Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/36845/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 27 February 2017
On 13 March 2017

Before

UPPER TRIBUNAL JUDGE MCGEACHY

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Qingguo Zheng
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr C Thomann, of Counsel, instructed by the Government Legal Service
For the Respondent: Mr D Jones, of Counsel, instructed by Messrs Lu Oliphant Solicitors LLP

DECISION AND REASONS
1. The Secretary of State appeals with permission against a decision of Judge of the First-tier Tribunal Boardman, who, in a determination dated 20 October 2015, allowed the appeal of Mr Qingguo Zheng against a decision of the Secretary of State, made on 12 September 2014, to cancel his leave to remain.
2. Although the Secretary of State is the appellant before me I will for ease of reference refer to her as the respondent as she was the respondent in the First-tier Tribunal. Similarly I will refer to Mr Qingguo Zheng as the appellant as he was the appellant in that Tribunal.
3. The appellant is a citizen of China born on 20 June 1973 who first arrived in Britain in 2008 with a work visa to work as a chef in a Chinese restaurant. On 19 November 2013 he was granted indefinite leave to remain. That grant followed an application made with which he had included certificates showing that he had passed the Test of English as a Foreign Language (TOEFL) tests administered by Educational Testing Services (ETS).
4. He travelled to China the following year and on return, on 5 August 2014 he was stopped by an Immigration Officer at Heathrow because it was believed that he had used a proxy test taker and that therefore he had submitted false English language certificates. The reason that the Immigration Officer believed that that was the case was because of information provided by ETS, who had examined a large number of recordings and had ascertained that on many occasions a proxy test taker had been used in that the same person had taken a number of the tests on behalf of applicants. The procedures used by ETS are set out in the affidavits of Rebecca Collings and Peter Millington which were served prior to the hearing in the First-tier.
5. Moreover the Immigration Officer also had before him a printout of the relevant section of the ETS “Lookup Tool database”, which set out the results of the tests sat by the appellant.
6. The appellant was interviewed at some length. He said that he had taken a two year English course in Finsbury Park, describing the place where he had undertaken the course as the Callan School in Oxford Street.
7. He stated that he had taken the test in Lewisham but could not remember the test centre and that he had received the certificate straight away.
8. In his second interview he stated that he had never studied in Britain but that he had learnt English through a private tutor because he liked to learn and that part of the requirements of his work visa was that he had to go to an English school. He stated that the English test was not a requirement of the visa and then said that he had had to talk English to apply for the extension of stay. He then said that he had not taken an exam in 2011 but had taken an exam in 2012.
9. Asked about the TOEIC certificate he said that he had taken the exam at King’s Cross College. Asked if he could speak English he replied “just a little”. Up to this point the interview had been conducted in Mandarin and at this stage the applicant was asked if the rest of the interview should be conducted in English. He stated that he did not want to do that.
10. He denied that someone else had taken the test. He was asked how he had found out about the school he had studied at. He said he thought that it was in Hampstead but did not know the name of the place but he had been trained to complete the test. In answer to further questions he stated that everyone where he worked spoke Chinese and therefore he had no reason to speak English and when asked how English would benefit him he replied “to go shopping”.
11. A detailed Explanatory Statement was prepared for the appeal. It set out the reasons for the appellant being interviewed at Heathrow, the procedures for the English language tests which are provided by ETS and the ways in which the abuse of the tests had become evident. It was stated that the ETS “Lookup Tool” had shown that the appellant had obtained test certificates as a result of tests purportedly taken by him at Queensway College on 11 December 2012 and 9 January 2013 and that ETS had declared the result of the test to be invalid. A printout of the ETS record was attached. It was pointed out that the appellant had required a Mandarin interpreter when he was interviewed and that he had stated that he had never studied formally in Britain but had hired a private tutor in order to learn English and that he needed to speak English for his employment. It was pointed out that the appellant had said that he had taken the test at King’s Cross College when in fact the tests were not taken.
12. It was noted that the appellant had said that everyone spoke Chinese where he worked and therefore he did not have any reason to speak English but he had tried to learn English so that he could go shopping. It was asserted that at interview he had given no coherent account of ever having taken a TOEIC test. Because the appellant’s results had been considered to have been obtained fraudulently a decision had been made to revoke his indefinite leave to remain.
13. The appellant’s solicitors then corresponded with ETS and Messrs Jones Day, ETS’s solicitors in England, obtained copies of the test recordings and those were given to an Elizabeth McClelland, who is a forensic voice and speech analyst. She stated that the voice on the recordings was not that of the appellant.
14. The appeal came before Judge Boardman on 19 October 2015. He submitted a lengthy and detailed determination of 23 pages although less than two pages make up his findings, conclusions and his reasons for his conclusions. The judge set out in paragraph 5 the evidence attached to the Explanatory Statement and the chronology of the appellant’s various interviews and his immigration history. He noted that the ETS Lookup Tool indicated that the appellant had obtained test certificates numbers 0044202544008013 and 0044202705016061 as a result of tests purportedly taken by him at Queensway College on 11 December and 9 January 2013 and that ETS had declared the results to be invalid.
