High Court strips fraud insinuations from Home Office defences in Hossain v Home Office

The High Court has ruled on the extent to which the Home Office may amend its defences in long-running litigation over the cancellation of English language test certificates, striking out numerous passages found to breach either issue estoppel or the long-standing rule against relying on findings made in other proceedings.

In Mosaraf Hossain & Ors v The Home Office [2026] EWHC 1989 (KB), Mrs Justice Heather Williams gave a detailed supplementary ruling following her earlier judgement of 10 June 2026, in which she had held that issue estoppel prevented the Home Office from alleging that two of three claimants had obtained their TOEIC English language test results by fraud, while a third claimant had failed to show that a similar allegation against him would be an abuse of process.

The claims form part of a wider group of cases arising from the Home Office's use of Educational Testing Service data to identify candidates said to have used proxy test takers to pass the Test of English for International Communication, relied upon in support of student visa applications. Following the earlier judgement, the Home Office sought permission to amend its defences in each of the three claims, and the claimants objected to numerous passages on the basis that they either directly or indirectly reasserted the precluded fraud allegations, or improperly relied on factual findings made by the Upper Tribunal in earlier Presidential Panel cases, contrary to the rule in Hollington v Hewthorn [1943] KB 587.

Working through each disputed paragraph in turn, the judge drew a consistent distinction between passages permissibly describing the evidence available to the Home Office at the time of its decisions, which she allowed, and passages that went further by relying on the Upper Tribunal's own factual conclusions, in cases such as DK and RK and Varkey, as evidence of the truth of those conclusions, which she disallowed. She reiterated that although the rule in Hollington v Hewthorn barred reliance on the tribunal's findings as established fact, it did not prevent the Home Office from relying on the underlying evidence, such as expert concessions, that had been before the tribunal when those findings were made.

Applying that distinction, the judge struck out or required rewording of numerous passages that asserted, in substance, that test certificates had in fact been obtained through proxy test takers, holding that such wording amounted to a fraud allegation precluded by issue estoppel regardless of how it was dressed up procedurally. She was similarly critical of passages asserting that claimants were aware of, or complicit in, wider fraud at the test centres they attended, finding these could only be understood as insinuations that the claimants themselves had participated in deception.

By contrast, she permitted passages that neutrally described what evidence had been available to the Home Office at the relevant time, including references to certificates having been submitted following tests "claimed" to have been taken, and passages describing the state of the generic evidence and tribunal jurisprudence without asserting the truth of that evidence's contents as established fact.

Rather than making a piecemeal ruling allowing some paragraphs and refusing others, the judge directed the Home Office to file revised draft amended defences reflecting her rulings, with the claimants given a further opportunity to raise limited objections confined to the issues she had already addressed. She expressed surprise that the parties had been unable to agree the amendments without extensive judicial intervention and reserved the question of costs pending the outcome of that further process.