R (on the application of Gazi) v Secretary of State for the Home Department (ETS - Judicial Review) (IJR)
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice McCloskey,McCloskey J |
| Judgment Date | 27 May 2015 |
| Neutral Citation | [2015] UKUT 327 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 27 May 2015 |
[2015] UKUT 327 (IAC)
Upper Tribunal
Immigration and Asylum Chamber
Judicial Review Decision Notice
In the matter of an application for judicial review
The Honourable Mr Justice McCloskey, President of the Upper Tribunal
Having heard Mr N Armstrong, of Counsel, instructed by Bindmans Solicitors, on behalf of the Applicant and Mr M Gullick, of Counsel, instructed by the Government Legal Department on behalf of the Respondent at a hearing at Field House, London on 21 April and 05 May 2015.
R (on the application of Gazi) v Secretary of State for the Home Department (ETS — judicial review) IJR
A challenge to the strength and quality of the evidence underpinning the Secretary of State's decision to remove a student from the United Kingdom under section 10 of the Immigration and Asylum Act 1999 on the ground of fraud in procuring a TOEIC English language qualification is best suited to the fact finding forum of the First-tier Tribunal and is unsuitable for determination by an application for judicial review.
The litigation context in which this challenge unfolds is conveniently identified in an earlier decision of this Tribunal, R (Mahmood) v Secretary of State for the Home Department [2014] UKUT 00439 (IAC), at [1]:
“This is another of the currently plentiful crop of soi-disant “ETS” judicial review cases. These have gained much currency during recent months, stimulated by action taken on behalf of the Secretary of State for the Home Department (“the Secretary of State”), the Respondent herein, in the wake of the BBC “Panorama” programme broadcast on 10 February 2014. “ETS” denotes Educational Testing Services, a global agency contracted to provide certain educational testing and assessment services to the Secretary of State. In order to secure leave to remain in the United Kingdom, by virtue of the relevant provisions of the Immigration Rules it was incumbent on the Applicant to provide evidence that he had obtained a specified type of English language qualification. The action taken on behalf of the Secretary of State, which the Applicant challenges by these proceedings, was based on an assessment that the English language certificate on which he relied had been procured by deception.”
The decision in Mahmood was promulgated in September 2014. At the outset, it is convenient to be aware that the vocabulary in this sphere includes in particular the following:–
“TOEIC”: this denotes “Test of English for International Communication”.
“ETS”: this denotes the entity Educational Testing Service Limited, one of the Home Office suppliers of “secure English language testing”.
The impugned decision of the Respondent, the Secretary of State for the Home Department (hereinafter the “ Secretary of State”) was initially conveyed to the Applicant by letter dated 25 July 2014, in these terms:
“It has come to the attention of the Home Office, from information provided by Educational Testing Service (ETS) that an anomaly with your speaking test indicated the presence of a proxy test taker …
In light of this information it is the considered opinion of the Home Office that you have utilised deception to gain leave to remain in the United Kingdom.”
The letter also spelled out the consequence of this assessment: steps would be taken to remove the Applicant from the United Kingdom under section 10 of the Immigration and Asylum Act 1999. Some two months following the initiation of these proceedings the Secretary of State made a fresh decision, evidently precipitated by the case made, and evidence presented, by the Applicant. This further decision, which is dated 19 January 2015, maintained the predecessor decision and replicated the passages in the earlier decision reproduced above. This is the current, operative decision which is challenged in these proceedings. This was followed by service of formal Notice of Removal.
