HU/13631/2019
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The decision
,
IAC-FH-CK-V3
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/13631/2019
THE IMMIGRATION ACTS
Heard at Field House
Decision & Reasons Promulgated
On the 26 May 2022
On the 21 July 2022
Before
UPPER TRIBUNAL JUDGE ALLEN
Between
Vijay Kumar
(anonymity direction NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr J Gajjar, instructed by Watlington Solicitors
For the Respondent: Ms A Ahmed, Senior Home Office Presenting Officer
DECISION AND REASONS
1. The appellant appealed to the First-tier Tribunal against Tribunal’s decision of 24 July 2019 refusing his human rights application. Following a hearing on 7 January 2020 the First-tier Tribunal Judge who heard the appeal dismissed it. The appellant was subsequently granted permission to appeal and at a hearing on 4 November 2020 Upper Tribunal Judge Rintoul found that the judge had materially erred in law in failing to take account of the appellant’s innocent explanation as to why his score in the speaking part of an English language test was so high. Judge Rintoul preserved the First-tier Judge’s findings as to the appellant’s lack of proficiency in English, these not having been challenged by the appellant. At paragraph 21 of his decision the judge said that during the relatively short hearing the appellant demonstrated very grave difficulties in understanding what appeared to be simple questions from both advocates. Both advocates were required to repeat questions and the appellant was also required to repeat answers on a number of occasions. It was said that he was difficult to understand and also appeared to fail to comprehend what he was being asked on several occasions. It was clear that his witness statement was not in his own words.
2. Judge Rintoul also preserved the findings at paragraph 18 of the judge’s decision in which the judge observed that the appellant was a man of good character with no criminal convictions and, save for the present allegation, an untarnished history in terms of how he had engaged with immigration services in the United Kingdom. He had sought to remain in the United Kingdom via lawful methods and was clearly hard-working and educated. Before coming to the United Kingdom he had studied in Hindi and English and in the UK had completed level 5 education and a graduate diploma in business management in June 2014. The judge noted that although the appellant passed seven of the subjects, many of them were modest or marginal passes. He had failed a number of other subjects. He had later passed a Masters degree at the Anglia Ruskin University in marketing and innovation, in December 2014. In other words, as the judge put it, there was evidence outside of the TOEIC test that the appellant had English skills.
3. The brief immigration history of the appellant is as follows. He entered the United Kingdom on 22 October 2009 with entry clearance and leave as a student and that was extended on several occasions, materially to this case on 18 July 2012 where his application was allowed on appeal but in part in reliance on a TOEIC certificate obtained in or around July 2012. In late October 2014 the appellant was served with an IS.151A removal notice alleging that he had used deception in obtaining the TOEIC certificate. He scored 200 out of 200 on the speaking test which he took at Premium Language Training Centre on 20 June 2012 and 180 out of 200 for the writing test. He obtained a pass grade following an assessment on 2 July 2012 for his listening and reading test.
4. The appellant gave evidence, adopting his two witness statements as being truthful and said that he was happy for them to be taken as his evidence. He was asked in the examination-in-chief about the hearing before the First-tier Tribunal Judge and whether his standard of English had been high at the hearing and he said he had been hesitant and nervous, so he could not give a good performance.
5. When cross-examined the appellant was asked how much his standard of English had progressed since the test ten years previously. He said he had been studying in 2014 and lived in his culture from that time, so there was not that much need to speak English. He was not very good in English but good enough to communicate and speak in English. As regards the test scores and whether they were high he said yes but it was not his fault and he did not have that level. He could speak and pass the test himself.
6. He was referred to paragraph 15 of his first witness statement, which referred to the fact that he did not have much time to take the test as he had to get the result and be admitted to his new college before July 2012 and he had found that he would not meet that tight timetable if he chose the IELTS test. He was asked whether that was why it was easier to get someone else to the test and he said no, he did it himself. He agreed that his leave was about to expire in July. He was asked whether the classmate who had told him about the ETS test had told him about the Premium Language Training Centre and he said no, he did it himself and it was near his house and he had booked it himself. He was asked what his classmate had told him about ETS and he said that it was that you could do it and you could do the IELTS and that his application was running out and he did not have much time, he should do the ETS test and it was popular at the time and easier. His classmate’s name was Tariq. Tariq had not taken the test at Premium Language Training Centre. He did not have contact with Tariq now. It had been some years ago.
7. He was asked whether after telling him about ETS Tariq had given him any information about booking the test and he said no. He was asked about what he said at paragraph 16 of the first interview that he had booked the test in person at the centre. He had checked online for the nearest test centre for ETS and came to know that Premium Language Training Centre was ten or fifteen minutes by car away from his residence at the time. He said that he had gone online to see what the availability was for booking and also at Premium. This was on the Premium website. He agreed that there was a telephone number for the test centre on the website and there was an option to book online. He had been alone when he was looking at it online. It was put to him that he could have booked the test online or by calling the number and he said that it was near to his house. He agreed that he had never been there and a telephone number was on the website and the option to book online existed but he had not called the telephone number or booked online but had gone in and booked in person. No-one had told him to book in person. He was asked whether he had chosen the 10 o’clock time schedule for the test and said no, they gave it to him. He knew that there were other time slots to book on that day but it was near home and it was good to do it early. There had been other slots available on that day but he did not remember how many.
