On 15 October 2026 the Court of Appeal handed down judgment on the Home Secretary's appeal over a refusal of indefinite leave to remain to a man wrongly held to have cheated in an English language test.
Secretary of State for the Home Department v Hossain [2026] EWCA Civ 1310 was decided in the Court of Appeal (Civil Division) on 15 October 2026. The appeal was heard on 16 July 2026 before Lord Justice Newey, Lord Justice Singh and Lord Justice Baker. Lord Justice Baker gave the judgment. It is an appeal from the Upper Tribunal (Immigration and Asylum Chamber).
The Secretary of State appealed against the Upper Tribunal's decision in judicial review proceedings to quash a refusal of indefinite leave to remain (ILR). The judgment says the primary issue is whether the Upper Tribunal judge correctly followed the approach this Court set out in Ahsan and others v SSHD [2017] EWCA Civ 2009 and Khan and others v SSHD [2018] EWCA Civ 1684. Those cases concern people wrongly held by the Home Office to have cheated in the Test of English for International Communication (TOEIC).
Background in the judgment
- Mr Hossain, a Bangladeshi national, entered the UK on 18 October 2009 with entry clearance as a Tier 4 General Student.
- On 7 May 2014 his application for further leave was refused solely because the Secretary of State concluded he had used deception to obtain an English language certificate.
- On 29 March 2023 the First-tier Tribunal allowed his appeal against the refusal of a human rights claim. It found he had not used deception in the test.
- On 28 November 2023 he was granted limited leave to remain for 30 months, until 27 May 2026.
- He applied for ILR on 13 December 2023. It was refused on 29 December 2023. One reason given was that he had not completed 10 years of continuous lawful residence under paragraph 276B(i)(a) of the Immigration Rules.
- On 17 October 2025 the Upper Tribunal allowed his judicial review and quashed that decision. Lord Justice Holgate granted permission to appeal on 3 March 2026.
The judgment records that 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 until that application is decided.
The judgment also sets out paragraphs 276A and 276B of the Immigration Rules as in force at the relevant time, and the Supreme Court's decision in R (Afzal) & another v SSHD [2023] UKSC 46 on bookended periods of overstaying. This item covers the issue and background. The Court's conclusion on the appeal is in the full judgment.
Sources
- [The Secretary of State for the Home Department v MD Shahadat Hossain [2026] EWCA Civ 1310](https://caselaw.nationalarchives.gov.uk/ewca/civ/2026/1310), National Archives, 15 October 2026