Tribunal decisions

The decision

Upper Tribunal

(Immigration and Asylum Chamber)
Appeal Number: IA/06589/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On the 6 June 2022
On the 14 July 2022

Before

UPPER TRIBUNAL JUDGE GLEESON

Between

gurdeep kaur
[NO ANONYMITY ORDER]
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the appellant: Mr Eric Fripp of Counsel, instructed by Morden Solicitors
For the respondent: Ms Susana Cunha, a Senior Home Office Presenting Officer
DECISION AND REASONS
1. The appellant appeals with permission from the decision of the First-tier Tribunal dismissing her appeal against the respondent’s decision on 19 February 2015 to cancel her leave to remain with reference to paragraph 321A(1) and (2) of the Immigration Rules HC 395 (as amended) on the grounds of deception and significant cj in circumstances. The appellant is a citizen of India.
2. The appellant is a citizen of who on 20 March 2013 was granted leave to remain as a spouse. Her application relied on an ETS/TOEIC English language test from the New London College, said to have been taken on 28 November 2012, which the respondent considered to have been fraudulently obtained by the use of a proxy test taker.
3. Mode of hearing. The hearing today took place face to face.
4. Evidence. The applicant and her husband Mr Harjinder Singh gave oral evidence against her witness statements of 5 August 2015, 20 January 2021 and 23 May 2022, and his witness statements of 23 May 2022, 28 January 2021 and 11 August 2015.
5. Ms Cunha for the respondent confirmed that it is accepted that the marriage is genuine and subsisting. The respondent also does not dispute that Mr Singh earns in excess of £34000 from his double glazing business in the UK.

6. The appellant’s solicitors provided a consolidated bundle of documents and I heard submissions from both parties.
Background
7. The appellant was born in India in 1984 and is now 38 years old. In India, she obtained a BSc in Science from Punjabi University, taught in English.
8. The appellant first came to the UK in October 2006 as a visitor, remaining in that capacity, then as a working holiday maker, and finally as a Tier 4 general student migrant, in which capacity her leave expired on 8 December 2012.
9. On 27 June 2010, she married Harjinder Singh, a British citizen. She produced an ETS/TOEIC test as part of that application, dated 28 November 2012. On 20 March 2013, she was granted leave to remain as his spouse. The appellant and her sponsor husband were undergoing in-vitro fertilisation treatment to try to start a family.
10. In January 2015, the appellant went back to India to visit her mother. On her return, on 19 February 2015, she was informed that her leave had been cancelled for ETS/TOEIC fraud.
11. The appellant has always contended that she did sit the test herself, although her account of the testing process has developed over time.
12. As at the date of hearing, the couple are still trying to start a family, and the appellant’s husband supports her by working here.
13. The appellant appealed to the First-tier Tribunal.
First-tier Tribunal decision
14. On 20 August 2015, First-tier Judge Jones dismissed the appellant’s appeal. He was satisfied that the appellant had used a proxy test taker and that she therefore did not satisfy the suitability requirements for the grant of leave to remain as the partner of a British citizen.
15. Paragraph 276ADE was not argued: the appellant accepted that she could not bring herself within the Rules. The Judge considered Article 8 outside the Rules but was not satisfied that there were insurmountable obstacles to her reintegration in India if she were to be returned there.
16. The sponsor had a business in the UK but the Judge was not satisfied that he could not start either that, or a different business, in India if he chose to return there with his wife, the appellant.
17. The appellant appealed to the Upper Tribunal.
Permission to appeal
18. The grounds of appeal, summarised in Mr Fripp’s skeleton argument are first, that the respondent was not entitled to reach the conclusion she did on the TOEIC evidence, given the guidance subsequently given by a number of Courts and Tribunals on the reliability of the respondent’s ETS/TOEIC evidence; and that the appellant’s removal now, after more than 10 years of marriage to a British citizen, would be disproportionate under Article 8 ECHR, even if the 2012 allegation were made out.
19. The appellant did not accept that the respondent had discharged the evidential burden upon her of showing that she had cheated in her ETS/TOEIC test. The appellant recognised that in New London College, virtually every test had been rated as fraudulent, but argued that the question remained one of individual fact and that she had, in fact, sat the test in person. The appellant had given a full account at an early stage and she and her husband had paid only £250, not the £500 known to have been charged for a ‘guaranteed pass’ by New London College.
20. The First-tier Tribunal and Upper Tribunal refused permission to appeal and the Administrative Court refused judicial review on Cart grounds. The appellant appealed to the Court of Appeal.
21. On 3 November 2017, the Court of Appeal granted permission for judicial review and on 2 May 2018, the Administrative Court quashed the decision of the Upper Tribunal to refuse permission to appeal. Permission to appeal was then granted by the Upper Tribunal.
Rule 24 Reply
22. There has been no Rule 24 Reply on behalf of the respondent.
23. There was then a further delay before this appeal could be determined, to await the outcome of what has now been reported as DK and RK (ETS: SSHD evidence, proof) India [2022] UKUT 112 (IAC).
24. That is the basis on which this appeal came before the Upper Tribunal.