8. When he went to do the test on 20 June 2012 there were, he thought, fifteen to twenty other people taking the test at the centre though he was not sure of the number. He had described the test that he had sat. He had read up on the ETS test details when he made his statement. He had tried to obtain the voice recording, having emailed ETS, and was told the cancellation score.
9. He was referred to the document at page 6 of the supplementary bundle and said it had come from India. His name was on the letter provided, though not on the document at page 6 but it was in the document: To whom it may concern at page 8.
10. The appellant said that he spoke Hindi and Punjabi. He had family in India, his parents, brother and sister. He had last spoken with them yesterday. He had work experience in India between 2004 and 2007 when he had worked as a sales assistant and had worked in marketing in the United Kingdom.
11. There was no re-examination.
12. The next witness was Mr Rashan Lal. He had provided the To whom it may concern letter at page 11 of the supplementary bundle. He gave his name and address and said he was self-employed and ran a company, Alpha Telecommunications Ltd. He said that the letter that he had provided was true to the best of his knowledge and he was happy for it to be taken as his examination-in-chief.
13. When cross-examined it was put to him that the letter could not show that the appellant did not cheat in 2012 and he said he had worked with him in 2011 and 2012 and he was very happy with his service and he believed he was honest. He was asked about the clients’ nationality as referred to in the letter and whether there were no English clients and he said there were English clients as well and he had been dealing with telecommunications companies.
14. There was no re-examination.
15. In her submissions Ms Ahmed relied on the refusal letter and the Home Office bundle. It was agreed that the Secretary of State had discharged the initial burden on her and the burden was therefore on the appellant to provide an innocent explanation. It was argued that he had not rebutted the evidence against him. Ms Ahmed referred to the decision of the Upper Tribunal in DK and RK [2022] UKUT 00112 (IAC). The appellant had sat the ETS test at a time when there was widespread cheating. He had sat it at a centre that was subject to a criminal inquiry. It could be seen from the report that within the period of 20 March 2012 to 5 February 2014 Premium undertook some 5,000 TOEIC tests and 3,780 were invalid and 1,275 were questionable and there were zero cases where there was no adverse evidence of validity. Reference was made to page 6 of the ETS bundle and the result for 20 June 2012 which showed that zero were released and 89% of 203 tests were invalidated and 11% were questionable.
16. Ms Ahmed referred to what had been said at paragraphs 73, 75, 103, 118 and 128 in DK and RK. The effect of this was that there was no smoke without fire. As regards the innocent explanation, she referred to MA [2016], which said that where there was clear and reliable evidence of deception it needed cogent evidence. It was necessary to scrutinise the appellant’s credibility. Issues such as response time and hesitation were relevant as referred at paragraphs 54 and 55.
17. His leave had been due to expire on 20 July 2012, so he had had little time and within the time available could not do the IELTS test. He had been told about Premium by a classmate who had done the examination at the same time as him, which raised alarm bells. The appellant’s evidence was that after the recommendation he looked online and found the Premium website and telephone number and booking option on the website. He had never been there before. It was argued that it was unlikely that with that on the website he had not even called them but got on a bus and went to the test centre and booked in person. This raised suspicion.
18. It seemed from page 6 of the ETS bundle that there were 227 tests on that day. The appellant said that at the time of the test there were fifteen to twenty people there. His scores were rather high. The evidence today was that his English was acceptable but the question was whether he had shown that ten years ago he would achieve those marks.
19. The document at page 6 of the supplementary bundle was doubtful and the guidance in Tanveer Ahmed was relevant. The appellant’s name was not on it and it was just a photograph. The page 8 letterhead was relevant and it was raised as page 6 was not reliable and it opened the door to questions as to why the appellant had adduced this and it should be found that he had not discharged the burden. The Secretary of State had shown he had cheated. As regards Article 8 he had not shown very significant obstacles to re-integration into India, bearing in mind that he had family there and was in contact with them and was resourceful and educated and had had jobs. Reliance was placed on section 117B(1) and (4) of the 2002 Act. The appeal should be dismissed.
20. In his submissions Mr Gajjar argued that the central issue was whether it was found the Secretary of State had shown that the appellant had used a proxy. The initial burden had been discharged. DK and RK did little more than the earlier decisions. It was argued that issue could properly be taken with the way in which the case had been presented. Although Ms Ahmed had provided numbers as to the number of tests taken including invalidity and questionable test results, this was unacceptably incomplete as the Tribunal had not been told how many of those later came before judges and were exonerated. It did not show that none of the 4,000 to 5,000 cases were exonerated as no figures were given and therefore it was inappropriately selective and prejudicial. Keeping that in mind, it was necessary to present an innocent explanation. The threshold was low.
