Secretary of State for the Home Department v MA (Anonymity Direction Made)
| Jurisdiction | UK Non-devolved |
| Judge | THE HON. MR JUSTICE MCCLOSKEY |
| Judgment Date | 16 September 2016 |
| Neutral Citation | [2016] UKUT 450 (IAC) |
| Date | 16 September 2016 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2016] UKUT 450 IAC
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
The Hon. Mr Justice McCloskey, President
Upper Tribunal Judge Rintoul
For the Appellant: Mr S Kovats QC and Mr C Thomann, of Counsel, instructed by the Government Legal Department
For the Respondent: Mr R de Mello and Ms J Rothwell, of Counsel, instructed by Oaks Solicitors
MA (ETS — TOEIC testing)
-
(i) The question of whether a person engaged in fraud in procuring a TOEIC English language proficiency qualification will invariably be intrinsically fact sensitive.
-
(ii) Per curiam: where the voice data generated by TOEIC testing are those of a person other than the person claiming to have undergone the tests, there is no breach of EU or UK data protection laws.
(1) The Appellant continues to benefit from the protection of anonymity. Accordingly, nothing will be published or communicated which identifies or could have the effect of identifying him. Any infringement of this prohibition could result in, inter alia, contempt proceedings.
(2) This is the judgment of the panel to which both members have contributed. While this is the Secretary of State's appeal we shall, for convenience, continue to describe MA as “the Appellant”. The broader landscape to which this appeal belongs can be gleaned from the decisions of this Tribunal in R (Gazi) v Secretary of State for the Home Department (ETS – Judicial Review) (IJR) [2015] UKUT 327 (IAC) at [1] – [4] and SM and Qadir v SSHD (ETS – Evidence – Burden of Proof) [2016] UKUT 00229 (IAC) at [13] – [26] especially.
(3) This statutory appeal is a so-called “ETS/TOEIC” case. “ETS” denotes Educational Testing Service, a global corporation based in the US which, under contract, is one of the Home Office suppliers of so-called “Secure English Language Testing” (“SELT”). “TOEIC” denotes “Test of English for International Communication”. This appeal was heard together with two related judicial review applications, Saha (JR/10845/2015) and Mohibullah (JR/2171/2015). These three cases were conjoined after the Tribunal had identified that they have certain issues in common and with a view to saving costs. A separate judgment is being delivered in each of the cases.
(4) The Appellant is a national of Nigeria, aged 49 years. He was lawfully present in the United Kingdom as a dependant of his spouse who was granted a Tier 4 Student visa and subsequent extensions thereof from 2010 until 14 October 2014, the date of the impugned decision on behalf of the Secretary of State for the Home Department (the “ Secretary of State”). His is another of the cases involving refusal of leave to enter at port and cancellation of entry clearance on the basis of alleged deception in procuring a “TOEIC” certificate, a recognised English language proficiency qualification, which he had obtained as a compulsory element of his application for permission to enter the United Kingdom in the capacity of Tier 1 Entrepreneur. Entry clearance for this purpose was granted to him on 24 May 2013. The business enterprise to which it relates involved establishing a visa application centre, which is his business activity at an international level.
(5) The Appellant exercised his right of in-country appeal against the decision of the Secretary of State. By its decision promulgated on 27 April 2015, the First-Tier Tribunal (the “ FtT”) concluded that the Secretary of State had not discharged the burden of proving deception and had, therefore, made a decision which was not in accordance with the law (one of the statutory grounds of appeal). The Secretary of State appealed with leave and, by its decision promulgated on 24 September 2015, the Upper Tribunal set aside the decision of the FtT. It did so principally on the ground that the FtT had erred in law by failing to properly understand and engage with certain evidence. A series of case management and interlocutory hearings having intervened, it now falls to the Upper Tribunal to remake the decision of the FtT.
(6) At the commencement of the hearing, it became necessary for the Tribunal to make a preliminary ruling on the twin issues of the permitted grounds of appeal and the admissibility of certain documentary evidence upon which the Secretary of State was seeking to rely. Our ruling is attached at Appendix 1.
(7) The final prefatory matter is the issue of dates. The two most important dates in the factual matrix are, by some measure, 28 February 2013 and 20 March 2013. The first of the two TOEIC Certificates pertaining to the Appellant recites that on the first of these dates he, having undergone the first limb of the test, secured scores of 445 out of 495 and 410 out of 495 in the skills of listening and reading respectively. The second TOEIC Certificate records that on 20 March 2013 the Appellant secured a score of 200 out of 200 for the skill of speaking and 190 out of 200 for that of writing. The spotlight in this appeal is firmly, though not exclusively, on the speaking score which he claims to have obtained.
