The Queen (on the application of Sohrab Mahmud) v The Upper Tribunal (Immigration and Asylum Chamber)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dingemans,Sir Nigel Davis,Lord Justice Singh |
| Judgment Date | 08 July 2021 |
| Neutral Citation | [2021] EWCA Civ 1004 |
| Docket Number | Case No: C8/2020/0098 |
| Court | Court of Appeal (Civil Division) |
[2021] EWCA Civ 1004
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
His Honour Judge Jarman QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Singh
Lord Justice Dingemans
and
Sir Nigel Davis
Case No: C8/2020/0098
and
Paul Turner and Zahab Jamali (instructed by Hubers Law Solicitors) for the Appellant
Colin Thomann (instructed by Government Legal Department) for the Interested Party
The Upper Tribunal did not appear and was not represented
Hearing date: 17 June 2021
Approved Judgment
Introduction
This is the hearing of an appeal against a decision dated 25 November 2019 of His Honour Judge Jarman QC, sitting as a High Court Judge, refusing the appellant, Sohrab Mahmud, permission to apply for judicial review. As this was a Cart v Upper Tribunal [2011] UKSC 28; [2012] 1 AC 663 application to the Administrative Court, there was no right, pursuant to the provisions of CPR 54.7A, to have an oral renewal of the application for permission to apply for judicial review following the refusal by HHJ Jarman QC to grant permission to apply on the papers.
The decision which is to be challenged in the judicial review proceedings, if the appeal is allowed and permission to apply for judicial review is granted, is a decision of the respondent, the Upper Tribunal (Immigration and Asylum Chamber) dated 28 June 2019. On that date Upper Tribunal (“UT”) Judge Owens refused to grant permission to Sohrab Mahmud, the appellant, to appeal against a decision of the First-tier Tribunal (“FTT”) dated 20 February 2019. In the decision dated 20 February 2019 FTT Judge Monson dismissed an appeal by Mr Mahmud against a decision dated 24 April 2018 of the interested party, the Secretary of State for the Home Department, refusing to grant Mr Mahmud leave to remain. The decision of FTT Judge Monson followed a hearing which had taken place on 31 January 2019 at Taylor House Tribunal Hearing Centre, London.
The Secretary of State's decision refusing to grant leave to remain was made on the basis that Mr Mahmud had used deception when taking an English language test on 18 April 2012 at the London College of Technology. Mr Mahmud strongly denies that he used any deception and says that he had taken and passed the English language test.
Issues on the appeal
As this is a Cart case the issue before us, pursuant to CPR 54.7A, is whether HHJ Jarman QC should have found that: (1) the application for permission to apply for judicial review raised an arguable case, with a reasonable prospect of success, that the decision of UT Judge Owens to refuse permission to appeal against the decision of FTT Judge Monson was wrong; and (2) that the claim raised an important point of principle or practice or there was some other compelling reason to hear the application for judicial review.
Mr Mahmud also seeks permission to adduce fresh evidence on the hearing of his appeal. There has been some movement in the position adopted on behalf of Mr Mahmud about which evidence is to be adduced. The way in which that application has been made has raised a number of procedural issues and, even at the hearing, there was not an application notice identifying the fresh evidence but there was a draft of an amended appellant's notice which sought permission to adduce fresh evidence.
I am very grateful to Mr Turner and Mr Jamali, on behalf of Mr Mahmud, and Mr Thomann, on behalf of the Secretary of State, and their respective legal teams, all of whom have substantial experience of the TOEIC litigation, for their helpful written and oral submissions. By the conclusion of the hearing it was apparent that the issues to be determined were whether: (1) HHJ Jarman QC was wrong to refuse permission to apply for judicial review of the decision of UT Judge Owens; and (2) Mr Mahmud should be permitted to rely on fresh evidence at the hearing of this appeal. Before addressing these issues it is necessary to set out a bit of background about what has become known as the TOEIC litigation.
The TOEIC litigation
As is apparent from this introduction, this appeal forms part of what is sometimes called the ETS or TOEIC litigation. As is now well-known, the immigration rules require certain applicants for leave to remain to pass a test of proficiency in written and spoken English. One test was the “Test of English for International Communication” (“TOEIC”). The tests were provided by a United States corporation called Educational Testing Service (“ETS”). The TOEIC tests were available at a large number of test centres in the United Kingdom. The spoken test involves the candidate being recorded reading a text, and the recording was then sent to an ETS assessor, or contractor to ETS, to be marked.
There was widespread cheating at a number of test centres. In February 2014 the BBC Panorama programme reported on the cheating. The Home Office required ETS to employ voice recognition software to go back over the recordings from the test centres to try and identify cases in which it appeared that the same person had spoken in multiple tests, suggesting that the person was a professional proxy. ETS reported its findings to the Secretary of State and in 2014 and 2015 the Secretary of State made decisions in about 40,000 cases cancelling or refusing leave to remain on the basis that those persons had cheated in the TOEIC test.