21. There was the difficulty of the preserved finding by the judge that the appellant’s English was not at a standard that would lead to the 200 out of 200 threshold being crossed. That should be considered very carefully. It was not supported by today’s evidence. It had to be seen as a caveat as the appellant said he was nervous when he gave his evidence to the First-tier Judge. Ms Ahmed had referred to MA in this context, but it was a difficulty for the Secretary of State as the appellant’s evidence today had not been given with hesitation and the cross-examination had been very quick and he had shown no delay in responding or that he was struggling to engage. He had shown a clear and strong understanding and only a few questions had needed to be repeated. It should not be assumed that between 2012 and 2022 his English would have improved as he had confirmed that after his leave was curtailed he had largely remained in his own community, which, it could be inferred, consisted of Hindi and Punjabi speakers. In the context of that community, as the appellant said, the need to speak English was limited, so his command of English was likely to have diminished. Such might be the case for example for a person who had studied French GCSE but subsequently not spoken it over the next ten years. It was necessary therefore to consider the quality of his English today and his overall engagement with the English language. Before coming to the United Kingdom he had studied in English and Punjabi and was interviewed by the Tier 4 sponsor, who had stringent responsibilities and who had been satisfied that his English was sufficient to sponsor him. He had come to the United Kingdom and been questioned on arrival and allowed on his way whereas routinely people were turned away if they showed poor English. He had done the ETS test since coming to the United Kingdom and passed a diploma and had a Masters degree and all must have required ability to engage with the English language.
22. The adverse factors argued on behalf of the Secretary of State were immaterial. Booking in person was a red herring and it was no more likely that he would have cheated than if he had booked online. Also, the document at page 6 could be seen from the information at page 8 to refer sufficiently clearly to the appellant. The photograph also bore a strong resemblance to him and was beneath the various stamps on the page, so there was no discrepancy.
23. The score of 200 out of 200 was, as the appellant said, not his fault. It could not safely be said what the quality of his English was at the time of the test in comparison to how it was before the judge. The comparisons were inherently dangerous. It could be that he spoke no English in 2012. This demonstrated the difficulties of comparison between 2012 and the present day.
24. He had said in the first statement why he did the test as he had little time before his leave expired, so he could not go to IELTS and that was in his favour as he had not been set on going to ETS. He had explained why he chose that test centre and how he prepared for the test. Refreshing his memory was not to his discredit. The absence of his classmate Tariq was not adverse. People did drift apart as the appellant said and that was after the end of the studies. The Secretary of State had indicated that Tariq could have cheated but even if that was so, it did not mean the appellant did and there was no evidence that Tariq had cheated in any event and this was speculation.
25. Ms Ahmed relied on what was said in DK and RK and the point that there was no smoke without fire and that was true but one had to consider who had lit the fire. Unless it was lit by the appellant with a proxy there was no reason to dismiss the appeal. Innocent people had been drawn into this litigation and it could not be concluded that the appellant had cheated. It could not be right that some 5,000 people had all wanted to cheat and it was not unique to the college in question. It was said in the Project Façade Report that it was rare that people were released and yes, there were adverse findings but there was the oral evidence today and the appellant’s ability to speak English. As was held in Shen, there was a duty on the Secretary of State to rebut the innocent explanation and that had not been done.
26. If the Tribunal agreed with the above submissions, then, the appellant’s leave having been curtailed, as regards the deception finding, that could not stand and there had been historic injustice as held in Khan at paragraph 37. The appellant should be put back in the position he was in with no breach in his leave. It was also relevant to bear in mind the evidence of Mr Lal, who could not confirm whether the appellant had cheated or not but spoke of his character as being trustworthy with the customers and his ability in English and page 11 of the supplementary bundle showed that the appellant had spoken with people from various nationalities and in English. The appeal should be allowed.
27. I reserved my decision.
28. In a case such as this where dishonesty has been alleged, the burden is on the Secretary of State to establish the dishonesty. As was said in Shen [2014] UKUT 236 (IAC), if an innocent explanation is offered by the appellant, the burden switches back to the Secretary of State to answer that evidence.
29. The innocent explanation proffered by the appellant is in part the information provided in his first witness statement, in which he said that he had relatively little time to take an English language test as his visa was curtailed on 21 May 2012 with an expiry date of 20 July of that year. There was not sufficient time to do an IELTS test, so he was told by a classmate about the ETS test and booked it in person at Premium Language Training Centre, having checked online for the nearest test centre, found it was ten to fifteen minutes away from his home, so he went to the test centre and paid for the test.
