Upper Tribunal (Immigration and asylum chamber), 2024-03-11, UI-2022-002694 & UI-2022-002695
| Appeal Number | UI-2022-002694 & UI-2022-002695 |
| Hearing Date | 21 December 2023 |
| Date | 11 March 2024 |
| Published date | 26 March 2024 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2022-002694 & UI-2022-002695
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2022-002694 UI-2022-002695
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First-Tier Tribunal No: HU/06476/2020 HU/06494/2020 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
11th March 2024
Before
THE PRESIDENT, MR JUSTICE DOVE
and
UPPER TRIBUNAL JUDGE MANDALIA
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
VARKEY & JOSEPH
(NO ANONYMITY DIRECTION MADE)
Respondent
Heard at Field House on 18 to 21 December 2023
Representation:
For the Appellant: Mr Z Malik KC, Mr C Thomann and Mr R Evans, Counsel, instructed by the Government Legal Department
For the Respondent: Mr G Ó Ceallaigh, and Mr A Schymyck, Counsel, instructed by Imran Khan & Partners Solicitors
Decision and Reasons
Introduction
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The appellant in the appeal before us is the Secretary of State for the Home Department (“SSHD”) and the respondents to this appeal are Mr Varkey and Ms Joseph. However, for ease of reference, in the course of this decision we now adopt the parties’ status as it previously was before the First-tier Tribunal (“FtT”). We refer to Mr Varkey and Ms Joseph as the appellants, and the Secretary of State (“SSHD”) as the respondent.
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This is yet another appeal in which this Tribunal has had cause to consider the issues that arise following the filming by BBC Panorama of government-approved exams required to satisfy the English Language requirement in the Immigration Rules. We do not burden this decision by reciting the findings and conclusions reached by successive Presidential panels of the Tribunal. In Ahsan & Others v Secretary of State [2017] EWCA Civ 2009, Underhill LJ referred to the TOEIC litigation to date at paragraphs [23] to [33] of his judgment.
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We are grateful to Counsel for their clear and helpful submissions, both in writing and at the hearing before us although we have not found it necessary to refer to each and every point they raised.
The Agreed Facts
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The appellants are husband and wife and are nationals of India. Mr Varkey, prior to leaving India, obtained a BA degree in English Literature and a Diploma in General Nursing, before working as a nurse. He entered the United Kingdom on 27 August 2010 with entry clearance as a Tier 4 (General) Migrant for the purposes of studying an NVQ Level 3 qualification valid until 27 June 2012.
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Between 21 August 2010 and 28 April 2012 Mr Varkey sat the International English Language Testing System (“IELTS”) secure English language tests. On each occasion, he failed to attain a minimum B2 proficiency score of 5.5 in a single module, reading. However his score in the speaking test was, on every occasion, at or above the required level.
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Mr Varkey left the United Kingdom on 27 June 2012 and returned to India. He applied to return to the UK and on 10 August 2012, was issued with a Tier 4 student visa which was valid until 27 June 2013. In support of his application for entry clearance, Mr Varkey relied upon a TOEIC test certificate issued by ETS, purporting to verify his sitting and obtaining listening and reading scores of 475 and 410 on 21 May 2012. He claims that he also sat a speaking and writing test on 21 May 2012 that he was later told he had failed, but in respect of which he never received any score. ETS has no record of any speaking and writing test completed by him on that day. In support of his entry clearance application, Mr Varkey also relied upon a TOEIC test certificate which purported to attest to his taking a ‘speaking and writing’ test at the London College of Social Studies on 19 June 2012, and to his attainment of a score of 200 in the speaking component, and 170 in the writing component. Mr Varkey returned to the UK on 25 August 2012.
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Ms Joseph was granted a dependent visa to join her husband in the UK on 23 October 2012, valid until 27 June 2014. She has since been granted leave to remain in line with that granted to Mr Varkey.
