Upper Tribunal (Immigration and asylum chamber), 2022-03-25, [2022] UKUT 00112 (IAC) (DK and RK (ETS: SSHD evidence, proof))
| Judge | The Hon. Mr Justice Lane, President, Mr C M G Ockelton, Vice President |
| Status | Reported |
| Published date | 21 April 2022 |
| Date | 25 March 2022 |
| Hearing Date | 25 November 2021 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | ETS: SSHD evidence, proof |
| Appeal Number | [2022] UKUT 00112 (IAC) |
Neutral Citation: [2022] UKUT 00112 IAC
DK & RK (ETS: SSHD evidence; proof) India
Upper Tribunal
(Immigration and Asylum Chamber)
At Field House
THE IMMIGRATION ACTS
Heard on 1 and 2 March, 18, 19 and 25 November 2021
Promulgated on 25 March 2022
Before
THE HON. MR JUSTICE LANE, PRESIDENT
MR C M G OCKELTON, VICE PRESIDENT
Between
D K
R K
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
and
MIGRANT VOICE
Intervener
Representation:
For the Appellant DK: Mr P Turner and Mr J Gajjar, of Imperium Chambers
For the Appellant RK: Mr R Ahmed and Mr Z Raza, instructed by Charles Simmons Solicitors
For the Respondent: Ms L Giovanetti QC and Mr C Thomann, instructed by Government Legal Department.
For the Intervener: Mr M. Biggs, instructed by Moorehouse Solicitors
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The evidence currently being tendered on behalf of the Secretary of State in ETS cases is amply sufficient to discharge the burden of proof and so requires a response from any appellant whose test entry is attributed to a proxy.
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The burden of proving the fraud or dishonesty is on the Secretary of State and the standard of proof is the balance of probabilities.
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The burdens of proof do not switch between parties but are those assigned by law.
DECISION AND REASONS
INTRODUCTION
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This decision forms the next episode in the saga of cases arising from the Test of English for International Communication (“TOEIC”) certificates obtained from test centres in the United Kingdom administering tests set by the Educational Testing Service (“ETS”).
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The BBC Panorama programme broadcast on 10 February 2014 exposed widespread cheating in tests of English needed for immigration purposes. Subsequent investigation revealed that many thousands of results were obtained by fraud, many of them by impersonation of the candidate at the speaking test. The gross results have been confirmed by criminal convictions of a number of those involved in running test centres.
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The Tribunal, and the High Court, have been and are concerned with challenges made by those identified as having cheated. In these cases, the result attributed to them has been identified by the testing body, ETS, as provided by a proxy or impersonator. The candidates, however, have claimed that they took the test honestly.
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In this decision we examine the evidence on which the Secretary of State relies to establish the frauds in individual cases. We conclude that despite the general challenges made, both in judicial proceedings and elsewhere, there is no good reason to conclude that the evidence does not accurately identify those who cheated. It is amply sufficient to prove the matter on the balance of probabilities, which is the correct legal standard. Although each case falls to be determined on its own individual facts and evidence, the context for any such determination is that there were thousands of fraudsters and that the appellant has been identified as one of them by a process not shown to have been generally inaccurate.
THE BACKGROUND
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Because of the evidence of widespread fraud in the test process, the Secretary of State reached the view in a large number of cases that the certificates obtained by individuals, and used in order to obtain extensions of leave, had been obtained dishonestly. The consequence has been decisions adverse to the individuals in question. In some cases existing leave has been cancelled. In other cases a subsequent application for leave to remain has been refused on the ground that previous leave was obtained by deception, that is to say by use of a TOEIC certificate obtained fraudulently.
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The Secretary of State’s evidence has developed over the course of the litigation relating to these cases, from a stumbling and insecure beginning (see Ahsan v SSHD [2017] EWCA Civ 2009; [2018] Imm AR 531 at [23] and [33]). These appeals have been remitted to this Tribunal by the Court of Appeal. They appeared to give an opportunity for an up-to- date evaluation of the state of the evidence produced by the Secretary of State in ETS/TOEIC cases. In this decision we consider the impact and effect of that evidence as a whole. We consider whether it is sufficient to call for a response by the present appellants and others in a similar position. We then determine the appeals before us on the basis of all the evidence adduced in these individual cases. We attempt to give some guidance on the approach to TOEIC/ETS appeals in general.