30. He then described how he had prepared for the test and arriving at the test centre on 20 June 2012 and how he travelled there, the location of the centre, the set-up of the building there and the kind of matters that were examined in the course of the spoken and written tests. He also described going back to the test centre on 2 July 2012 for the listening and reading tests. Again, he described the details of the tests. He said that he had passed the test genuinely by his own effort and did not use deception in the test and that the test provider institution duly recorded his test. Thereafter, what happened was between ETS and the institution and he was not responsible for the irregularity.
31. As was noted by Judge Rintoul in the error of law decision, the innocent explanation was that, following evidence heard by the APPG and a report of the National Audit Office, the evidence relied upon by the Secretary of State is not reliable and in particular the allegation is that there are difficulties with the chain of custody of the individual test results. It is said that this is an explanation of why the appellant apparently received a score of 200 out of 200 on the speaking test, the explanation being that such a score was clearly wrong in light of the fact that his English was clearly not of that standard at the hearing some seven years later.
32. Following the detailed examination of the evidence in DK and RK, the Tribunal concluded at paragraph 119 that it is overwhelmingly likely that those to whom the proxy results are now attributed are those who took their tests by that method. The Tribunal went on to refer at paragraph 126 to the virtual exclusion of suspicion of relevant error by ETS and the virtual exclusion of motive or opportunity for anybody to arrange for proxy entries to be submitted except the test centres and the candidates working in collusion. The Tribunal went on to say at paragraph 127 that 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 amply sufficient to prove that fact on the balance of probabilities. (It is relevant to recall the figures, set out at paragraph 15 above, showing the number of tests at Premium in the relevant period and, in particular, on June 20th, 2012, the day on which the appellant claims to have sat his tests). As the Upper Tribunal said at paragraph 129 of DK and RK, mere assertions of ignorance or honesty by those whose results are identified as obtained by a proxy are very unlikely to prevent the Secretary of State from showing that on the balance of probabilities the story shown by the documents is the true one. It is said that this will be and remain not merely the probable fact but the highly probable fact.
33. From the evidence provided in the respondent’s supplementary bundle it can be seen from the witness statement of Seela Sreeraman of 2 January 2020 that the test result in this case was cancelled by ETS on the basis of its own analysis which indicated that the test result had been obtained via the use of a proxy tester. The scores can be found at Annex A1, the 200 out of 200 for speaking and 180 out of 200 for writing and at Annex A2 it can be seen that the test centre on 20 June 2012 when the appellant did the test a total of 227 tests were taken, zero were released, 24 were questionable and 203 were invalid.
34. The Upper Tribunal in DK and RK, having considered the evidence and the relevant issues comprehensively, came to the conclusions set out above and the effect of that is, particularly bearing in mind the absence of any evidence to the contrary, that only if there is credible evidence which undermines the effect of the ETS evidence in the individual case can it be said that the result on the balance of probabilities has not been shown to have been obtained dishonestly.
35. Into the balance must be placed the detail given by the appellant of the circumstances in which he sat the test. Against it is the fact of his poor English as noted by the judge in the preserved finding. I bear in mind what was said by Mr Gajjar in this regard, and can accept to an extent that the preserved finding has to be seen in the context of any other evidence of the appellant’s English language proficiency. He did better at the hearing before me than he seems to have done before the judge two years earlier, but there were occasions when questions had to be repeated and he was at times difficult to understand. I bear in mind the evidence provided concerning both his character and his language skills from Mr Lal in assessing this point also. But it remains the case that the score of 200 out of 200 and to a lesser extent the score of 180 out of 200 are significantly at variance with the poor quality of his English as in particular demonstrated to the judge. Though it may be that has for some years spent most of his time in his own community, he has nevertheless been living in the United Kingdom and it would be surprising if he had not had to communicate relatively regularly in English during that time. The score attributed to him under both headings is significantly at variance with the English language skills that he has demonstrated, and it is relevant to bear in mind that at a hearing some seven years after he took the test the judge found his English to be poor.
36. I do not hold against the appellant as adverse the fact that he chose to go to the particular centre in the circumstances in which he said he did. There is no reason to doubt the credibility of his contention that he was advised about the centre by a classmate, although it is perhaps somewhat surprising that he did not choose to book online or to ring the college up, the simple fact of going to the college and booking the test and making a payment at that time is not suspicious but of course we know nothing about what knowledge he had of this centre and its reputation other than what he says in the witness statement. It is also relevant to bear in mind in relation to the appellant’s motivation the point made by Ms Ahmed that the appellant had little time in which to arrange for a test, as his leave was due to expire on 20 July 2012.
37. Bringing these matters together, I do not consider that it has been shown that an innocent explanation has been provided by the appellant such as to discharge the evidential burden in that respect. The Secretary of State has discharged the burden of proof on her. As a consequence, the appeal is dismissed.
Notice of Decision
The appeal is dismissed.
No anonymity direction is made.