Upper Tribunal hearing
Appellant’s evidence
25. The appellant adopted her three witness statements, all of which she said were true, though she had not recently re-read the 2015 statement.
26. In her 2015 statement, she said she had gone back to India in January 2015 to see her mother and returned to find her leave to remain cancelled. Her test results had been cancelled for reasons entirely beyond the appellant’s control. She had taken the test herself and the respondent’s deception allegation was no more than a bare assertion. She would be able to provide UK NARIC evidence that her bachelor’s degree in India was at CEFR A1 level, which was all that was required for her spouse application.
27. The appellant had been diagnosed with polycystic ovary syndrome and was receiving treatment. Her husband also had some fertility issues. She was unable to get pregnant naturally and was on Metformin to regulate her menstrual cycle. She was expecting a scan and blood test shortly.
28. In her 2021 statement, written during the Covid-19 pandemic lockdown period, the appellant relied on her 2015 statement and said that her husband was her life partner and her best friend. They enjoyed going for walks in the park, going for long drives, going out to eat, and shopping together. If the appellant was ill, her husband would take the day off work and look after her. The appellant used to help her husband by managing the business, but now due to her immigration status, she was unable to do so.
29. During the March 2020 lockdown, her husband had been unable to work and they had spent time together. More recently, he was back working part time and they still had more time together than when they first met. The in-vitro fertilisation treatment was continuing but was hampered by the appellant’s stress levels, which also impacted the appellant’s mental health.
30. Her immigration status had caused problems in the relationship, but although it caused tension, they had used their struggles to become closer. The monthly reporting embarrassed her and she felt like a criminal. She had been detained for a month in 2013 which was the longest she had been apart from her husband. She had really struggled without his support and guidance.
31. The appellant expanded her account of the TOEIC test she had taken, saying that she had attended New London College on the recommendation of her solicitor, because time was short for her English language qualification and her solicitor said it was easy to obtain an appointment at short notice with them. She and her husband went to the New London College and spoke to the receptionist. They got a date, and paid £250 fees.
32. The appellant attended New London College on the day of her test (she does not mention a date) and there were 30-35 students taking a written test. After that, she was moved to another room to take dictation, with about 10-15 students. They waited 2-3 hours before being told that they would have to come back the next day because of technical difficulties with the College’s computers.
33. The next day, she arrived at 0900 but the test for speaking did not start until 1400. The computer was already on and speaking. The appellant sat down, put on headphones, and was shown a photograph of a bakery, which she described in detail. She then left, having completed the test.
34. In her 2022 statement, the appellant corrected the address given in her 2021 statement for the New London College (she now said it was on Staines Road, not Bath Road) and the year of her detention (January 2017 not 2013). She produced Google Maps images of the test centre.
35. The appellant was not currently taking any medication but had received treatment for depression in the past. She suffered nightmares and stress, but had not told her GP about it. She was still struggling to conceive: treatment had begun in late 2014, when the appellant had her passport and could disclose it. Unfortunately, she did not get an appointment until August 2017. She was detained then and could not make the appointment. She was put back on the waiting list and had been unable to progress matters further because she needed to produce a passport, and now the Home Office had her passport. She had tried again to register with a doctor in 2021, but had the same problem.
36. The test dates on her TOEIC certificates were wrong: they were 28 November 2012 and 14 December 2012, but she had sat the tests on 28 and 29 November. The date of 14 December 2012 was incorrect and the appellant did not know why. Her relationship with her husband was genuine and she was an honest woman, caught up in something which was not her fault.
37. In answer to supplementary questions from Mr Fripp, the appellant said that theirs was a love marriage. Neither family accepted the relationship so they had to marry in the UK. She had met Mr Singh at a Sikh temple they both attended in 2008/2009. She could speak correct English, but not slang.
38. In cross-examination, the appellant said that she took the 2012 test for her spouse visa, as her student visa was due to expire on 7 December 2012. She had not done a listening and reading test on 14 December 2012. She had no evidence to confirm having taken it on 29 November 2012, as she claimed. She had given everything to her solicitor and he had organised the UK NARIC certificate. All of the certificates she received had been given to the solicitor. She had not noticed the date error in her 2015 and 2021 statements.
