Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/01695/2020

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On the 13 June 2022
On the 21 July 2022

Before

UPPER TRIBUNAL JUDGE O’CALLAGHAN

Between

Mr JAGTAR RAM
(ANONYMITY ORDER NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Bellara, Counsel, instructed by Waterfords Solicitors
For the Respondent: Mr T Lindsay, Senior Presenting Officer

DECISION AND REASONS
Introduction
1. The appellant is a national of India and aged 32. He appeals against a decision of the respondent to refuse him leave to remain in the United Kingdom on human rights (article 8 ECHR) grounds. The respondent’s decision is dated 13 January 2020.
2. The appellant’s appeal was initially dismissed by a decision of the First-tier Tribunal (Judges of the First-tier Tribunal Davidge and Heaven) dated 14 October 2020. The appellant was granted permission to appeal to the Upper Tribunal and by a decision dated 15 March 2021 Upper Tribunal Judge Lane set aside the First-tier Tribunal decision, directing that a de novo resumed hearing be conducted by the Upper Tribunal.
Background
3. The appellant was granted leave to enter the United Kingdom as a Tier 4 (General) Student on 19 September 2011 with leave valid until 21 January 2013. On 15 August 2012 his leave was curtailed to expire on 14 October 2012. He made an in-time application for leave to remain as a Tier 1 (Entrepreneur) Migrant on 15 September 2012 and on 20 June 2013 he was granted leave to remain until 20 June 2016. He subsequently made an in-time application to extend his leave to remain, which was refused by the respondent by a decision dated 15 March 2018. On 27 April 2018, the respondent upheld her decision following an Administrative Review consideration.
4. On 11 May 2018 the appellant applied for leave to remain in this country as a Tier 1 (Entrepreneur) Migrant. The respondent refused the application by a decision dated 9 July 2018. The appellant lodged judicial review proceedings and on 7 August 2019 he was granted permission to apply for judicial review. The respondent conceded the claim on 11 November 2019 and agreed to reconsider the application.
5. On 20 December 2019 the applicant applied for leave to remain in the United Kingdom on human rights (Article 8) grounds.
Respondent’s Decision
6. By a decision dated 13 January 2020 the respondent refused the appellant’s application, observing at [6] to [10]:
‘6. Under paragraph 276ADE(1)(i) your application falls for refusal on grounds of suitability in Section S-LTR of Appendix FM.
7. In your application dated 15 September 2012, you submitted a TOEIC certificate from Educational Testing Service (ETS).
8. 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 18 July 2012 at New College London 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 15 September 2012.
9. In fraudulently obtaining a TOEIC certificate in the manner outlined above, you willingly participated in what was clearly an organised 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.
10. 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. Your application is therefore refused under paragraph 276ADE(1)(i) of the Immigration Rules.’
7. The respondent further concluded that the appellant had not been in the United Kingdom for a sufficient time to meet the requirements of paragraph 276ADE(1)(iv) of the Immigration Rules (‘the Rules’).
8. Additionally, the respondent concluded that the appellant could not succeed under paragraph 276ADE(1)(vi) of the Rules as there would not be very significant obstacles to his integration upon return to India as he spent the first 22 years of his life in the country and during the short time he resided in the United Kingdom he had not lost his ties and connections with his home country.
ETS and TOEIC
9. This appeal is concerned with an allegation by the respondent that the appellant cheated when sitting and securing a Test of English for International Communication (‘TOEIC’) certificate offered by Educational Testing Services (‘ETS’).
10. In 2014, the respondent was made aware of an investigation by the BBC for its Panorama programme in which undercover reporters gained access to several test centres across the United Kingdom where ETS English language tests were being undertaken by people subject to immigration control who required proof of their English language skills to make an application for leave to remain. The BBC investigation revealed, using covert recording, significant fraud in the test processes.
11. It was revealed that some TOEIC tests set by ETS were not sat by the actual candidate but by ‘proxy’ test takers. The abuse included the use of ‘proxies’ to undertake speaking and listening tests on behalf of the candidates and the provision of correct answers for those sitting written tests.
12. Following the BBC investigation, ETS undertook analysis of speaking tests to identify where tests were taken by a substitute (or proxy) test taker. The analysed results have been split into 2 areas:
Invalid: where the analysis indicated that cheating in the test took place
Questionable: where analysis has not proven cheating but where concerns are deemed sufficient to withdraw the test result
13. Where a test certificate has been classed as invalid, ETS have confirmed through voice-matching analysis that cheating is likely to have taken place.

