SM and another v Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal,The Hon. MR Justice McCloskey, President,THE HON. MR JUSTICE MCCLOSKEY,THE HON. MR JUSTICE McCLOSKEY |
| Judgment Date | 07 March 2016 |
| Neutral Citation | [2016] UKUT 229 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 07 March 2016 |
[2016] UKUT 229 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
The Hon. Mr Justice McCloskey, President
Deputy Upper Tribunal Judge Saini
First Appellant: Mr M Biggs, of counsel, instructed by Universal Solicitors
Second Appellant: Mr Z Malik, of counsel, instructed by AWS Solicitors
Respondent: Mr R Dunlop, of counsel, instructed by the Government Legal Department
SM and Qadir v Secretary of State for the Home Department (ETS — Evidence — Burden of Proof)
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(i) The Secretary of State's generic evidence, combined with her evidence particular to these two appellants, sufficed to discharge the evidential burden of proving that their TOEIC certificates had been procured by dishonesty.
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(ii) However, given the multiple frailties from which this generic evidence was considered to suffer and, in the light of the evidence adduced by the appellants, the Secretary of State failed to discharge the legal burden of proving dishonesty on their part.
Mindful of the proliferation of jargon and acronyms in the sphere to which these appeals belong, we preface our judgment with the following short glossary:
| “ACCA”: | Association of Chartered Certified Accountants |
| “CCL”: | Central College of London |
| “ETS”: | “Educational Testing Services”, the international entity which provided the Home Office with services relating to English language testing in the United Kingdom. |
| “False positive”: | An incorrect finding that a TOEIC testing student cheated in some unspecified way. |
| “False negative”: | An incorrect finding that a TOEIC student did not cheat in the testing. |
| “GCID”: | General Case Information Database |
| “IELTS”: | International English Language Testing System”, one of the recognised English language qualifications in the Immigration Control system. |
| “Invalid”: | The ETS assessment of TOEIC testing scores which must be rejected. |
| “LSBF”: | London School of Business and Finance |
| “Questionable”: | The ETS assessment of TOEIC scores which must be considered doubtful. |
| “SELT”: | Secure English Language Test |
| “TOEIC”: | Test of English for International Communication |
| “TOEFL”: | Test of English as a Foreign Language |
| “UKBA”: | The United Kingdom Borders Agency. |
| “UKVI”: | UK Visas and Immigration |
These appeals belong to the relatively substantial cohort of so-called “ETS/TOEIC” cases. In each case the Secretary of State for the Home Department (the “ Secretary of State”) has made a decision cancelling the Appellants' leave to remain in the United Kingdom on the ground that they secured an English language qualification, recorded in a “TOEIC” certificate, by fraud. Each Appellant appealed, unsuccessfully, to the First-tier Tribunal (the “ FtT”), whose decisions were subsequently set aside by this Tribunal as erroneous in law. In the case of the Appellant SM, the error of law identified was, in essence, a disproportionate reliance on the Secretary of State's generic evidence without dealing adequately with the Appellant's evidence and a lack of adequate reasons. In the case of the Appellant Mr Qadir, the FtT was held to have erred in law on the issue of burden of proof. It now falls to this Tribunal to remake the decisions of the FtT.
The general background of this particular sphere of litigation was explained in R (Gazi) v Secretary of State for the Home Department (ETS – judicial review) (IJR) [2015] UKUT 327 (IAC) at [1] in these terms:
“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 439 (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 “broader landscape” was outlined, at [45], as follows:
“Some of the decisions in the broad ETS/TOEIC category have generated a right of appeal to the First-tier Tribunal (“FtT”), in country. This has occurred typically in cases where the student concerned has been challenged at port upon returning to the United Kingdom from, for example, a visit to the country of origin, followed by an in-country appealable decision of the Secretary of State. Others have generated a right of appeal exercisable only out of country (as in the present case). Other cases, believed to be the majority, have generated judicial review challenges, as in Mahmood and the present case. Thus there is a slowly expanding body of case law in this sphere. In all of these cases, the Secretary of State has relied on evidence of a generic kind. This consists of the witness statements of Rebecca Collings and Peter Millington, both dated 23 June 2014. The statements of these two witnesses have neither evolved nor altered since then. In some cases, as in the present one, these statements are supplemented by a further witness statement of another Home Office official.”
The “evolving landscape”, noted in [47], has continued to develop.
Notably in Gazi, there was some emphasis on judicial review providing an inadequate forum for the determination of legal challenges of this species, to be contrasted with the several advantages of such challenges unfolding within the statutory appeals framework. See in particular [36]:
“At this juncture it is convenient to consider the issue of alternative remedy, given the inextricable nexus between this issue and the Applicant's first ground of challenge. In my judgment the substance and contours of the Applicant's improper purpose case confirm that an appeal to the FtT, pursued out of country, is a demonstrably superior mechanism for this species of challenge than an application for judicial review which, as has been repeatedly observed, invokes a judicial supervisory jurisdiction and is not an appellate process. The presentation of the Applicant's case involved a detailed, forensic examination of the Secretary of State's evidence, coupled with a lengthy exposition of the main issues raised in the expert report of Dr Harrison. I consider it appropriate to highlight what this judicial review hearing lacked: there was no examination in chief or cross examination of the Applicant or any witness on his behalf; nor was there any live evidence from any witness on behalf of the Secretary of State; and there was no examination in chief or cross examination of Dr Harrison or any other expert witness. All of these missing factors arise in a litigation context in which the bona fides and character of the Applicant are important issues. However, there was no opportunity to evaluate the Applicant's demeanour or to assess his performance under cross examination.”
This area of litigation is nothing if not organic, as is demonstrated by the growing body of jurisprudence. In July 2015 the Court of Appeal promulgated two decisions: R (Mehmood and Ali) v Secretary of State for the Home Department [2015] EWCA Civ 744 and R (Sood) v Secretary of State for the Home Department [2015] EWCA Civ 831. The next landmark occurred in the several decisions of this Tribunal made in December 2015: R (Jakhu) v Secretary of State for the Home Department (ETS: legitimate expectations) (IJR) [2015] UKUT 693 and R (Roohi and Another) v Secretary of State for the Home Department (2014 Act: saved appeal rights) (IJR) [2015] UKUT 685.
The present appeals are the first of several heralding a new phase in Upper Tribunal litigation in this field. They are said to raise fresh issues, not previously the subject of judicial consideration or determination. In particular, litigants are now concentrating their attentions on (in summary) the strength and quality of the Secretary of State's evidence, the exacting burden of proving deception and the range of evidence which can be adduced by litigants in aid of their cause.
Reduced to their main essentials, the Appellants' cases have four components. First, it is contended that the evidence upon which the Secretary of State's decision was taken is insufficient to discharge the burden of establishing that either Appellant engaged in deception in the matter of his TOEIC Certificate. Second, the Appellants rely on their own evidence, central to which is the claim that they have been proficient in the English language for some considerable time, are persons of good character and had no need or incentive to cheat. They also rely on their evidence relating...
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