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The basic background facts are not in dispute. The account which follows is derived from the witness statements of Rebecca Collings and Peter Millington on behalf of the Secretary of State and the analysis of them and other evidence in some of the earlier cases, particularly R (Gazi) v SSHD [2015] UKUT 00327, [2015] Imm AR 1127; SM and Qadir v SSHD [2016] UKUT 229, R (Mehmood and Ali) v SSHD [2015] EWCA Civ 744, [2016] Imm AR 25 and R (Sood) v SSHD [2015] EWCA Civ 831, [2016] Imm AR 61. Because of the extensive setting-out of the principal evidence in those cases, particularly Gazi, we do not repeat the material here.
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In 2008 the Secretary of State decided that it would be appropriate to introduce a test of facility in the English language as part of the process for determining whether leave to enter or remain in the United Kingdom for certain purposes should be granted. Between 2008 and 2010 the requirement to show evidence of ability to speak and understand English adequately was introduced into the requirements of the rules for entry clearance for leave to remain or work in the United Kingdom under Tier 1, Tier 2 (General, Ministers of Religion and Sports Persons) and Tier 4 of the points based system, as well as for applications by partners and parents of persons settled in the United Kingdom, and applications for settlement and for British nationality. If an applicant’s country of origin was not a majority English-speaking country, and the applicant did not have, and was not studying for, a higher education qualification that was taught in English, there was a requirement to obtain a satisfactory test result from one of a number of independent testing services. One of them was ETS.
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In 2010 the Secretary of State decided that that arrangement should be replaced by one in which a small number of testing services would be licensed by the Home Office, and only tests taken with those providers would meet the requirements of the rules. Six providers were approved to work under licence, of which again ETS was one. The licences began on 6 April 2011. The licensee had the responsibility for ensuring the integrity of the test procedure. The tests were TOEIC and the test of English as a Foreign Language (TOEFL), both of which are recognised internationally. The level of competence required varied according to the immigration category under which an application was made. It may be as well to observe at this point that TOEIC is a test and ETS is a testing (or examining) service. Neither is concerned with teaching, or with any other method by which test candidates might acquire facility in English. In some cases, however, a college where English is taught may also be a test centre.
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During the currency of the licences, the Home Office investigated a number of concerns, including what were regarded as suspicious levels of certificates with top scores issued at centres run under the auspices of ETS. The Home Office received, and apparently accepted, a report from ETS that the results had been investigated and found genuine. Various other measures to reduce fraud were also proposed.
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On 6 January 2014, five weeks before the Panorama programme was broadcast, the BBC wrote to the Home Office summarising the results of an investigation into the integrity of testing at two ETS centres.
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Registered candidates standing aside from the secure computer terminals, allowing other people (“fake sitters”) with superior English language skills to take the oral and written parts of the exam on their behalf. The fake sitters were organised by the very staff who were supposed to ensure the proper conduct of the exam.
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Verification trips, intended to act as proof that the registered candidate sat the exams themselves, being falsified by staff of those centres in order to facilitate this fraud.
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Exam “invigilators” at one centre dictating the correct answers to the registered candidates in the multiple choice part of the exam.
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At the other centre multiple choice exam answer papers were filled out and submitted without the registered entrant even being present.
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The two centres that the BBC had investigated were Universal Training Centre (“UTC”) and Eden college. The programme was broadcast on 10 February 2014.
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By then ETS’s licence had already been suspended by the Secretary of State. There followed a very lengthy process in which ETS was required to examine and verify the results obtained at all colleges for which it was responsible. By the end of March 2014 ETS had identified numerous cases of impersonation and proxy testing, using voice recognition software. By the time ETS had analysed 10,000 results, it was clear that a majority of the...
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