(8) As noted above, the decision made on behalf of the Secretary of State which underlies these proceedings was made at port on 14 October 2014. The Appellant, having flown from abroad, was detained at Heathrow Airport on suspicion of having engaged in TOEIC fraud and was interviewed. This resulted in a decision of the Border Force officer concerned cancelling the Appellant's leave to remain in the United Kingdom and refusing him leave to enter under paragraph 321A(2) of the Immigration Rules, which provides:
“The following grounds for the cancellation of a person's leave to enter or remain which is in force on his arrival in, or whilst he is outside, the United Kingdom apply: …..
(2) False representations were made or false documents were submitted (whether or not material to the application and whether or not to the holder's knowledge), or material facts were not disclosed, in relation to the application for leave; or in order to obtain documents from the Secretary of State or a third party required in support of the application …..”
The error of law diagnosed in the decision of the FtT giving rise to this remaking exercise concerned the Judge's approach to this provision of the Rules.
(9) The Secretary of State's case, in a nutshell, is that the Appellant procured the second of his two TOEIC Certificates by fraud. Thus, we observe, the shifting burdens of proof outlined in SM and Qadir at [57] – [58] are engaged.
(10) Intensive pre-hearing case management has reduced the issues to be considered. These have been formulated with some precision. Underpinning the issues is the Appellant's acceptance that the voice contained in the computerised voice files which are said to have been generated by his TOEIC speaking test is not his. The Appellant's formulation of the issues to be addressed is the following:
-
(i) Whether his voice was properly recorded and/or correctly transferred to ETS in the United States.
-
(ii) Whether the voice recordings provided by ETS in these proceedings relate to the test which he took.
-
(iii) Whether there was a breach of the Data Protection Act in the transmission of his data to ETS in the United States.
On behalf of the Secretary of State, it is contended that the central issue to be determined by the Tribunal is whether the Appellant used a proxy to undertake the speaking test. This effectively encompasses issues (i) and (ii).
(11) One of the beneficial effects of combining this appeal with the two related judicial reviews was that the expert evidence generated in each case was considered in the round. One aspect of this was a pre-hearing meeting of the three experts and an ensuing joint memorandum which demonstrated a substantial measure of agreement among them.
(12) At this juncture it is appropriate to reflect briefly on the expert evidence. There is evidence from three expert witnesses. Sensibly and commendably, as a result of a collaborative approach the experts produced a joint memorandum. In addition, two of them, Mr Stanbury and Professor Sommer, gave evidence to the Tribunal.
(13) The expertise of the three persons concerned belongs to the fields of computing, database programming, computer forensics and computer security, in general terms. In their joint memorandum the experts helpfully outline the task to which their endeavours were addressed:
“The task of the experts was to review the available material which consisted of a variety of print outs said to come from computers, handbooks which should have been used during the testing, testimonial evidence from the organisers of the events and from Home Office officials and some paper records. There was also a BBC ‘Panorama’ programme about the use of proxies and other frauds run by testing centres for the benefit of attendees ……
The issue before the experts was to consider the plausibility of scenarios which might explain how the ETS computer records could reconcile the two conflicting assertions: that the audio recordings were created by proxies and that [the students] actual recordings were incorrectly married up in the ETS records.”
[Emphasis added.]
(14) In order to understand what follows it is necessary to appreciate that the judicial review applicants, Mr Mohibullah and Mr Saha and the Appellant in the related case, MA, claim to have undergone their TOEIC speech testing at different test centres. These were, respectively:
-
(a) Mr Mohibullah: Synergy Business College.
-
(b) Mr Saha: Elizabeth College.
-
(c) Mr MA: Cauldon College.
All of these centres are located in the Greater London...
To continue reading
Request your trial
-
Nabeel Ahsan v The Secretary of State for the Home Department
...On 16 September 2016 the UT (McCloskey P and UTJ Rintoul) promulgated its judgment in MA v Secretary of State for the Home Department [2016] UKUT 450 (IAC). This was another statutory appeal where the decision of the FTT was set aside and fell to be re-made by the UT. The available evidenc......
-
The Queen (on the application of Malvinder Kaur) v Secretary of State for the Home Department
...and Qadir and three cases which were heard together, namely, Secretary of State for the Home Department v MA (ETS – TOEIC testing) [2016] UKUT 00450 (IAC), R (Mohibullah) v Secretary of State for the Home Department (TOEIC – ETS – judicial review principles) [2016] UKUT 00561 (IAC) and R (S......
-
R Mohammad Mohibullah v Secretary of State for the Home Department
...with the related case of Saha (JR/10845/2015) and the statutory appeal in the case of MA v Secretary of State for the Home Department [2016] UKUT 450 (IAC) [39899/2014] as all three cases were considered to raise certain common issues. Judgment has been given in MA. On the date when judgmen......
-
Upper Tribunal (Immigration and asylum chamber), 2018-11-01, HU/07911/2018
...the occasional false positive whereby an innocent student is wrongly identified as having cheated in their test. In MA (Nigeria) [2016] UKUT 450 (IAC) the Upper Tribunal stated that “we acknowledge the suggestion that the Appellant had no reason to engage in the deception which we have foun......