited leave has been granted, identify the legal basis of the grant, whether the route can lead to settlement and the qualifying period. Do not assume that every grant of limited leave leads to ILR.
4. Protect lawful status. Consider making any appropriate further application before existing leave expires, and take advice on whether section 3C applies.
5. Apply the correct Immigration Rules. Paragraph 276B governed Mr Hossain’s 2023 ILR application. Current long-residence applications are considered under Appendix Long Residence, subject to the relevant transitional provisions and the Rules in force at the application date.
6. Consider public law remedies carefully. Judicial review may still be appropriate where there is a material error of fact, failure to consider the historic injustice or other relevant evidence, procedural unfairness, irrationality or another identifiable public law error. Disagreement with the discretionary outcome alone is not enough.

A different Hossain judgment: civil claims and issue estoppel

Hossain & Ors v Home Office [2026] EWHC 1413 (KB) is a separate High Court decision concerning civil proceedings and issue estoppel. The High Court held that the Home Office could not re-litigate TOEIC fraud allegations against two claimants whose earlier tribunal appeals had determined the issue in their favour. A different outcome applied where the earlier appeal had not been determined. That decision should not be confused with the Court of Appeal’s ruling on ILR and the exercise of immigration discretion.

Conclusion

For people wrongly accused of TOEIC deception, vindication remains significant, but it is not necessarily the end of the immigration analysis. The central lesson of Hossain is that a remedy for historical injustice must be considered in the round: the original wrongful allegation, the consequences suffered, the person’s later conduct and the applicable Immigration Rules all matter. The judgment requires careful, evidence-based representations rather than an assumption that lost years will automatically be credited towards settlement.

How Morgan Hill Solicitors can help

If you have been accused of TOEIC deception and are uncertain about your immigration status or settlement options, our immigration team can review your history and advise on the appropriate next steps, including applications for leave, long residence, human rights representations and judicial review where appropriate.

Morgan Hill Solicitors | 604 Green Lane, Goodmayes, Ilford, Essex IG3 9SQ | 0203 5000 699 | info@MorganHillSolicitors.com

This article provides general information only and is not legal advice. The law and the outcome of any case depend on the individual facts and the Immigration Rules in force at the relevant time.

Author: Rao Manzoor-ul-Haque Khan, LL.M. (Glasgow), Principal Solicitor & Managing Director, Morgan Hill Solicitors. Solicitor of England & Wales; Advocate, High Court (Pakistan); Member of Lincoln’s Inn.

Authorities and further reading

• Secretary of State for the Home Department v Hossain [2026] EWCA Civ 1310 (15 October 2026), BAILII
• R (Md Shahadat Hossain) v Secretary of State for the Home Department, JR-2024-LON-000328 (Upper Tribunal, 17 October 2025), GOV.UK
• Ahsan v Secretary of State for the Home Department [2017] EWCA Civ 2009
• Khan v Secretary of State for the Home Department [2018] EWCA Civ 1684
• R (Malhi) v Secretary of State for the Home Department (Upper Tribunal, 15 May 2026, unreported), discussed in Hossain at [52]
• R (Majera) v Secretary of State for the Home Department [2021] UKSC 46
• AA (Afghanistan) v Secretary of State for the Home Department [2007] EWCA Civ 12; SL (Vietnam) v Secretary of State for the Home Department [2010] EWCA Civ 225
• Hossain & Ors v Home Office [2026] EWHC 1413 (KB) (case note: Garden Court Chambers)