Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/30524/2015

THE IMMIGRATION ACTS

Heard at Birmingham Employment Tribunal
Decision Promulgated
on 6 April 2017
on 26 April 2017

Before

UPPER TRIBUNAL JUDGE HANSON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MUHAMMAD UMAIS
(anonymity direction not made)
Respondent

Representation:
For the Appellant: Mr Mills Senior Home Office Presenting Officer
For the Respondent: Mr Jafferji instructed by Eurasia Legal Services

DECISION AND REASONS

1. Although this is an appeal by the Secretary of State the parties shall be referred to as they were before the First-tier Tribunal with Mr Umais the appellant and the Secretary of State the respondent.
2. This is an appeal by the Secretary of State against a decision of First-tier Tribunal Judge Barber (‘the Judge’) promulgated on 18 July 2016 in which the Judge allowed the appellant’s appeal under the Immigration Rules.

Background

3. The appellant is a national of Pakistan born on the 27 July 1988. He entered the United Kingdom lawfully on 27 September 2009 as a student with leave valid to 31 December 2012. On 30 March 2011, an application for further leave to remain as a Tier 4 (General) Student Migrant was granted valid to 28 June 2014. On 16 April 2012, such leave was curtailed so as to expire on 25 June 2012. On 22 July 2013, the applicant married in the UK and on 1 August 2013 applied for leave to remain as the spouse of a person present and settled in the UK. This application was refused. In support the appellant submitted an ETS TOEIC test result as evidence of his meeting the English language requirement. The application was refused.
4. On 25 July 2014, the appellant’s daughter was born in the UK. On 27 July 2014, the appellant applied for leave to remain outside the Rules under Article 8 ECHR.
5. The respondent refused the application under the Rules by reference to the inability of the appellant to satisfy the suitability requirements. The relevant parts of the refusal notice at [13 - 21] are in the following terms

13. In your application dated 11/05/2012 you submitted a TOEIC certificate from Educational Testing Services (“ETS”).

14. 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 21/03/12 at Colwell College 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 that you used deception in your application of 11/05/2012.

15. 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.

16. 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 the paragraph R-LTRP.1.1. (d) (i) of the Immigration Rules.

17. Consequently you fail to meet the suitability requirements of paragraph R-LTRP.1.1. (d) (i) with reference to paragraph S-LTR.2.2. of the Immigration Rules.

18. You have applied for leave to remain on the basis of your relationship with Shanice Khan. The requirements for leave to remain as a part of set out in section R-LTRP of Appendix FM of the Immigration Rules. However, for the purposes of that section, a “partner” is defined in paragraph GEN.1.2. of Appendix FM as the applicant’s spouse, civil partner, fiancé (e) or proposed civil partner, or a person who has been living together with the applicant in a relationship akin to marriage or civil partnership for at least two years prior to the date of application.

19. It is accepted that you meet the eligibility requirement of paragraph R-LTRP.1.1. (d) (ii).

20. As previously noted, you have tried to secure leave to remain in the UK by means of deception. ETS Testing Services have confirmed that your English language test scores taken on 21 March 2012 indicated that a person other than yourself achieved your test result and it is therefore considered that your test scores were obtained through deception. For those reasons, you are specifically considered a person who has sought leave to remain in the UK by deception and so you have been found to be unsuitable. Therefore, you cannot meet the rules eligibility grounds.

21. Consequently, you cannot meet the requirements of paragraph R-LTRP.1. of Appendix FM of the Immigration Rules, and EX.1.does not apply in your case.

6. The decision under challenge is relatively brief and in relation to the SSHD’s claim that the appellant had used deception contains the following observations/findings:

3. Annex A of Mr Lister’s witness statement attaches a copy of a slip of paper headed £ETS SELT SOURCE DATA” which shows a certificate number of 0044201258035003 with a test date of 21/03/12. The ETS Batch is shown as “Original Inv List 14/04/14”and the “ Inv Quest” (Column 1) shows as “invalid”.