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On 10th February 2014, the BBC broadcast an edition of “Panorama” on BBC1 in which undercover reporters gained access to several test centres within the United Kingdom. At these test centres secure English language tests were being undertaken by persons subject to immigration control for the purpose of making applications for leave to remain. The BBC investigation revealed, via the use of covert recording devices, significant fraud in the taking of such tests. The investigation has received widespread publicity in the media.
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In particular, it was revealed by the undercover BBC investigation that oral English tests set by ETS which were being taken remotely via computer, were sat not by the actual candidate but by ‘proxy’ test takers.
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Following the revelations of the undercover BBC investigation, ETS undertook a review of the validity of test scores awarded by it at various centres in the United Kingdom.
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ETS informed the SSHD thereafter that test scores for a large number of test-takers had been cancelled. ETS identified ‘proxy test takers’ via the use of computerised voice recognition software, which matched multiple tests taken under different identities. These were then subjected to a further human review in each case by two anti-fraud staff (each of whom has determined that a proxy was used) who purported to determine that the applicant’s ETS language test score was obtained by the use of a proxy test taker.
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On 17 June 2014, Mr Varkey applied for leave to remain as a Tier 2 migrant, specifically as a registered nurse. This was granted until 19 June 2019. However, on 12 September 2017, his leave to remain was curtailed to expire on 18 November 2017.
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On 16 November 2017, Mr Varkey applied for further leave as a Tier 2 Migrant. His application was refused on 27 November 2017 on the grounds, inter alia, that he had used deception in his entry clearance application of August 2012. On 3 January 2018 the refusal decision was maintained following an administrative review. The respondent said:
“…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 19 June 2012 at London College of Social Studies have now been cancelled by ETS. On the basis of the information provided to her by ETS the SSHD is satisfied that your certificate was fraudulently obtained and that you used deception in your :application of 04 August 20l2.
In fraudulently obtaining a TOEIC certificate in the manner outlined above, you willingly participated in what was clearly an organized and serious attempt, given the complicity of the test centre itself, to defraud the SSHD and others. In doing so, you displayed a flagrant disregard for the public interest, according to which migrants are required to have a certain level of English language ability in order to facilitate social integration and cohesion, as well as to reduce the likelihood of them being a burden on the taxpayer.
Accordingly, I am satisfied that your presence in the UK is not conducive to the public good because your conduct makes it undesirable to allow you to remain in the UK.
In light of this the Secretary of State has deemed that refusal under general grounds is appropriate under paragraph 322(2) and is not prepared to exercise discretion in your favour…”
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Mr Varkey challenged that decision by a claim for judicial review. Following the grant of permission, that claim was compromised by the parties and the SSHD agreed that Mr Varkey had made a fresh claim under Article 8 ECHR that was likely to attract an in-country right of appeal. The SSHD agreed that, in the event that Mr Varkey succeeds in any appeal on the basis that he did not commit a TOEIC fraud, then, in the absence of a new factor justifying a different course, the SSHD would withdraw the decisions of 27 November 2017 and 3 January 2018 and grant the appellants a reasonable opportunity (not less than 60 days) to submit an application for further leave.
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In a determination dated 5 April 2022, the FtT allowed the appellants’ appeal against the decision of the SSHD to refuse their applications for leave to remain on family and private life grounds. The decision of the FtT was set aside by Upper Tribunal Judge Canavan and Deputy Upper Tribunal Judge Monson on 3 November 2022. The panel directed that the decision will be remade in the Upper Tribunal.
The Issues
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The parties have agreed a schedule of issues:
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Whether Mr Varkey cheated in his TOEIC English language speaking test in 2012, which will require consideration of:
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The correct approach to the standard of proof where fraud is alleged;
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Whether the evidence adduced by the SSHD is sufficient to meet the evidential burden;
The correct approach that a Tribunal should take to assessing whether, where there is a case to answer, the SSHD’s evidence...
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