39. Her English had not improved since 2012, a period of some 10 years. She Conseil d'Etat speak English, but not very fast. Her degree in India was a BSc in physics, chemistry and biology. She was a medical student at the time and had to study for 2-3 years to get the BSc. A science degree as an undergraduate degree meant that you could then choose any other branch for post-graduate study.
40. In the UK, she had intended to continue studying but in business management, not medicine. In the UK, she was ‘not very well from the financial’. Her parents could not afford to finance any study for her here and while she said ‘I would teach to get job’, she had neither studied nor worked, except in her husband’s business.
41. She had prepared for the speaking test by having ‘checked on the TubeYou’, by which she meant YouTube. The appellant explained the details of the baker’s shop scene on which she had been asked to comment. It had taken just 2-3 minutes and ‘after that, computer is gone’. There were between 35 and 45 students on the first day, and just 5 on the computer test the next day.
42. The test centre was 20 minutes’ drive from their home, so her husband drove her there. At the time, there were two or three test centres in Hounslow and she needed the earliest possible date. A date offered in January 2013 was too late, her solicitor had told her.
Husband’s evidence
43. Mr Singh did gave oral evidence, adopting his witness statements from 2015, 2021 and 2022. In his June 2015 statement, Mr Singh said the couple met in October 2009 and married on 27 June 2010. He adopted his wife’s account of the Article 8 ECHR element of her appeal and asked that she be allowed to remain in the UK.
44. In his 2021 statement, made during the Covid-19 pandemic lockdown period, he said they were still happily married, although the appellant’s lack of immigration status had caused problems and stress. The tension had drawn them closer together. They enjoyed time together, going for walks in the park, long drives, going out to eat, and shopping.
45. Mr Singh had been diagnosed with ulcerative colitis in 2018 and hospitalised. His wife had been extremely supportive. When he was ill, he would become very dependent on her and she would care for him. His doctors had prescribed medication (Asacol and Azathioprine) for his colitis. The in-vitro fertilisation treatment was continuing as the couple still wanted children together.
46. Mr Singh said he had accompanied the appellant to New London College to book her test. She got a date, and they paid £250. She attended the college on 28 November 2012: he dropped her off and waited for her to complete the test, on that day and on the next.
47. In his 2022 statement, Mr Singh said that they had a love marriage: his relations in India did not approve of the marriage, which would be a social difficulty if they returned there. He had a thriving business which he would not be able to continue if they went to India, as his social ties are here. Mr Singh supported his wife financially, morally and emotionally. He was earning about £34500 a year and owned the property where they live, a three-bedroom property bought by him in 2012.
48. Mr Singh said that the accusation of cheating, if it became known, would tarnish the couple within their small community. As it was, they had been obliged to reduce their friendship group because of this serious allegation. He was sure that he had dropped her at the test centre and that his wife had taken the test.
49. Mr Singh adopted those statements and was tendered for cross-examination. In answer to questions from Ms Cunha, he said he had received a telephone call from India, saying that his marriage had taken place without family consent and he should think before returning. His wife came from a different area in India: she had gone back for a friend’s wedding in 2014, but did not see her family. Mr Singh said that he would not be going back to India if the appeal was dismissed. ‘They don’t let me go there. They are her friends and I do not know them’.
50. The appellant and Mr Singh were both Punjab born and bred and so they used Punjabi both at home, and in his business dealings which were mostly within the Asian community. His business was the sale of double glazing. He could not pursue his business there as the construction of dwellings was wood, not PVC or aluminium as here. Previously, when in India, the husband had been studying and helping his father with agriculture. He had not worked independently there.
51. The husband said he had dropped his wife at the test centre twice, though he was not sure on what days, except that it was two consecutive days. He had not gone inside, but waited outside for 2 hours the first day and between 2 and 4 hours on the second day. It was necessary for his wife to pass, but she alone had taken the test. They had paid £250 of his money, on the day before the test. Nobody else had been involved.
Submissions
52. Ms Cunha for the respondent submitted that in the light of DK and RK, the respondent should be taken to have discharged the evidential burden upon her. The respondent’s Lookup Tool indicated that ETS had rated the appellant’s test as invalid. Only one test, on 28 November 2012, appeared on the Lookup Tool. In her 2015 statement, the closest to the events, the appellant had made no mention of returning on 29 November 2012 and this was an attempt to ‘plug the gap’ in her evidence and should not be treated as reliable.