4. Also attached to Mr Lister’s witness statement is a list, approximately 60, of the current status of various tests sat on the 21/03/2012 all of which show as either “valid” or “questionable”. However, the appellant’s certificate number is not among them as inadvertently, Mr Lister seems to have highlighted a certificate number ending in 25003 rather than 35003.

5. However, the respondent submits that the evidence of the slip of paper described in paragraph 3 above is sufficient evidence to show that the appellant obtained this certificate by fraud.

6. I do not agree for the following reasons.

7. The appellant provided me with a copy of his original test certificate from ETS. That certificate is dated 20/03/2012 and is described as being valid until 20/03/14, i.e. a period of two years. The slip of paper attached to Mr Lister’s witness statement as mentioned above shows that this forms an ETS Batch list of the 14 – 04 – 2014 and accordingly at that date the test certificate would have been invalid as two years had passed since it had been set.

8. In light of SM and Qadir v Secretary of State for the Home Department (ETS-Evidence-Burden of Proof) [2016] UKUT 229 (IAC) and the fact that is formed part of the evidence in R(on the application of Gazi) v Secretary of State for the Home Department (ETS-judicial review) IJR [2015] UKUT 00327 (IAC) that ETS themselves had confirmed in writing that there are a number of reasons for invalidation “some of which may not involve fraud or deception) (see paragraph 25), I am not satisfied that the respondent has produced any evidence to substantiate the claim that the appellant used deception to obtain the TOEIC. The fact that the certificate is showing as invalid could quite easily be the simple fact that the certificate has expired.

Error of law - ETS

7. The Judge was aware of the assertion of fraud and records the same in [1] of the decision under challenge. The Judge records that at the hearing the Presenting Officer provided copies of various witness statements including one from a Matthew Lister, and generic statements from Rebecca Collings and Peter Millington, which are very familiar to judges dealing with ETS cases.
8. The Judge was criticised by Mr Mills in relation to the failure to consider all the available evidence as it was said that in addition to this information the Judge had a copy of a report by Professor French and an extract of a report prepared as part of Project Façade relating to a criminal investigation into the college where the appellant took the TOEIC test annexed to Mathew Listers statement, to which no reference is made in the decision.
9. A failure to consider the full range of material made available amounts to arguable legal error. It was also submitted by Mr Mills that based on the evidence that was made available the Secretary of State had discharged the initial evidential burden of proof upon her showing the use of deception.
10. It is accepted that case law relating to ETS matters has moved on substantially. In relation to the Judges assertions and interpretation of the meaning of the term “invalid”, guidance has been provided by the Court of Appeal in their judgment in the case of Shehzad and Chowdhury [2016] EWCA Civ 615 at paragraph 25 where the Court state:

25. The FtT judge stated that there was no evidence identifying Mr Chowdhury as a person whose test was "invalid". In fact, the evidence included a screenshot of the results which stated this was the position. The evidence also included the "ETS Lookup Tool" which showed the tests that were "invalid". The determination also shows other mistakes and misunderstandings of the process undertaken by ETS and explained in Mr Millington and Ms Collings's statements. In particular, the FtT judge's conclusion (see [7] above) that "there could be multiple reasons for invalidation, some of which may not involve fraud or deception", failed to appreciate the distinction in the evidence between cases categorised as "questionable" and those categorised as "invalid". In "questionable" cases it was accepted that there may not have been deception. In "invalid" cases, this was not accepted. That was because the voice on the audio recording of the test under consideration (e.g. Mr Chowdhury or Mr Shehzad's test) matched the voice of someone who had taken another test using a different name.