Evidence
Respondent’s evidence
14. In respect of the appellant having fraudulently obtained a TOEIC certificate, the respondent relies upon witness statements from Kelvin Hibbs, Peter Millington, Rebecca Collins and Professor French. Located at Annex A of the respondent’s supplementary bundle is relevant ETS SELT source data confirming that the appellant’s test results had been cancelled and that he fell within ‘invalid’ rather than the ‘questionable’ category.
15. Annex B of the respondent’s supplementary bundle confirms that of the sixteen tests taken on the same day as the appellant took his, 75% were declared invalid and 25% were questionable.
16. The respondent had provided both the appellant and the Tribunal with a document entitled ‘Project Façade – criminal enquiry into abuse of the TOEIC: New London College, Hounslow: Criminal Investigations (Immigration) (5 May 2015)’. The document confirms that a criminal inquiry was undertaken into New London College, and events relating to the tests taken at the premises. Between 20 March 2012 and 15 May 2013, 1,423 TOEIC speaking and writing tests were undertaken at the college of which ETS identified 1,055 to be invalid and 368 to be questionable. The percentage of invalid tests was 74%.
17. The document states:
“12. The following information, although not covering the entire testing period, is provided in support of and to corroborate the analysis completed by ETS and to show the ‘organised and widespread’ abuse of the TOEIC that took place at this test centre.
13. An ETS audit was conducted on 14/5/2015 during which cheating was observed; specifically ‘pilot’ (imposters) were seen to be taking the test on behalf of others.
14. Two invalid test takers have been interviewed under caution and admitted that a ‘pilot’ had taken the test on their behalf; as had the others that were taking the test at the same time.
15. One ‘pilot’ has been arrested and interviewed and admitted to taking tests on behalf of others.
16. Voice analysis showed evidence of widespread cheating;
the same voice was responsible for multiple tests
a male voice was heard for a female’s test
two voices could be heard within the same test
17. Documents relating to TOEIC exams were found within IT ceased from directors’ home addresses that were searched on 17/07/2014. These documents list each of the test dates for the entire testing period alongside the candidates’ names, the name of the ‘pilot’ (known in this enquiry as ‘reps’) that was to take the test on their behalf, the agent’s name and the fee paid”.
18. I take judicial notice that six men were sentenced for fraud in relation to the abuse of the test system at New London College. Vikram Kolagatla, the director of the college was sentenced to six years’ imprisonment and disqualified as a company director for nine years. Two invigilators were sentenced to five and three years respectively. Three men pleaded guilty to conspiracy to facilitate a breach of immigration law by sitting tests on behalf of others and received twelve months’ custodial sentences, suspended for twelve months.
Appellant’s evidence
19. The appellant relied upon documentary evidence filed with the Tribunal and in addition a witness statement which he signed and dated at the hearing.
20. He confirmed that whilst in India he had secured an International English Language Testing System (‘IELTS’) qualification. A copy of the document, dated 5 October 2009, was provided to me at the hearing. It confirms a speaking score of 5.5 and an overall band score 5.5. The back of the certificate confirms that Band 5 identifies the certificate holder as being a Modest User:
‘has partial command of the language, coping with overall meaning in most situations, though is likely to make many mistakes. Should be able to handle basic communication in own field.’
21. The appellant confirmed that he did not secure a diploma or a degree in the English language whilst living in India, but his schooling was conducted in the English language up to the ‘twelfth standard’, which I was informed, and am content to accept, is equivalent to A levels in the United Kingdom.
22. He explained that he had paid £4,500 to enrol on his course in the United Kingdom and had secured entry clearance based upon his IELTS qualification. He informed Mr. Bellara that when he applied for his Tier 1 (Entrepreneur) Migrant leave he produced various documents in addition to his English language test result, including business documents, bank statements and documents from his accountant.
23. He confirmed that he is a director of a company whose business is concerned with the wholesale provision of nuts, snacks and confectionary. He is primarily tasked with looking after the production area and the warehouse department. He informed Mr. Bellara that he speaks to staff on a day-to-day basis in the English language in respect of health and safety and as to how to manage the goods on the premises.
