R Abbas v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr Justice William Davis,Mr Justice William Davis |
| Judgment Date | 27 January 2017 |
| Neutral Citation | [2017] EWHC 78 (Admin) |
| Docket Number | Case No: CO/6605/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 January 2017 |
[2017] EWHC 78 (Admin)
The Hon. Mr Justice William Davis
Case No: CO/6605/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Z Malik (instructed by MLC Solicitors) for the Claimant
Mr C Thomann (instructed by Government Legal Department) for the Defendant
Hearing dates: 18 January 2017
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The Claimant is a citizen of Pakistan. In May 2011 he was granted leave to enter the UK as a Tier 4 General Student. The course in respect of which leave was granted was ESOL (English for speakers of other languages) at the Learning and Skills Academy in Luton. The course apparently ran for a year and concluded at the end of April 2012. Whilst he was undertaking the course he met a woman named Sofia Damji. She was a British citizen. They developed a relationship. In January 2012 they were married in a religious ceremony. On 9 March 2012 a civil ceremony took place at which point the Claimant became the spouse of a British citizen.
The Claimant decided to change his immigration status to that of spouse of a British citizen. Although his leave to remain pursuant to his student visa did not expire until August 2012 he took immediate steps to obtain leave to remain as the spouse of a British citizen. As part of the process he provided a certificate indicating that he had undertaken a TOEIC test (Test of English for International Communication). Although it is not stated on the face of the certificate, it is known that it resulted from a test said to have taken place at an institution called Thames Education Centre. Such leave was granted in May 2012 for a period of two years. In 2014 he applied for indefinite leave to remain on the basis that he had completed a period of two years as the spouse of a British citizen. Indefinite leave to remain was granted on 2 September 2014. Following that in May 2015 the Claimant applied for naturalisation as a British citizen.
On 23 September 2015 the Secretary of State for the Home Department revoked the grant of indefinite leave to remain which had been granted in September 2014. She purported to exercise her power under Section 76(2) of the Nationality Immigration and Asylum Act 2012 i.e. on the ground that the Claimant had used deception to obtain his indefinite leave to remain. The deception alleged was the use of a fraudulently obtained TOEIC certificate when applying in 2012 for leave to remain. At that point the application for naturalisation was outstanding. On 13 October 2015 this application was refused because the Secretary of State considered that the Claimant did not satisfy the requirement of good character. She reached that view on the basis that he had obtained and used a TOEIC certificate fraudulently in 2012.
The Claimant now applies for judicial review of both decisions. His case is that the TOEIC certificate in question was not fraudulent so the Secretary of State was wrong in revoking his indefinite leave to remain and in refusing his application for naturalisation. The Secretary of State maintains that her determination was factually sound. There is an issue as to the interpretation of Section 76(2) of the 2002 Act to which I shall return. However, the principle issue is one of fact.
This is the latest in a long line of cases arising from action taken by the Secretary of State in the wake of a BBC "Panorama" programme broadcast in February 2014. That programme revealed that there had been widespread fraud in the taking of language tests provided by an entity called Educational Testing Services (ETS), a non-profit organisation based in the United States. The fraud principally consisted of the taking of tests by a person other than the person named on the certificate as subsequently issued. Following the programme ETS reviewed all of the tests taken at centres in the UK. The conclusion of the review process was that many thousands of tests had been taken by someone other than the person named on the certificate. ETS provided the results of its review to the Secretary of State. The Claimant's test was one of those identified as fraudulent by ETS. So it was that the Secretary of State made the two decisions now under challenge.