Between the two last mentioned events, appropriate case management measures were taken and the Applicant applied, unsuccessfully, for interim relief in a form which would permit him to resume his studies at the relevant university. Next, following an inter-partes hearing, I granted permission to apply for judicial review. The Applicant was also permitted to amend his grounds of challenge. The substantive hearing ensued. In passing, I mention for completeness an even more recent decision, dated 14 April 2015, whereby the Secretary of State has certified as clearly unfounded the Applicant's outstanding human rights claim, which was made on 13 August 2014. This was accompanied by a Notice of Removal of the same date, the terms whereof encapsulate the reasons for the impugned decision:
“You are specifically considered a person who has sought leave to remain in the United Kingdom by deception. For the purposes of your application dated 04 November 2013, you submitted a TOEIC certificate from [ETS] to the Home Office and your sponsor in order for them to provide you with a Confirmation of Acceptance for Studies [a so-called “CAS” certificate]. …
ETS has a record of your speaking test. Using voice verification software, ETS is able to detect when a single person is undertaking multiple tests. ETS undertook a check of your test and confirmed to the SSHD that there was significant evidence to conclude that your certificate was fraudulently obtained by the use of a proxy test taker. Your scores from the test taken on 28 August 2013 at Eden College International have now been cancelled by ETS.”
The next ensuing sentence encapsulates the Secretary of State's case:
“On the basis of the information provided to her by ETS, the SSHD is satisfied that there is substantial evidence to conclude that your certificate was fraudulently obtained.”
The Applicant is a national of Bangladesh, aged 33 years. He was lawfully present in the United Kingdom, as a student, from July 2007. During the following years, he obtained certain academic qualifications. In December 2013 he was granted a Tier 4 Visa, valid until 30 October 2015. This followed his admission to a course at Glyndwr University (hereinafter “ the university”). He then undertook the stipulated English language (“TOEIC”) tests and, in January 2014, was informed by the university that he had been successful. The advent of the first decision letter, in July 2014 ( supra) followed his completion of the first semester. Next, in September 2014, the university informed him by letter that their Tier 4 licence had been suspended by the Secretary of State. The letter further intimated that the university was withdrawing its sponsorship of the Applicant as it had been informed that his TOEIC Certificate had been procured by deception.
In the first of his two witness statements, the Applicant protests that his English language skills are of a high standard and he elaborates on the various qualifications obtained by him between 2007 and 2011. He also describes the circumstances and events surrounding the test which he claims to have taken, on 28 August 2013. Part of the test involved the reading of certain sentences aloud. There were some ten students in attendance. According to the Applicant:
“Everyone taking the exam spoke loudly and it sounded like I was in a pub as we were all speaking at the same time.”
The other elements of the test involved writing, listening and reading. Continuing, he recounts that he was able to continue his studies, completing the second semester, between September and November 2014, in spite of the university's letter, having apparently re-enrolled in error. It appears that his studies effectively came to a halt at this stage.
The generic witness statement of Ms Collings is made in the context of a regulatory era wherein the Immigration Rules and/or Home Office policies require large numbers of immigrants to demonstrate English language competence to a certain standard and via prescribed mechanisms. The ETS entity is one of a small number of Home Office suppliers of so-called “Secure English Language Testing” (“SELT”) and was appointed in 2011 following a procurement exercise. ETS notifies those examined of their grades by a certificate. It operates test centres where the requisite examination is undertaken. The Home Office has consistently been alert to the risk of fraud in this sphere.
The Home Office was first alerted to “ the potential issues with testing at ETS” upon receipt of a letter dated 06 January 2014 from the BBC. The makers of the “Panorama” programme claimed to have uncovered evidence of fraud which included the active collusion and participation of employees at the ETS test centres. The investigation focused on two specific centres. One of these is Eden International College, where the Applicant underwent his test. On 06 February 2014 the Home Office made a public announcement that ETS testing in the United Kingdom was being suspended. At this stage ETS had been operating tests for almost three years. The Panorama programme followed, on 10 February 2014. The contents of the programme convinced the Home Office that there had been “ a serious breach of the licence and of use of the immigration system”. In particular:
“….. In relation to ETS test centres, individuals were able to pay to pass the English language test. Proxy test takers were seen taking the speaking element of the test and answers were seen read out from the front of a class supposedly taking a multiple choice element of the test.”
Immediately thereafter, ETS interacted with the Home Office in the provision of unspecified “ data, trend analysis and other evidence”. Next, in late March 2014, the...
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