53. The respondent had complied with her duty of candour and provided evidence to show that the appellant had used a proxy test taker in her speaking test. Ms Cunha asked me to take notice of the apparent difficulty the appellant had with comprehending the questions asked of her, and her evidence that her English had not improved in the 10 years since the disputed test. Her husband, on his own evidence, waited outside and could give no reliable corroborative evidence of the appellant having taken the test herself.
54. The respondent would rely on DK and RK and also on TK (Burundi) v Secretary of State for the Home Department [2009] EWCA Civ 40 at [20]-[22] for what it said about the production of independent supporting evidence, where it would ordinarily be available.
55. As regards Article 8 ECHR outside the Rules, the evidence did not come close to showing insurmountable obstacles to the appellant returning to India with her husband. The appeal should be dismissed.
56. For the appellant, Mr Fripp made oral submissions against his skeleton argument, to which I have had regard in reaching my decision. He conceded that following DK and RK, he was obliged to accept that the respondent had met the evidential burden upon her but this was academic. Later in his submissions, Mr Fripp appeared to be contending that DK and RK was probably wrongly decided and that I should depart from it, given the evidence before me.
57. The Lookup Tool was no more than an indexing tool and did not carry determinative weight. The respondent had not produced her GCID record. The expectation of evidence from the appellant should not be regarded as displacing the respondent’s responsibility to discharge that evidential burden.
58. Mr Fripp also accepted that there was nothing before the Tribunal from SZ Solicitors, who had represented the appellant at the time of her application. He acknowledged that ETS had invalidated 100% of the results from the New London College, including the appellant’s test result which had been assigned to 28 November 2012, though on her evidence she took it over two days, completing the tests on 29 November 2012. Record keeping was the responsibility of New London College, who reported to ETS.
59. All the recent Presidential panels had given clear guidance that ETS/TOEIC cases were evidence-specific. In the present case, the deception allegation did not come to light until three years later, when the appellant was returning from visiting India, and was interviewed after a long flight. The respondent’s decision was based on the speaking test alone and the increased detail over the three witness statements was understandable.
60. The appellant’s results did not fit the pattern of ‘super high’ results and appeared to be in line with her ability in her oral evidence at the hearing. The appellant had tried to obtain a voice sample, but had not been successful. Mr Fripp acknowledged that the appellant had not begun to ask for a copy of her voice record until early 2021 (no copy of that request by her solicitors was provided in the bundle) and relied on a reminder in May 2022.
61. The UK NARIC evidence in the bundle related to an assessment of the appellant’s language competence in her Indian BSc degree studies, not her speaking test in the UK. UK NARIC had rated her A1, the lower of the Basic User levels in the Common European Framework (CEFR), not C1 Advanced/Proficient User which was the result on the New London College tests. New London College’s status as a fraud ‘factory’ was not to be regarded as determinative of the individual case. Dishonesty was not made out, on the facts, and the appeal should be allowed.
Documents
62. The appellant has produced documentary evidence of her degree in India, completed in 2006, which was taught in English, and a letter dated 13 December 2012 from UK NARIC, which states that ‘the level of English language for the above degree course does not meet the requirements of CEFR level C1’. That letter could not have been included in the appellant’s application, which was submitted on 7 December 2012.
63. She also produced a certificate from TOIEC evidencing a speaking score of 140, proficiency level 6, dated 28 November 2012, and a listening and reading score certificate dated 14 December 2012, again after the date of the application, giving a high score of 365/495 for listening and a lower score of 185/295 for reading, making a total score of 550/990. The appellant’s case is that although that certificate bears her name and date of birth, it has nothing to do with her and she did not take any test on that day. It is unclear why, in that case, she has produced and relied upon it.
DK and RK
64. The Upper Tribunal has considered the ETS/TOEIC testing process on a number of occasions, and on the basis of increasingly sophisticated evidence from the respondent, following the BBC Panorama programme broadcast on 10 February 2014, which exposed the proxy test taker cheating as widespread. At [4] in that decision, the Tribunal summarised the conclusion it had reached on the evidence before it, in a lengthy series of hearings which ended on 25 November 2021:
“4. 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.”
65. The Upper Tribunal gave the following guidance:
“1. 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.
2. The burden of proving the fraud or dishonesty is on the Secretary of State and the standard of proof is the balance of probabilities.
3. The burdens of proof do not switch between parties but are those assigned by law.”