Signed Date 8 July 2022
Upper Tribunal Judge Allen
IAC-FH-CK-V3
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/13631/2019
THE IMMIGRATION ACTS
Heard at Field House
Decision & Reasons Promulgated
On the 26 May 2022
On the 21 July 2022
Before
UPPER TRIBUNAL JUDGE ALLEN
Between
Vijay Kumar
(anonymity direction NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr J Gajjar, instructed by Watlington Solicitors
For the Respondent: Ms A Ahmed, Senior Home Office Presenting Officer
DECISION AND REASONS
1. The appellant appealed to the First-tier Tribunal against Tribunal’s decision of 24 July 2019 refusing his human rights application. Following a hearing on 7 January 2020 the First-tier Tribunal Judge who heard the appeal dismissed it. The appellant was subsequently granted permission to appeal and at a hearing on 4 November 2020 Upper Tribunal Judge Rintoul found that the judge had materially erred in law in failing to take account of the appellant’s innocent explanation as to why his score in the speaking part of an English language test was so high. Judge Rintoul preserved the First-tier Judge’s findings as to the appellant’s lack of proficiency in English, these not having been challenged by the appellant. At paragraph 21 of his decision the judge said that during the relatively short hearing the appellant demonstrated very grave difficulties in understanding what appeared to be simple questions from both advocates. Both advocates were required to repeat questions and the appellant was also required to repeat answers on a number of occasions. It was said that he was difficult to understand and also appeared to fail to comprehend what he was being asked on several occasions. It was clear that his witness statement was not in his own words.
2. Judge Rintoul also preserved the findings at paragraph 18 of the judge’s decision in which the judge observed that the appellant was a man of good character with no criminal convictions and, save for the present allegation, an untarnished history in terms of how he had engaged with immigration services in the United Kingdom. He had sought to remain in the United Kingdom via lawful methods and was clearly hard-working and educated. Before coming to the United Kingdom he had studied in Hindi and English and in the UK had completed level 5 education and a graduate diploma in business management in June 2014. The judge noted that although the appellant passed seven of the subjects, many of them were modest or marginal passes. He had failed a number of other subjects. He had later passed a Masters degree at the Anglia Ruskin University in marketing and innovation, in December 2014. In other words, as the judge put it, there was evidence outside of the TOEIC test that the appellant had English skills.
3. The brief immigration history of the appellant is as follows. He entered the United Kingdom on 22 October 2009 with entry clearance and leave as a student and that was extended on several occasions, materially to this case on 18 July 2012 where his application was allowed on appeal but in part in reliance on a TOEIC certificate obtained in or around July 2012. In late October 2014 the appellant was served with an IS.151A removal notice alleging that he had used deception in obtaining the TOEIC certificate. He scored 200 out of 200 on the speaking test which he took at Premium Language Training Centre on 20 June 2012 and 180 out of 200 for the writing test. He obtained a pass grade following an assessment on 2 July 2012 for his listening and reading test.
4. The appellant gave evidence, adopting his two witness statements as being truthful and said that he was happy for them to be taken as his evidence. He was asked in the examination-in-chief about the hearing before the First-tier Tribunal Judge and whether his standard of English had been high at the hearing and he said he had been hesitant and nervous, so he could not give a good performance.
5. When cross-examined the appellant was asked how much his standard of English had progressed since the test ten years previously. He said he had been studying in 2014 and lived in his culture from that time, so there was not that much need to speak English. He was not very good in English but good enough to communicate and speak in English. As regards the test scores and whether they were high he said yes but it was not his fault and he did not have that level. He could speak and pass the test himself.
6. He was referred to paragraph 15 of his first witness statement, which referred to the fact that he did not have much time to take the test as he had to get the result and be admitted to his new college before July 2012 and he had found that he would not meet that tight timetable if he chose the IELTS test. He was asked whether that was why it was easier to get someone else to the test and he said no, he did it himself. He agreed that his leave was about to expire in July. He was asked whether the classmate who had told him about the ETS test had told him about the Premium Language Training Centre and he said no, he did it himself and it was near his house and he had booked it himself. He was asked what his classmate had told him about ETS and he said that it was that you could do it and you could do the IELTS and that his application was running out and he did not have much time, he should do the ETS test and it was popular at the time and easier. His classmate’s name was Tariq. Tariq had not taken the test at Premium Language Training Centre. He did not have contact with Tariq now. It had been some years ago.
7. He was asked whether after telling him about ETS Tariq had given him any information about booking the test and he said no. He was asked about what he said at paragraph 16 of the first interview that he had booked the test in person at the centre. He had checked online for the nearest test centre for ETS and came to know that Premium Language Training Centre was ten or fifteen minutes by car away from his residence at the time. He said that he had gone online to see what the availability was for booking and also at Premium. This was on the Premium website. He agreed that there was a telephone number for the test centre on the website and there was an option to book online. He had been alone when he was looking at it online. It was put to him that he could have booked the test online or by calling the number and he said that it was near to his house. He agreed that he had never been there and a telephone number was on the website and the option to book online existed but he had not called the telephone number or booked online but had gone in and booked in person. No-one had told him to book in person. He was asked whether he had chosen the 10 o’clock time schedule for the test and said no, they gave it to him. He knew that there were other time slots to book on that day but it was near home and it was good to do it early. There had been other slots available on that day but he did not remember how many.