11. The finding by the Judge that the word “invalid” may have appeared in the documents provided because of the expiry of the TOEIC certificate by effluxion of time has no arguable merit. The evidence clearly available shows that the reason the term “invalid” is used is that those issues that may make the result valid or "questionable” have been ruled out. In this respect the report of Professor French clearly shows that the system used by ETS to test and verify results is robust with the chances of false positive findings being limited to 1% of the checks undertaken.
12. The decision in Shehzad and Chowdhury was handed down on the 29 June 2016, according to the judgment, was therefore a decision available to the Judge both at the date of hearing and date of promulgation of the decision under challenge, yet is not mentioned. It is established that it is incumbent upon a Judge to apply the law in force at the date a decision is promulgated, as that is the effective date of the document, and that failure to do so amounts to legal error.
13. The assertion by the Judge that the term “invalid” arose as a result of the passage of time has no arguable merit as stated above. The inference by the Judge that there could be other reasons for the inclusion of the word “invalid” is not supported by adequate reasoning and appears to be based on arguable speculation/misdirection.
14. The document provided by Mr Lister is also of some importance in relation to the evidence before the Judge. It is clear from that evidence that there is a finding made by ETS that the appellants test results have been founds to be “invalid”. The reference to the number being transposed incorrectly in one part of the document is not material, as it is clear there is an accurate reference at Annex A of the statement containing the correct information as accepted by Mr Jafferji. The statement also shows 61 tests being taken on the date the appellant took his test at the relevant test centre, of which 75% have been said by ETS to be “invalid”. This, Mr Mills submitted, is strong evidence of malpractice relating to the English language test results. The document referred to by the Judge in [3] is also importance as it appears to be a printout taken from the “ETS Lookup Tool”. In Shehzad and Chowdhury the Court of Appeal accepted that where a decision had been made under paragraph 322 (1A) of the Rules it required material justifying a conclusion that the individual under consideration had lied or submitted false documents. The Court found that the initial evidential burden of furnishing proof of deception was on the Secretary of State but where the Secretary of State provided primer facing evidence of deception, the burden shifted onto the individual to provide a plausible innocent explanation and, if the individual did so, the burden shifted back to the Secretary of State. In effect, it was held that a screenshot of the results which stated that was the position and included the “ETS Look up Tool” which showed the tests that were categorised as “invalid” sufficed to discharge the initial burden.
15. The Judge also, in [9] states “accordingly it seems unlikely that he will go to the cost and risk of getting a proxy to sit an English language exam for him in Leicester when he was perfectly able to speak and understand English to an acceptable standard”. This “motive” argument was considered by the Upper Tribunal in a decision which was published after the promulgation of the decision under challenge of MA (ETS-TOEIC testing) [2016] UKUT 00450 where the Tribunal state at [57]:

(57) Second, we acknowledge the suggestion that the Appellant had no reason to engage in the deception which we have found proven. However, this has not deflected us in any way from reaching our main findings and conclusions. In the abstract, of course, there is a range of reasons why persons proficient in English may engage in TOEIC fraud. These include, inexhaustively, lack of confidence, fear of failure, lack of time and commitment and contempt for the immigration system. These reasons could conceivably overlap in individual cases and there is scope for other explanations for deceitful conduct in this sphere. We are not required to make the further finding of why the Appellant engaged in deception and to this we add that this issue was not explored during the hearing. We resist any temptation to speculate about this discrete matter.