TK (Burundi)
66. In TK (Burundi) at [20]-[21] in the judgment of Lord Justice Thomas, with whom Lord Justice Waller and Lord Justice Moore-Bick agreed, he said this:
“20. The importance of the evidence that emerged in this Court is to demonstrate how important it is in cases of this kind for independent supporting evidence to be provided where it would ordinarily be available; that where there is no credible explanation for the failure to produce that supporting evidence it can be a very strong pointer that the account being given is not credible. It is clear in the circumstances of this case that the Judge was in fact right to disbelieve the appellant. …
21. .... It follows that where a Judge in assessing credibility relies on the fact that there is no independent supporting evidence where there should be supporting evidence and there is no credible account for its absence commits no error of law when he relies on that fact for rejecting the account of an appellant.”
Analysis
67. The only test which the respondent had before her when granting the applicant leave to remain as a spouse, submitted with the application on 7 December 2012, was the speaking test dated 28 November 2012.
68. The respondent was entitled to have regard to the fact that ETS had assessed 100% of tests taken at New London College as invalid. The appellant’s current account, that she took her test over two days on 28 and 29 November 2012, does not avail her: if that were the case, the results would be dated 29 November 2012. Nor is it to her credit that she submitted in these proceedings a purported test result from 14 December 2012 which she now says does not relate to any test she took.
69. Mr Fripp’s insistence that the appeal turns on its particular facts does not avail this appellant. She has made no real attempt to obtain and verify her speaking test record, although it is now 10 years since she took it and 7 years since she was aware that the respondent was challenging it as fraudulent.
70. I am not minded to depart from the guidance given in DK and RK and I therefore approach this appeal on the basis that the Lookup Tool and the record of New London College are together sufficient to discharge the respondent’s evidential duty.
71. Nothing in the appellant’s evidence persuades me that she did in fact take the test as alleged. On her own account, she got the address wrong in her first statement, did not check the certificates, and the only reliable evidence (from UK NARIC) was that her degree in India could not be regarded as evidencing more than the most basic level of English.
72. The respondent did not err in treating this appellant as a person who had used deception by using a proxy test taker at an acknowledged ‘fraud factory’.
73. I remind myself that the appellant cannot bring herself within the Article 8 ECHR element of the Rules. As regards Article 8 outside the Rules, there is no evidence of the family disapproval relied upon. The appellant’s account, and that of her husband, as to what she did when she went back to India is discrepant: the appellant says she went in 2015 to see her mother, but her husband says she went in 2014 to a friend’s wedding and did not see her family.
74. The appellant is not currently receiving any in-vitro fertilisation treatment because the respondent has her passport, on her account. There are no significant obstacles to her reintegration in India on return, nor indeed are there any insurmountable obstacles to this couple living together in India, of which they are both citizens, if they choose to do so.
75. This appeal is accordingly dismissed.

DECISION

76. For the foregoing reasons, my decision is as follows:

The making of the previous decision involved the making of an error on a point of law.
I set aside the previous decision. I remake the decision by dismissing the appeal.

Signed Judith AJC Gleeson Date: 1 July 2022
Upper Tribunal Judge Gleeson