I have been referred to and considered the following authorities:
A v SSHD [2010] EWCA Civ 773
Gazi v SSHD [2015] UKUT 327 (IAC)
Mehmood and Ali v SSHD [2015] EWCA Civ 744
Giri v SSHD [2015] EWCA Civ 784
Ahmed v SSHD [2016] EWCA Civ 303
SSHD v Shezad and Chowdhury [2016] EWCA Civ 615
Majumder and Qadir v SSHD [2016] EWCA Civ 1167 (on appeal from [2016] UKUT 229 (IAC))
It is agreed that the relevant principles to be applied are as follows:
• In respect of Claimant's first challenge to the revocation of indefinite leave to remain, he has no route of appeal to the First Tier Tribunal.
• Because the Claimant's second challenge is to the refusal to grant naturalisation, there can be no judicial review before the Upper Tribunal.
• Whether deception was used by the Claimant in this case is a precedent fact for the court to determine because the very existence of the Secretary of State's power as exercised in this case depended on deception having been used.
• The legal burden of proving that the Claimant used deception lies on the Secretary of State albeit that there is a three stage process. The Secretary of State first must adduce sufficient evidence to raise the issue of fraud. The Claimant has then a burden of raising an innocent explanation which satisfies the minimum level of plausibility. If that burden is discharged, the Secretary of State must establish on a balance of probabilities that this innocent explanation is to be rejected.
• There is one civil standard of proof (which is the standard to be applied). The seriousness of the consequences does not require a different standard of proof but flexibility in its application will involve consideration of the strength and quality of the evidence. The more serious the consequence, the stronger must be the evidence adduced for the necessary standard to be reached.
It follows that I must make the relevant findings of fact in relation to the genuineness or otherwise of the 2012 TOEIC certificate and the dishonesty (if any) of the Claimant. This is not a task for which this Court generally is suited. Before the changes made to the statutory appeal rights by the Immigration Act 2014, a dispute as to the status of a TOEIC certificate generally fell to be resolved in the context of a statutory appeal to the First Tier Tribunal, a body more suited such a fact finding exercise. However, evidence was called before me and I am satisfied that I was able properly to address the issues in the case. It seems unlikely that the combination of circumstances which existed here and which has led to this Court being the only forum in which the fact finding exercise could take place will occur other than very infrequently. Mr Zane Malik appearing for the Claimant, whose exposure to litigation of this kind is very substantial, told me that the position in this case was unique in his experience. Thus, it is not necessary for me to consider whether for future reference there might be some route by which to avoid a fact finding exercise of this kind in this Court when circumstances such as the Claimant's arise.
The Secretary of State adduced evidence from Peter Millington, Rebecca Collings and Adam Sewell, all civil servants within her department. She also adduced evidence from Professor Peter French, the pre-eminent expert in the UK on speaker identification. Mr Sewell gave oral evidence and was cross-examined. The Claimant gave evidence and was cross-examined. He also adduced evidence from Dr Philip Harrison, an expert on speaker identification.
The TOEIC test as administered by ETS involved two separate sessions. The first was a speaking and writing test. It was computer delivered and included digital recording of the candidate's voice. The test in due course was marked by a person. The second session involved a listening and reading test which was paper based and was scored by machine. The TOEIC test was accepted and used by the Secretary of State between April 2011 and March 2014 for the purpose of assessing applications for leave to enter or remain in the UK.
ETS did not have its own test centres. Rather, it had a network of third party suppliers and quasi-educational institutions around the world. There were and are many such suppliers and institutions in the UK. One such was Thames Education Centre. After the Panorama programme the review conducted by ETS was in two stages. First, all voice tests from UK test centres were assessed by voice recognition technology. These assessments led to a very large number of tests being considered to be suspect. Second, all suspect tests were analysed by ETS staff trained in voice recognition analysis. Every suspect test was analysed by two ETS staff acting independently. Only if both analysts confirmed that the test was an example of an individual having taken tests in place of many candidates was the test deemed to be invalid.
The expert evidence is that voice recognition software cannot be compared with the kind of analysis which a voice recognition expert would carry out if a voice sample were in issue. One indication of the validity of that evidence is the proportion of tests which were flagged as suspect by the voice recognition technology being...
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