24. The appellant stated that he could remember taking the test at New College London. He recalls some fifteen to twenty students attending the test centre with him in addition to two examiners being present. He recalled that upon being informed by the respondent that he was alleged to have cheated he was very upset, and his life stopped. The allegation has affected his personal life.
25. In answer to questions from Mr Lindsay the appellant confirmed that the test centre was situated in Staines Road, Hounslow which was some twenty minutes by bus from his home. He chose the test centre because it was close to where he resided. He had looked at other test centres in Ruislip and elsewhere in London, but they could not offer the dates that he required. He attended the test centre on two occasions. The first day required him to be tested in listening and reading and took around two hours. On the second day he was present for approximately one and a half hours whilst undertaking the speaking and writing tests. He informed Mr. Lindsay that he could not identify whether the same people attended the test centre on both days because he was concentrating on his test.
26. When asked why he had not contacted ETS for a copy of the test tape he replied that he had not been aware that he could and should do that.
27. He refuted Mr Lindsay’s assertion that he had enjoyed plenty of time to make up a story about how he took the test and was clear in his evidence that he did not cheat. He relied upon his English language skills having ‘always been good’ since his arrival in the United Kingdom. He denied seeing any fraud taking place on his two visits to New London College.
Submissions
28. On behalf of the respondent Mr Lindsay relied upon the contents of the respondent’s bundle and the supplementary bundle containing relevant ETS evidence. Reliance was placed upon the decision of the Presidential panel in DK and RK (ETS: SSHD evidence; proof) India [2022] UKUT 00112 (IAC), (also known as DK and RK (2)) at [13]:
‘13. 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 results had been obtained by fraud. These results were declared “invalid”, on the evidence that the voice identified as having provided the answers to oral tests was a voice that had provided answers to another person’s oral tests. ETS regarded the evidence of proxy test-taking or impersonation in those cases as “certain”. The verification techniques developed during the course of the process, and included both preliminary matching by voice recognition software and then human verification. At one stage the software had identified 33,000 fraudulent results: over 80% of them were then verified as positive by individual human analysis.’
29. Mr. Lindsay detailed the respondent’s position that the Project Façade document confirms with absolute clarity that New London College was operating as a ‘fraud factory’. He further noted that one of the unsuccessful appellants in DK and RK (2) had test results from New London College, at [19]:
‘19. RK is also a national of India. ... On 20 April 2016 she applied for further leave as a spouse. In considering her application the Secretary of State noted that in a previous application, dated 1 June 2012, she had submitted a TOEIC certificate from New London College (“NLC”) reflecting scores from a test taken there on 19 May 2012. That certificate had subsequently been cancelled as invalid by ETS. …'
30. Reliance was placed upon [67] of the decision in DK and RK:
“67. The evidence showing fraudulent activity in a number of ETS centres (including UTC and NLC) is overwhelming. It is clear beyond a doubt that these were institutions for the manufacture of fraudulent qualifications. This conclusion does not show that any individual certificate was obtained fraudulently. But it has an important part in the evaluation of the evidence as a whole, in that it provides the context.’
31. Mr. Lindsay accepted on behalf of the respondent that the fact that there was very widespread fraud going on at the test centre run by New London College is not determinative of the appeal. However, he submitted that the evidence as to fraud in this matter is overwhelming. He placed importance upon there being no serious effort on the part of the appellant to try to secure a tape of his speaking test conducted on 15 March 2018 even when he was made aware of the respondent’s position as to fraud. Nor did the appellant approach ETS to address his denial of having acted in the manner asserted. Mr Lindsay submitted that the appellant did not chase for the tape because he knew he had cheated. This was said to be a plain case where the appellant had used deception.