8. When he went to do the test on 20 June 2012 there were, he thought, fifteen to twenty other people taking the test at the centre though he was not sure of the number. He had described the test that he had sat. He had read up on the ETS test details when he made his statement. He had tried to obtain the voice recording, having emailed ETS, and was told the cancellation score.
9. He was referred to the document at page 6 of the supplementary bundle and said it had come from India. His name was on the letter provided, though not on the document at page 6 but it was in the document: To whom it may concern at page 8.
10. The appellant said that he spoke Hindi and Punjabi. He had family in India, his parents, brother and sister. He had last spoken with them yesterday. He had work experience in India between 2004 and 2007 when he had worked as a sales assistant and had worked in marketing in the United Kingdom.
11. There was no re-examination.
12. The next witness was Mr Rashan Lal. He had provided the To whom it may concern letter at page 11 of the supplementary bundle. He gave his name and address and said he was self-employed and ran a company, Alpha Telecommunications Ltd. He said that the letter that he had provided was true to the best of his knowledge and he was happy for it to be taken as his examination-in-chief.
13. When cross-examined it was put to him that the letter could not show that the appellant did not cheat in 2012 and he said he had worked with him in 2011 and 2012 and he was very happy with his service and he believed he was honest. He was asked about the clients’ nationality as referred to in the letter and whether there were no English clients and he said there were English clients as well and he had been dealing with telecommunications companies.
14. There was no re-examination.
15. In her submissions Ms Ahmed relied on the refusal letter and the Home Office bundle. It was agreed that the Secretary of State had discharged the initial burden on her and the burden was therefore on the appellant to provide an innocent explanation. It was argued that he had not rebutted the evidence against him. Ms Ahmed referred to the decision of the Upper Tribunal in DK and RK [2022] UKUT 00112 (IAC). The appellant had sat the ETS test at a time when there was widespread cheating. He had sat it at a centre that was subject to a criminal inquiry. It could be seen from the report that within the period of 20 March 2012 to 5 February 2014 Premium undertook some 5,000 TOEIC tests and 3,780 were invalid and 1,275 were questionable and there were zero cases where there was no adverse evidence of validity. Reference was made to page 6 of the ETS bundle and the result for 20 June 2012 which showed that zero were released and 89% of 203 tests were invalidated and 11% were questionable.
16. Ms Ahmed referred to what had been said at paragraphs 73, 75, 103, 118 and 128 in DK and RK. The effect of this was that there was no smoke without fire. As regards the innocent explanation, she referred to MA [2016], which said that where there was clear and reliable evidence of deception it needed cogent evidence. It was necessary to scrutinise the appellant’s credibility. Issues such as response time and hesitation were relevant as referred at paragraphs 54 and 55.
17. His leave had been due to expire on 20 July 2012, so he had had little time and within the time available could not do the IELTS test. He had been told about Premium by a classmate who had done the examination at the same time as him, which raised alarm bells. The appellant’s evidence was that after the recommendation he looked online and found the Premium website and telephone number and booking option on the website. He had never been there before. It was argued that it was unlikely that with that on the website he had not even called them but got on a bus and went to the test centre and booked in person. This raised suspicion.
18. It seemed from page 6 of the ETS bundle that there were 227 tests on that day. The appellant said that at the time of the test there were fifteen to twenty people there. His scores were rather high. The evidence today was that his English was acceptable but the question was whether he had shown that ten years ago he would achieve those marks.
19. The document at page 6 of the supplementary bundle was doubtful and the guidance in Tanveer Ahmed was relevant. The appellant’s name was not on it and it was just a photograph. The page 8 letterhead was relevant and it was raised as page 6 was not reliable and it opened the door to questions as to why the appellant had adduced this and it should be found that he had not discharged the burden. The Secretary of State had shown he had cheated. As regards Article 8 he had not shown very significant obstacles to re-integration into India, bearing in mind that he had family there and was in contact with them and was resourceful and educated and had had jobs. Reliance was placed on section 117B(1) and (4) of the 2002 Act. The appeal should be dismissed.
20. In his submissions Mr Gajjar argued that the central issue was whether it was found the Secretary of State had shown that the appellant had used a proxy. The initial burden had been discharged. DK and RK did little more than the earlier decisions. It was argued that issue could properly be taken with the way in which the case had been presented. Although Ms Ahmed had provided numbers as to the number of tests taken including invalidity and questionable test results, this was unacceptably incomplete as the Tribunal had not been told how many of those later came before judges and were exonerated. It did not show that none of the 4,000 to 5,000 cases were exonerated as no figures were given and therefore it was inappropriately selective and prejudicial. Keeping that in mind, it was necessary to present an innocent explanation. The threshold was low.