16. The observation by the Judge therefore appears to have limited relevance in relation to whether deception was employed or not.
17. The Judge does record that the appellant gave evidence and is described as being “perfectly fluent in English although a bit unsure about what to say at times in relation to strenuous cross examination”. The Judge points out that the appellant sat the International English Language test in January 2009 and demonstrated a good command of English and also sat a Trinity College London exam where he was awarded Grade 2 in spoken English. Assessing the merits of these cases by reference to a demonstrated level of proficiency has been cautioned against as the issue is not whether the appellant is proficient in English but whether a proxy was used to take an English language test in March 2012.
18. The Judge has arguably erred placing little weight upon the respondent’s evidence for the reasons stated in the decision under challenge to the extent the decision is infected by legal error. Such an approach appears to have no basis considering the nature of the evidence provided, which was not the limited generic evidence adduced in isolation in earlier cases, and to be a decision contrary to case law that was available to the Judge although not referred to in the decision.
19. The correct finding by the Judge should therefore have been that the Secretary of State had discharged the initial burden of proof upon her to the required standard to show primer facie evidence of the use of deception.
20. The burden would therefore have shifted to the appellant and in this respect Mr Jafferji submitted that any error made in relation to the assessment of the evidence from ETS is not material as a result of the findings by the Judge in [9] of the decision.
21. A copy of the Judges record of proceedings were shown to Mr Jafferji who claims that the Judge heard the appellant give oral evidence and made findings upon the same which clearly shows that the appellant had not cheated and sat the English language test himself. In addition to the oral evidence was a witness statement from the appellant in which he stated that he did not cheat and the test certificate. It is stated there was also evidence from the college where the appellant had studied for one year prior to taking the English language test on an English language course which he had passed. It was argued that the respondent was unable to undermine the appellant’s claim that the test results were valid. It was submitted the appellant was asked the usual questions regarding the test and the booking of the test and answered the same and that it is not suggested that the Judge erred in finding that his answers were credible, even if the Judge erred in relation to the burden upon the Secretary of State.
22. The difficulty with the assertion regarding materiality is it does not appear that the Judge considered all the evidence that had been made available. Making the decision solely on the basis of two cases referred to in the decision and part of the evidence is insufficient, especially in light of later jurisprudence and the documentary evidence that the Judge had available to him. It is also the case that the fact the appellant could answer questions in English at a hearing conducted on 8 July 2016 is not determinative of the use of a proxy in 2012.
23. On balance, I am satisfied that Mr Mills has made out his case and find the Judge has erred in law material to the decision to allow the appeal. The decision shall therefore be set aside and remade by the Upper Tribunal which the advocates agreed we could proceed to deal with immediately.

Discussion - remaking the decision

24. Following an indication from the Bench that I was satisfied that the Secretary State had discharged the initial evidential burden upon her, in light of the evidence that had been made available and which is referred to above, a position not challenged, the Tribunal proceeded to hear the appellant’s evidence with a view to ascertaining whether he had provided an explanation such that the burden would pass back to the Secretary of State.
25. Mr Jafferji called the appellant but relied upon the witness statement provided for the purposes of the hearing before the First-tier Tribunal and the record of response to questions put at the earlier hearing set out in the Judges Record of Proceedings. The appellant was cross-examined after which the advocates made their submissions.
26. In addition, the Tribunal has the documentary evidence referred to above which, of particular note, is the Project Facade report regarding the criminal investigation into Colwell College in Leicester where the appellant claims to have taken the TOEIC examination.
27. There are also a number of other documents in the appellant’s bundle. These include a certificate issued by Trinity College London stating the appellant has been awarded a Grade 2 in spoken English, described as Entry Level Certificate in ESOL International (Speaking and Listening) (Entry 1), or the equivalent to A1 of the CEFR. The Certificate is dated 6 October 2014. An examination report issued by Trinity College London dated 3 October 2014 shows a graded examination in spoken English with the conversation at Grade C, which indicates an overall result of “pass”, with key areas for improvement being in relation to communicative skills and grammar in conversation.
28. CEFR Grade A1 is defined as:

A
Basic user
A1
Breakthrough or beginner
Can understand and use familiar everyday expressions and very basic phrases aimed at the satisfaction of needs of a concrete type.
Can introduce themselves and others and can ask and answer questions about personal details such as where he/she lives, people they know and things they have.
Can interact in a simple way provided the other person talks slowly and clearly and is prepared to help.