32. Mr. Bellara accepted that the respondent had a strong prima facie case, and further accepted that this was to be considered a highly probable case of deception. However, the appellant’s position is that he possessed a mastery of the English language from his schooling in India, as evidenced by the IELTS results, and consequently his English language skills were significant when he arrived in this country. Mr. Bellara asked me to observe the obvious skill in the English language exhibited by the appellant at the hearing.
33. Mr. Bellara stated that the appellant has been consistent in his account as to his attendance at the test centre from the date of his first interview in 2016 and weight should be attached to his consistent recollection of events.
34. The appellant’s case is that if no deception had been exercised, he should win his appeal. It was accepted by Mr. Bellara, as it must be, that if deception was exercised then no exceptional circumstances arose in this matter.
35. Mr. Bellara confirmed that he did not have instructions to withdraw the article 8 ECHR private life appeal based upon paragraph 276ADE(1) of the Rules but did not pursue it with any vigour.
Analysis
36. The first issue for my consideration is that of the allegation of fraud made by the respondent in respect of the TOEIC certificate obtained by the appellant from New London College in July 2012. The burden of proof in respect of the allegation of fraud rests upon the respondent who is required to establish that it is more likely than not that the appellant used deception in a previous application, identified in this matter as the application made for further leave to remain on 15 September 2012. Following the decision of DK and RK (2) a self-direction in those terms will suffice, and there is no need to refer to the burden moving between the parties in the manner of a boomerang. Nothing turns on this first issue as the appellant accepts that the respondent’s generic evidence plus the Look Up tool suffices to discharge any initial burden. As Mr. Bellara appropriately observed in his submissions the respondent has a strong prima facie case as to deception.
37. I am entitled to observe that the appellant secured an IELTS certificate in 2009 and it was not disputed by Mr. Lindsay that the appellant had been taught in the English language up to the equivalent of A level. I observe that the appellant gave evidence in the English language and appeared to me to be proficient when doing so. However, the weight which can be given to that fact is extremely limited, on account of the passage of time since the disputed test in July 2012 and the fact that there might be any number of reasons why a person who can speak English would have chosen to use a proxy: MA (ETS - TOEIC testing) [2016] UKUT 450(IAC) [2016] UKUT 450 (IAC), at [57].
38. Turning to the background of the ETS scandal, I observe that the BBC Panorama programme revealed in 2014, through the use of covert camera footage, that proxies were taking English language tests for individuals at two identified test centres. The methodology by which ETS subsequently detected the presence of a proxy taker at tests is described in the witness statements made by Rebecca Collins and Peter Millington. Such evidence has been considered on countless occasions in appeals over the last decade or so. I simply observe that ETS used computerised voice recognition technology in the first instance and then analysed the recordings of each test using this equipment. Where technology detected the same voice on two or more recordings, those recordings were considered independently by two analysts. In circumstances where the analysts agreed that the voice in the recording was the same, ETS would then invalidate the test result.
39. I turn to the main conclusions of the Presidential panel in DK and RK (2):
‘78. The analysis was undertaken within ETS: the organisation already had in place a number of techniques designed to detect fraud, including fraud perpetrated by substitution of test sitters, but (as has been pointed out by Professor Sommer) not particularly focussed on the possibility of deception by, or encouraged by, the testing centre.
79. On voice recognition, what the evidence amounts to is as follows. The recordings on which the test certificates were based were subject to voice recognition analysis. The analysis was undertaken in the first instance by an automated comparison, in preparation for which the original recordings were recoded from .ogg to .wav, and then from .wav to .spx. The purpose was to identify instances of the same voice appearing in more than one test entry. Where a match was identified, the data was subject to further analysis by human listeners. A conservative approach to declarations of invalidity was adopted, in that it was only if all the analysis pointed to the appearance of a voice attributed to more than one candidate that the score was marked “invalid”.