21. There was the difficulty of the preserved finding by the judge that the appellant’s English was not at a standard that would lead to the 200 out of 200 threshold being crossed. That should be considered very carefully. It was not supported by today’s evidence. It had to be seen as a caveat as the appellant said he was nervous when he gave his evidence to the First-tier Judge. Ms Ahmed had referred to MA in this context, but it was a difficulty for the Secretary of State as the appellant’s evidence today had not been given with hesitation and the cross-examination had been very quick and he had shown no delay in responding or that he was struggling to engage. He had shown a clear and strong understanding and only a few questions had needed to be repeated. It should not be assumed that between 2012 and 2022 his English would have improved as he had confirmed that after his leave was curtailed he had largely remained in his own community, which, it could be inferred, consisted of Hindi and Punjabi speakers. In the context of that community, as the appellant said, the need to speak English was limited, so his command of English was likely to have diminished. Such might be the case for example for a person who had studied French GCSE but subsequently not spoken it over the next ten years. It was necessary therefore to consider the quality of his English today and his overall engagement with the English language. Before coming to the United Kingdom he had studied in English and Punjabi and was interviewed by the Tier 4 sponsor, who had stringent responsibilities and who had been satisfied that his English was sufficient to sponsor him. He had come to the United Kingdom and been questioned on arrival and allowed on his way whereas routinely people were turned away if they showed poor English. He had done the ETS test since coming to the United Kingdom and passed a diploma and had a Masters degree and all must have required ability to engage with the English language.
22. The adverse factors argued on behalf of the Secretary of State were immaterial. Booking in person was a red herring and it was no more likely that he would have cheated than if he had booked online. Also, the document at page 6 could be seen from the information at page 8 to refer sufficiently clearly to the appellant. The photograph also bore a strong resemblance to him and was beneath the various stamps on the page, so there was no discrepancy.
23. The score of 200 out of 200 was, as the appellant said, not his fault. It could not safely be said what the quality of his English was at the time of the test in comparison to how it was before the judge. The comparisons were inherently dangerous. It could be that he spoke no English in 2012. This demonstrated the difficulties of comparison between 2012 and the present day.
24. He had said in the first statement why he did the test as he had little time before his leave expired, so he could not go to IELTS and that was in his favour as he had not been set on going to ETS. He had explained why he chose that test centre and how he prepared for the test. Refreshing his memory was not to his discredit. The absence of his classmate Tariq was not adverse. People did drift apart as the appellant said and that was after the end of the studies. The Secretary of State had indicated that Tariq could have cheated but even if that was so, it did not mean the appellant did and there was no evidence that Tariq had cheated in any event and this was speculation.
25. Ms Ahmed relied on what was said in DK and RK and the point that there was no smoke without fire and that was true but one had to consider who had lit the fire. Unless it was lit by the appellant with a proxy there was no reason to dismiss the appeal. Innocent people had been drawn into this litigation and it could not be concluded that the appellant had cheated. It could not be right that some 5,000 people had all wanted to cheat and it was not unique to the college in question. It was said in the Project Façade Report that it was rare that people were released and yes, there were adverse findings but there was the oral evidence today and the appellant’s ability to speak English. As was held in Shen, there was a duty on the Secretary of State to rebut the innocent explanation and that had not been done.
26. If the Tribunal agreed with the above submissions, then, the appellant’s leave having been curtailed, as regards the deception finding, that could not stand and there had been historic injustice as held in Khan at paragraph 37. The appellant should be put back in the position he was in with no breach in his leave. It was also relevant to bear in mind the evidence of Mr Lal, who could not confirm whether the appellant had cheated or not but spoke of his character as being trustworthy with the customers and his ability in English and page 11 of the supplementary bundle showed that the appellant had spoken with people from various nationalities and in English. The appeal should be allowed.
27. I reserved my decision.
28. In a case such as this where dishonesty has been alleged, the burden is on the Secretary of State to establish the dishonesty. As was said in Shen [2014] UKUT 236 (IAC), if an innocent explanation is offered by the appellant, the burden switches back to the Secretary of State to answer that evidence.
29. The innocent explanation proffered by the appellant is in part the information provided in his first witness statement, in which he said that he had relatively little time to take an English language test as his visa was curtailed on 21 May 2012 with an expiry date of 20 July of that year. There was not sufficient time to do an IELTS test, so he was told by a classmate about the ETS test and booked it in person at Premium Language Training Centre, having checked online for the nearest test centre, found it was ten to fifteen minutes away from his home, so he went to the test centre and paid for the test.
