Majumder and Qadir v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Black,Beatson,Sales LJJ |
| Judgment Date | 25 October 2016 |
| Neutral Citation | [2016] EWCA Civ 1167 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 October 2016 |
[2016] EWCA Civ 1167
COURT OF APPEAL
Black, Beatson and Sales LJJ
Mr S Kovats QC instructed by the Government Legal Department, for the Secretary of State;
Mr S Knafler QC and Mr M Biggs instructed by Bindmans LLP, for Mr Majumder;
Mr Z Malik instructed by AWS Solicitors, for Mr Qadir.
MA (ETS – TOEIC testing) Nigeria [2016] UKUT 450 (IAC)
SM and Qadir (ETS – Evidence – Burden of Proof) [2016] UKUT 229 (IAC)
Secretary of State for the Home Department v Pankina and OthersUNK [2010] EWCA Civ 719; [2011] QB 376; [2010] 3 WLR 1526; [2011] 1 All ER 1043; [2010] Imm AR 689; [2010] INLR 529
Secretary of State for the Home Department v Shehzad and ChowdhuryUNK [2016] EWCA Civ 615
Evidence — burden of proof — legal burden on Secretary of State of proving deception — guidance — generic voice recognition software evidence — expert voice recognition evidence — immigration — leave to remain — Test of English for International Communication (“TOEIC”) certificate — deception
The Claimants, Mr Majumder and Mr Qadir, were granted leave to remain in the United Kingdom having submitted a Test of English for International Communication (“TOEIC”) certificate with their applications for leave, as required under the Immigration Rules HC 395 (as amended). The Secretary of State for the Home Department cancelled their leave to remain in 2014 on the ground that they had obtained their TOEIC certificates by using deception. She relied on generic evidence produced by voice recognition software which was said to prove that the TOEIC certificates had been procured by dishonesty.
The First-tier Tribunal dismissed the Claimants' appeals against the Secretary of State's cancellation of their leave. On further appeal before the Upper Tribunal (“UT”), the Secretary of State did not rely on any witnesses with expertise in the science of voice recognition. The evidence adduced on behalf of the Claimants, however, included a report by a voice recognition expert which was accepted in its entirety by the UT and found to weaken heavily the Secretary of State's evidence. The UT held that the Secretary of State had discharged the evidential burden that lay on her to show deception so that there was an evidential burden on the Claimants to raise an innocent explanation. In holding that the Claimants had discharged that evidential burden, the UT found their evidence to be plausible and truthful. The UT allowed the Claimants' appeals, finding that the evidence relied upon by the Secretary of State was insufficient to discharge the legal burden of proof on her of proving the TOEIC certificates were procured by dishonesty. The Secretary of State was granted permission to appeal that decision.
Before the Court of Appeal, the parties agreed that the appeal should be dismissed without a determination of the merits. The instant case was one of a large number of cases that had been brought as a result of a cancellation by the Secretary of State of leave to remain of those, like the Claimants, whom she claimed had used deception in their English language tests. The problem came to light as a result of a television programme in February 2014 which claimed that widespread fraud had been used in tests set and administered remotely via computer by Educational Testing Services (“ETS”) for the purposes of obtaining a TOEIC certificate, in particular by the use of proxies to take the oral tests. The instant case was regarded as a test case for the issues concerning the evidence adduced to discharge the Secretary of State's legal burden as it was the first to reach the Court of Appeal with 315 similar cases stayed pending its outcome. The Court of Appeal considered first, whether the UT had reached perverse findings in relation to the effect of the Secretary of State's generic evidence when taken together with the expert voice recognition evidence adduced on behalf of the Claimants and, secondly, whether the UT had failed to have adequate regard to the quality of the Claimants' English when concluding that neither had cheated.
Held, dismissing the appeals:
(1) The Secretary of State accepted that in the light of all the evidence before the UT it had not erred in concluding that the generic and specific evidence put before it by the Secretary of State did not discharge the legal burden of proof upon her to show dishonesty. The UT was entitled to conclude that Mr Majumder's college documents were a better gauge of his mastery of English than his performance at the hearing because there had been a passage of some three years between the date of the test and the hearing and because the members of the panel were not voice recognition experts but were forming a subjective view. The UT had taken into account the Claimants' English when considering their oral evidence. Those were the sorts of assessments of factual evidence that the UT was entitled to undertake after setting aside the FtT's decision and re-making the decision (paras 23 – 26).
(2) Every ETS/TOEIC case was fact sensitive, with the outcome determined on the basis of the evidence adduced by the parties. In relation to statutory appeals, four categories of cases could be identified. The first was where the Secretary of State was the appellant and had appealed against a finding by the UT that the generic evidence did not satisfy the initial evidential burden that lay on her. The Secretary of State proposed to invite the respondents in such cases to agree to remit them to the UT for consideration of the cases on the basis of the decision of the instant Court in Secretary of State for the Home Department v Shehzad and ChowdhuryUNK[2016] EWCA Civ 615. The second category was where the Secretary of State was the appellant and the UT had correctly decided that she had discharged the initial evidential burden with her generic evidence, but in the light of other evidence had not discharged the legal burden. The Secretary of State would review those cases, without giving an answer in respect of a particular case, with a view to conceding the appeal. Since there were a relatively limited number of such cases and the Secretary of State's position was relatively clear, it should be possible for the second category to be dealt with inside a reasonably short timetable by prioritising cases, although it was acknowledged that separating them from the other categories would take time. The Court would expect to be informed once a decision had been made about any cases in which permission to appeal had been granted or permission was pending that the Secretary of State was minded to concede the appeal. The third category also consisted of appeals by the Secretary of State, but where the appeal was against the decision in which it was held that the generic evidence had not discharged the initial evidential burden and was thus erroneous in that respect, but that other evidence meant that the Secretary of State would not have been able to discharge the legal burden. Without giving an undertaking in respect of any particular case, the Secretary of State was minded to concede and to abandon those appeals. The fourth category consisted of cases in which the migrant was the applicant or appellant. In that category the migrant complained about the treatment by the Tribunal of either the initial evidential burden or the impact on the question of whether the Secretary of State had satisfied the legal burden in the light of the totality of the evidence (paras 27 – 33).
(3) The Secretary of...
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