80. Nevertheless, there is a possibility of erroneously reaching that conclusion. The opinion of Dr Harrison, an expert in audio and speech analysis, was that the initial triage by the automatic process, and the subsequent use of human checkers, was the only reasonable way in which the process could be carried out, given the quantity of recordings involved. He looked carefully at the process and estimated that there might be a ‘false positive’ rate of 1%. That is, in that proportion of cases the techniques used might provide an incorrect basis for a marking of ‘invalid’: this would be the error rate, not of the entire process, but of this final part of it. He thought that there would be substantially more false rejections. The figure of 1% was produced by comparison with a pilot exercise undertaken by ETS as part of a training and development process: even if the results of that exercise were not comparable, he would still estimate the number of false positives emanating from the ETS assessment process as ‘very small’. Dr French thought the error rate of positives might be higher, perhaps 3%, but (as we understand his evidence) that figure was based on the absence of information he would have liked to see rather than strictly on the information that was available.’
40. The Upper Tribunal then undertook an analysis of all the evidence, concluding that:
“103. The voice recognition results show that many test entries are in a voice recognisable as having provided another entry for a different candidate. In other words, at a gross level, the voice recognition results amply confirm the evidence obtained from eyewitnesses of the testing process. This is obviously no surprise. Looked at the other way round, the voice recognition results obtain some confirmation from the eyewitness evidence. In fact, the truth of the matter is that although those who have their own process for voice recognition examination (such as Professor French) can suggest other ways in which this examination of the data could have been made, there is no reason to suppose that the voice recognition process was substantially defective. There may be a false positive rate of one percent, or even possibly three percent, but there is no proper basis for saying that the false positive rate was or would be any higher than that. (There would also be a substantial false negative rate, but that does not fall for consideration here: we are not concerned with people who should have been caught as cheating, but were not.) ETS would have no known motive for exaggerating the level of the fraud on their system, and a reputational motive for confining the declared fraud to that clearly demonstrated by the data. We conclude that the voice recognition process is clearly and overwhelmingly reliable in pointing to an individual test entry as the product of a repeated voice. By ‘overwhelmingly reliable’ we do not mean conclusive, but in general there is no good reason to doubt the result of the analysis.
...
105. Clearly, if there were no general reason to link particular candidates’ input with particular test recordings, that would be a powerful criticism. The circumstances were not, however, that there was any prospect of carelessness or randomness being associated with the continuity of records, either at the point where they were labelled by the test centre or after their transmission to ETS for marking. At the first stage, it is clear from the other evidence that certain test centres were providing a fraudulent service to fraudulent candidates who paid for it. There is no reason at all to suppose that they would be other than extremely careful to ensure that the fraudulent entries were indeed credited to the fraudulent candidates. The suggestion of any general mix-up at this stage runs counter to the ordinary experience of the provision of a service”.
41. The Upper Tribunal expressed the following general conclusions:
“127. Where the evidence derived from ETS points to a particular test result having been obtained by the input of a person who had undertaken other tests, and if that evidence is uncontradicted by credible evidence, unexplained, and not the subject of any material undermining its effect in the individual case, it is in our judgment amply sufficient to prove that fact on the balance of probabilities.
128. In using the phrase ‘amply sufficient’ we differ from the conclusion of this Tribunal on different evidence, explored in a less detailed way, in SM and Qadir v. SSHD. We do not consider that the evidential burden on the respondent in these cases was discharged by only a narrow margin. It is clear beyond a peradventure that the appellants had a case to answer”.