30. He then described how he had prepared for the test and arriving at the test centre on 20 June 2012 and how he travelled there, the location of the centre, the set-up of the building there and the kind of matters that were examined in the course of the spoken and written tests. He also described going back to the test centre on 2 July 2012 for the listening and reading tests. Again, he described the details of the tests. He said that he had passed the test genuinely by his own effort and did not use deception in the test and that the test provider institution duly recorded his test. Thereafter, what happened was between ETS and the institution and he was not responsible for the irregularity.
31. As was noted by Judge Rintoul in the error of law decision, the innocent explanation was that, following evidence heard by the APPG and a report of the National Audit Office, the evidence relied upon by the Secretary of State is not reliable and in particular the allegation is that there are difficulties with the chain of custody of the individual test results. It is said that this is an explanation of why the appellant apparently received a score of 200 out of 200 on the speaking test, the explanation being that such a score was clearly wrong in light of the fact that his English was clearly not of that standard at the hearing some seven years later.
32. Following the detailed examination of the evidence in DK and RK, the Tribunal concluded at paragraph 119 that it is overwhelmingly likely that those to whom the proxy results are now attributed are those who took their tests by that method. The Tribunal went on to refer at paragraph 126 to the virtual exclusion of suspicion of relevant error by ETS and the virtual exclusion of motive or opportunity for anybody to arrange for proxy entries to be submitted except the test centres and the candidates working in collusion. The Tribunal went on to say at paragraph 127 that 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 amply sufficient to prove that fact on the balance of probabilities. (It is relevant to recall the figures, set out at paragraph 15 above, showing the number of tests at Premium in the relevant period and, in particular, on June 20th, 2012, the day on which the appellant claims to have sat his tests). As the Upper Tribunal said at paragraph 129 of DK and RK, mere assertions of ignorance or honesty by those whose results are identified as obtained by a proxy are very unlikely to prevent the Secretary of State from showing that on the balance of probabilities the story shown by the documents is the true one. It is said that this will be and remain not merely the probable fact but the highly probable fact.
33. From the evidence provided in the respondent’s supplementary bundle it can be seen from the witness statement of Seela Sreeraman of 2 January 2020 that the test result in this case was cancelled by ETS on the basis of its own analysis which indicated that the test result had been obtained via the use of a proxy tester. The scores can be found at Annex A1, the 200 out of 200 for speaking and 180 out of 200 for writing and at Annex A2 it can be seen that the test centre on 20 June 2012 when the appellant did the test a total of 227 tests were taken, zero were released, 24 were questionable and 203 were invalid.
34. The Upper Tribunal in DK and RK, having considered the evidence and the relevant issues comprehensively, came to the conclusions set out above and the effect of that is, particularly bearing in mind the absence of any evidence to the contrary, that only if there is credible evidence which undermines the effect of the ETS evidence in the individual case can it be said that the result on the balance of probabilities has not been shown to have been obtained dishonestly.
35. Into the balance must be placed the detail given by the appellant of the circumstances in which he sat the test. Against it is the fact of his poor English as noted by the judge in the preserved finding. I bear in mind what was said by Mr Gajjar in this regard, and can accept to an extent that the preserved finding has to be seen in the context of any other evidence of the appellant’s English language proficiency. He did better at the hearing before me than he seems to have done before the judge two years earlier, but there were occasions when questions had to be repeated and he was at times difficult to understand. I bear in mind the evidence provided concerning both his character and his language skills from Mr Lal in assessing this point also. But it remains the case that the score of 200 out of 200 and to a lesser extent the score of 180 out of 200 are significantly at variance with the poor quality of his English as in particular demonstrated to the judge. Though it may be that has for some years spent most of his time in his own community, he has nevertheless been living in the United Kingdom and it would be surprising if he had not had to communicate relatively regularly in English during that time. The score attributed to him under both headings is significantly at variance with the English language skills that he has demonstrated, and it is relevant to bear in mind that at a hearing some seven years after he took the test the judge found his English to be poor.
36. I do not hold against the appellant as adverse the fact that he chose to go to the particular centre in the circumstances in which he said he did. There is no reason to doubt the credibility of his contention that he was advised about the centre by a classmate, although it is perhaps somewhat surprising that he did not choose to book online or to ring the college up, the simple fact of going to the college and booking the test and making a payment at that time is not suspicious but of course we know nothing about what knowledge he had of this centre and its reputation other than what he says in the witness statement. It is also relevant to bear in mind in relation to the appellant’s motivation the point made by Ms Ahmed that the appellant had little time in which to arrange for a test, as his leave was due to expire on 20 July 2012.
37. Bringing these matters together, I do not consider that it has been shown that an innocent explanation has been provided by the appellant such as to discharge the evidential burden in that respect. The Secretary of State has discharged the burden of proof on her. As a consequence, the appeal is dismissed.
Notice of Decision
The appeal is dismissed.
No anonymity direction is made.
Signed Date 8 July 2022
Upper Tribunal Judge Allen