29. According to the TOEIC Examinee Handbook, there are a number of steps that form part of the test procedure. The certificate provided by the appellant, which has been declared “invalid” names the appellant, confirms the test date of 21 March 2012 and scores the speaking test at 150/200 giving a proficiency level of 6. In relation to the writing test a score of 170/200 is given giving a proficiency level of 8.
30. In relation to speaking the Handbook states: Level 6 Scale Score 130–150 -Typically, test takers at level 6 are able to create a relevant response when asked to express an opinion or respond to a complicated request. However, at least part of the time, the reasons for, or explanations of, the opinion are unclear to a listener. This may be because of the following:
• unclear pronunciation or inappropriate intonation or
stress when the speaker must create language
• mistakes in grammar
• a limited range of vocabulary
Most of the time, test takers at level 6 can answer questions and give basic information. However, sometimes their responses are difficult to understand or interpret. When reading aloud, test takers at level 6 are intelligible.
31. In relation to Writing: Level 8 Scale score 170 –190 Typically, test takers at level 8 can communicate straightforward information effectively and use reasons, examples, or explanations to support an opinion. When giving straightforward information, asking questions, giving instructions, or making requests, their writing is clear, coherent, and effective. When using reasons, examples, or explanations to support an opinion, their writing is generally good. It is generally well-organized and uses a variety of sentence structures and appropriate vocabulary. It may also include one of the following weaknesses:
• occasional unnecessary repetition of ideas or unclear connections between ideas
• noticeable minor grammatical mistakes or incorrect word choices
32. Although no comparative data was provided by the advocates there may be a relationship between the Proficiency Level 6 in speaking and Proficiency Level 8 in writing recorded in the test certificate and the CEFR A1 grade reflected in the Trinity College London certificate. Indicating, that despite having entered the United Kingdom in 2009 and having attended an English language course, if the results are valid, the appellant appears to have made little or no progress in his English language ability by 2014.
33. In the original record of the evidence given to the First-tier Tribunal it is recorded that the appellant had stated that he personally took the disputed test at a centre recommended by his college where he was undertaking a one-year English language course. The College he was studying at booked the test and told him to take his identity and passport. The appellant stated there were between 10 to 20 candidates and that the test was composed of four components a reading, listening, writing and speaking all of which were taken on the same day. The appellant denied asking anybody else to sit the test for him.
34. In replies to questions put in cross-examination the appellant stated he sat the test in Leicester as the college had recommended that centre as he stated it was “near Birmingham”. He claims he was shocked when he received a letter regarding the refusal. The college he studied at Birmingham, EDC, booked the test centre for him and told him to go to Leicester. He paid cash to the college for the test. The appellant stated he travelled to Leicester in a car with his brother-in-law and went to the test centre who were expecting him.
35. In response to cross-examination by Mr Mills the appellant confirmed he studied at EDC between June 2011 and March 2012 on a Level 2 English course but as there were not enough students to arrange a test at the College the test was arranged in Leicester. The appellant stated his sponsoring college made all the arrangements, including the booking, as a result of which he travelled to the nominated test centre in Leicester. The appellant stated that there were between 10 to 15 people taking the test. When it was put to him that this was discrepant as he earlier claimed 15 to 20 people were there, the appellant stated it was five years ago and that in the intervening time he had married and had two children.
36. It was put to the appellant that the evidence before the Tribunal showed that three quarters of the tests taken at that centre on that day were found to have been “invalid”, in response to which the appellant stated he went there to do the test himself and was not looking if anyone was cheating.
37. The appellant was not asked detailed questions about the actual structure of the test that he took and, on the face of it, has been consistent in his answers to both the First-tier Tribunal and the Upper Tribunal in relation to his denial of use of a proxy, his taking the test in person, and the approximate size of the group of individuals who took that test.
38. This is however not conclusive for if 61 people took the test on that day of which taking the appellant’s average figure of 15 were in the group together with him, when 46 of the 61 are said to have been found to be “invalid” there is the possibility that this include some within the appellants group. This is however not the determinative issue, which is whether the appellant himself was one who used a proxy.
39. The appellant gave no indication that he saw fraud being undertaken but it was not put to him as to how this would have manifested itself.
40. The report in relation to the activities of the college in Leicester at which the appellant took the test are of some concern. An extract from the report is to be found annexed to the witness statement of Matthew Lister. This document is headed Project Façade - Criminal enquiry into abuse of the TOEIC, Colwell College, Leicester. This is the college at which the appellant took the TOEIC English language test.
41. In relation to the College the report contains the following information:

Colwell College, Leicester

10. The criminal enquiry at Colwell College, Leicester has revealed the following.

11. Between 18/10 2011 and 15/01/2013, Colwell College undertook 2901 TOEIC speaking and writing tests of which ETS identified the following:

Invalid 1559
Questionable 1342
not withdrawn (no evidence of the invalidity) 0
percentage invalid 53%

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. ETS conducted two audits. An audit that took place on 15/01/2013 revealed that the ETS employed invigilator had been kept out of the test room by Colwell College employees while the preparation and identification phase of the speaking and writing test took place.