42. Returning to this appeal, the Look Up tool establishes that the appellant’s speaking and writing scores were deemed to be invalid by ETS. The evidence confirms that 75% of the tests undertaken on 18 July 2012 were found to be invalid and 25% were considered questionable. Further, the Project Façade document confirms that within the fourteen months running from March 2012 to May 2013, during which time the appellant took his tests, 74% of the 1,423 TOEIC speaking and writing tests were considered invalid and the rest questionable. Not a single test was identified as establishing no evidence of invalidity and so not withdrawn. I again note the criminal convictions arising from the police investigation into New London College.
43. I do not lose sight of the fact that the appellant contests the allegation of fraud and has done so since at least 2016. He explained with care his personal circumstances, both as to attending the test centre, taking the required tests and the subsequent impact the allegation of fraud has had upon him. I have considered his evidence with care. The high point of his case, as accepted by Mr. Bellara, is that he came to the United Kingdom having studied the English language until twelfth standard in India and having secured his IELTS certificate in 2009. However, the IELTS certificate relied upon simply confirms that prior to his arrival in the United Kingdom in September 2011 his level of English was modest and not of the high standard he has sought to subsequently assert. It is not his case that he undertook further study of the English language, such as by means of diploma studies, from the date he secured his IELTS certificate to his arrival in this country in September 2011. Consequently, on his arrival in this country some 10 months prior to his attendance at New London College’ test centre, his command of the English language was no higher than ‘partial command’, being able to cope with overall meaning in most situations, though ‘likely to make many mistakes’. Whilst there may have been an improvement during the ten months in this country, I note that there may be many reasons as to why somebody with a reasonable command of the English language might use a proxy taker, for example fear of the adverse impact of failure, or a concern as to failure consequent to nerves.
44. The evidence relating to New London College is significant in that it establishes that there was a high level of fraud, and criminality, being exercised at its test centre. Even accepting that the appellant may have improved his command of the English language in the short time he was present in this country, I am satisfied that on the day in question, the 18 July 2012, the entirety of the test centre was devoted to fraudulent testing.
45. I find on the balance of probabilities that the respondent has established that the appellant used a fraudulently obtained TOEIC certificate in support of his September 2012 application and so exercised deception in his application for leave to remain in this country.
46. In the circumstances, having found that the appellant used deception in his September 2012 application, the respondent was undoubtedly entitled to refuse the appellant’s subsequent application for leave to remain under the Rules. There was no reason for the respondent to exercise discretion in the appellant’s favour.
47. On behalf of the appellant Mr Bellara accepted that if I found that deception was used in this matter, the article 8 appeal would have significant, if not terminal, difficulties. He was correct to so observe. The appellant has been able to reside in this country for most of what is approaching nine years due to having used deception in his engagement with the respondent. The appellant is therefore unable to meet the requirements of paragraph 276ADE(1)(i)–(v) of the Rules. As to paragraph 276ADE(1)(vi) I find that the appellant would not encounter very significant obstacles in his reintegration in life and society in India. He resided in that country until his early 20s, studied in that country, and does not claim to have lost touch with the country. He is able to speak local languages. He has an ability to quickly engage in life upon return, to secure employment and establish a network of friends and colleagues.
48. In the circumstances the human rights (article 8) appeal is dismissed.

Notice of Decision
49. The decision of the First-tier Tribunal dated 14 October 2020 was set aside.
50. I re-make the decision. The appellant’s appeal is dismissed.

Signed: D O’Callaghan
Upper Tribunal Judge O’Callaghan

Date: 30 June 2022

TO THE RESPONDENT
FEE AWARD

A fee of £140 was paid. As the appellant’s appeal has been dismissed no fee award is made.

Signed: D O’Callaghan
Upper Tribunal Judge O’Callaghan

Date: 30 June 2022