As Underhill LJ noted in Ahsan v Secretary of State for the Home Department [2017] EWCA Civ 2009; [2018] HRLR 5 “although it seems clear that cheating took place on a huge scale, it does not follow that every person who took the TOEIC test in any centre was guilty of it”. Indeed there have been numerous cases in the FTT, UT and High Court in which individuals accused of cheating have successfully challenged the allegation in their particular case. The TOEIC litigation has raised a number of issues.
The evidence adduced on behalf of the Secretary of State developed during the course of the TOEIC litigation. There was originally generic evidence from Home Office officials, Rebecca Collings and Peter Millington about the reports from ETS about tests which were reported to be “invalid” or “questionable” and the way in which those conclusions had been made. ETS provided the “ETS look up tool” to marry up the tests with the individuals taking the tests. By 2017 that evidence was supplemented by evidence from another Home Office official called Adam Sewell who identified test results from a number of test centres in London, which suggested that certain centres were what was described as “fraud factories”.
During the course of the TOEIC litigation it became apparent that ETS had retained copies of the individual voice recordings. These were supplied, without charge, on request. If the individual can identify their own voice on the recording and it is either agreed or proved by expert evidence that it is their voice it will be obvious that the charge of fraud against the individual cannot be sustained. However even where it was common ground that the voice on the recording is not that of the individual, as it is in this appeal, some individuals, and Mr Mahmud, have continued to assert that they have not cheated. Possible explanations for the fact that the “wrong” voice is recorded on the test include the fact that ETS have wrongly attributed someone else's test to the individual by mixing up the tapes, or because there were fraudsters running the test who decided to send in a fraudulent test rather than the actual test sat by the individual. Mr Turner points out that the first possibility is supported by the fact that ETS have not given direct evidence to the Courts or Tribunals about how they have attributed the tests to an individual or proved continuity of custody of the relevant tape.
There have been a number of decisions in the TOEIC litigation from the Tribunals and Courts about the quality of the evidence adduced by the Home Office. On 31 March 2016 in SM and Qadir v Secretary of State for the Home Department [2016] UKUT 229 (IAC) the Upper Tribunal held that the evidence adduced from Ms Collings and Mr Millington was just sufficient to transfer the evidential burden to the applicants to answer the case that they had cheated in the test. In that case the Upper Tribunal heard evidence from the individual appellants and found that they had not cheated. The Upper Tribunal emphasised that “every case belonging to the ETS/TOEIC stable will inevitably be fact sensitive”, see paragraph 102.
On 16 September 2016 the Upper Tribunal gave judgment in MA v Secretary of State for the Home Department [2016] UKUT 450 (IAC). In that case it was common ground that the voice recording did not contain the voice of the individual. The Upper Tribunal acknowledged that there were “enduring unanswered questions and uncertainties relating in particular to systems, processes and procedures” about how the voices and scores were matched to each other. It was recorded that “the question of whether a person engaged in fraud in procuring a TOEIC English language proficiency qualification will be intrinsically fact sensitive”.
There was an appeal in SM and Qadir to the Court of Appeal, and judgment was given on 25 October 2016 as Majumder and Qadir v Secretary of State for the Home Department [2016] EWCA Civ 1167. The Court of Appeal emphasised again that every TOEIC case was fact sensitive, see paragraph 27.
Various decisions continued to be made on the facts in cases. In some cases the individuals succeeded, see Iqbal v Secretary of State for the Home Department [2017] EWHC 79...
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Upper Tribunal (Immigration and asylum chamber), 2022-10-06, HU/20299/2019
...must reach its own views, applying the relevant burden and standard of proof’. Further, R (Sohrab Mahmud) v Secretary of State [2021] EWCA Civ 1004 at [50] identified when addressing the significance of the APPG report identified ‘none of the evidence in the transcript descended into detail......
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R Zubair Ahmad v Secretary of State for the Home Department
...Claimant but by dishonest proxy. The background is well known from what has been called the TOEIC litigation: see eg. R (Mahmud) v UT [2021] EWCA Civ 1004 and DK v SSHD [2022] UT 2 The Claimant says that his application on 3 November 2012 was only ever supported by certified TOEIC tests da......
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Upper Tribunal (Immigration and asylum chamber), 2021-11-02, HU/11200/2019
...There were no submissions made about this piece of evidence. In any event he relied on R (Mahmud) and UTIAC and Secretary of State [2021] EWCA Civ 1004. The case concerned the Appellant seeking to rely on the transcripts of evidence given to the APPG where Dingemans LJ at paragraph 50 state......
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Upper Tribunal (Immigration and asylum chamber), 2021-11-05, HU/15184/2018
...my findings above, in October 2018 (see above) the issue of the request of tests from ETS was specifically raised. R (Mahmud) v SSHD [2021] EWCA Civ 1004 noted that ETS ‘had retained copies of the individual voice recordings. These were supplied, without charge, on request. If the individua......