14. A very high average listening and reading score of 887 was recorded for 60 candidates that took the test on 15/01/2013. The highest score available is 985.

15. Analysis of telecom devices that belong to one of the test centre directors has revealed five names and telephone numbers alongside the word “pilot” in the contact list.

16. Voice analysis showed evidence of cheating was widespread. Of the ETS voice samples compared with the voices of candidates that had been interviewed under caution, none were the same suggesting that “pilots” had taken the test on their behalf.

42. The report concludes with the following in bold font: To note: this is an ongoing criminal investigation and to reveal further information regarding it may prejudice future prosecutions.
43. What the data contained in the report annexed to the statement of Matthew Lister shows, which is of considerable interest, is that 25 individuals took the test on the relevant morning, which it is reasonable to accept falls within the range of those the appellant indicated took the test with him on the day. It is not being suggested there was more than one test run at the same time at the Colwell College or that there was more than one set of tests being run. The results of all test taken have been found to be “invalid” or “questionable”. In relation to the afternoon, 36 students took the test whose results have been found to be “invalid” or “questionable”.
44. This is a case in which there is a considerable amount of information provided by the Secretary State which supports a finding of wholesale fraud conducted at the relevant date at the Colwell College. Out of 2901 speaking and writing tests taken at the College between the stated period 53% were invalid and 46.26% were questionable. According to the statistical information therefore none of the TOEIC tests taken in this period were accepted as being prime face invalid tests.
45. On the day the appellant took the tests 61% were found invalid and the balance questionable, according to the respondent’s evidence, which accords with the assessment of the much wider sample group for the period 18 October 2011 to 15 January 2013.
46. There also remains unanswered the question of why, in relation to a college teaching English in Birmingham to people who lived in Birmingham, it was felt necessary for the test to be taken in Leicester. Even if that was a matter arranged by the appellant’s sponsoring college in which he was not involved, this case is about what occurred when he got to Leicester.
47. Even if the appellants evidence was to be taken at face value, that he took the test himself and had not cheated, the impact of that would only be to pass the burden back to the Secretary of State. In light of the weight of the evidence relied upon by the Secretary of State I find that on the balance of probabilities it has been established that it is more likely than not that the appellant’s results achieved at Colwell College in the speaking and writing tests for the TOEIC certificates marked in the Secretary of State’s evidence as “invalid” were achieved as a result of the use of proxy to take the test and/or impersonation. This is not a matter in which ETS marked the appellant’s test results as “questionable” which, per the evidence, refers to results where a test taker should be retested due to administrative irregularities. The voice sample of the appellant’s test was recognised by the computerised software, and subsequent human checking, as having appeared on recordings of other individuals sitting the TOEIC tests.
48. In relation to the second head of the challenge, that relating to Article 8 ECHR, it was conceded by Mr Mills that as the appellant’s children are British nationals, and considering the Secretary of States published policy not to remove British national children from the United Kingdom, the appellant is entitled to succeed with this element of the appeal pursuant to paragraph 117B(6) of the Nationality, Immigration and Asylum Act 2002. The appeal is accordingly allowed on this basis only.

Decision

49. The First-tier Tribunal Judge materially erred in law. I set aside the decision of the original Judge. I remake the decision as follows. This appeal is allowed on Article 8 ECHR grounds only.

Anonymity.

50. The First-tier Tribunal did not make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

I make no such order pursuant to rule 14 of the Tribunal Procedure of the (Upper Tribunal) Rules 2008.

Signed……………………………………………….
Upper Tribunal Judge Hanson

Dated the 7 April 2017