15. He then noted the appellant’s responses at interview, and, having set out the burden and standard of proof, noted that the TOEIC certificate 0044202705016061 dated 9 January showed a speaking score of 180 out of 200 at proficiency level 7 with pronunciation high as was intonation and stress. He noted that that score related to a test taker who could create connected sustained discourse appropriate to the typical workplace, express opinions or respond to complicated requests effectively and in extended responses might show some weaknesses in that he might have minor difficulties with pronunciation, intonation or hesitation and some errors when using complex grammatical structures and some imprecise vocabulary.
16. That certificate had also shown a writing score of 150 out of 200 at proficiency level 7 and stated that, typically, test takers at that level could effectively give straightforward information, ask questions, give instructions or make requests, were only partially successful when using reasons, examples or explanations to express an opinion and when attempting to explain an opinion their writing would present relevant ideas and some support.
17. He then referred to a test certificate, identification number 20690415, which was in the name of the appellant and was dated 6 December and stated that that showed a listening score of 360 out of 495, which showed that the applicant could infer the gist, purpose and basic context based on information as explicitly stated in short spoken texts at 81%, could infer the gist, purpose and basic context based on information that was explicitly stated in extended spoken texts at 90%, could understand details in short spoken texts at 61% and could understand details in extended spoken texts at 76%. Moreover the certificate showed a reading score of 385 out of 495 with considerable reading abilities.
18. The judge noted a statement from the appellant, who had said that he had wanted to study English to fit in here and that he had taken up lessons with Xavier Fernandez, who taught him at least twice a week on average from February 2012 to July 2013 and that he had wanted to reach the equivalent of level B1 and Mr Fernandez had thought that he was capable of sitting that exam. The appellant said that he had sat a TOEIC test at Queensway College on 6 December 2012 and that he had then been asked to re-sit his speaking and writing test because his grade was too low and had done so on 9 January 2013.
19. The judge had before him a statement from Xavier Fernandez dated 6 March 2015 who said that he was a qualified teacher of English as a foreign language and had a degree in English literature and also TESOL and TEFL certificates. He said that he had taught the appellant English from February 2012 to July 2013 and they had met, on average, twice a week and covered a variety of aspects including grammar, vocabulary, use of vocabulary and oral and written communication. The appellant had told him that he had booked an English test and was aiming to reach the equivalent of level B1 and that he had worked to assist him to achieve the best possible grade. He considered that the appellant was of good character. The appellant had also prepared a statement commenting on the letter from Messrs Jones Day, who had said that they had provided a voice recording from 11 December 2012 and that the test had been taken on that date and not on 6 December. The appellant said that that was incorrect as he had taken the listening and reading test on 6 December and had submitted the certificate to the Home Office. He also said that he had taken the speaking and writing test on the same day and had not taken any tests on 11 December 2012. He said that the recordings which he had listened to were not his.
20. The appellant went on to say that he had not received a certificate for the speaking and writing tests which he had sat on 6 December and said that whereas Messrs Jones Day had stated that the speaking and writing test taken on 11 December was one at which the maximum grades had been obtained that that confirmed that that was not his test as the college had told him that he had not passed it at that time. He said that he had re-sat the test on 9 January 2013 resitting both the speaking and writing exams. Again, the recording from that date was not his. He had said that he had little time to practise English because he worked as a chef. He had produced a certificate from the Callan School of English and confirmed that he had reached stage 7 of the Callan method, which was at the higher end of the CEFR B1 level.
21. The appellant started giving his oral evidence to the judge in English but the judge found that it was difficult to understand him and therefore the appeal had been continued with the evidence being given through a Mandarin interpreter. The appellant said that he had been nervous when he had returned to England and had been interviewed by the Immigration Officer. It was put to the appellant by the Presenting Officer that his limited English at the hearing did not correspond with the score of 180 out of 200 and the speaking proficiency level which he had had in the test taken on 9 January 2013. The appellant replied that the questions in the English test had been put simply and in a straightforward manner and that his coursework with Mr Fernandez had been similar to the tests.
22. A comment made by Ms McClelland in her report that the appellant’s ability to use English intonation patterns was “only basic” was put to him as it was suggested that that was inconsistent with the assessment of his intonation level as “high” in the certificate dated 9 January. The appellant replied that his English had deteriorated since passing his life in the UK test.
23. He said that he had not received any certificates immediately after sitting the tests on 6 December and then the college had told him that he had not passed the test and he had arranged to re-sit the test on 9 January.
24. It was put to him that there had been a discrepancy in his answer at interview when he had said that the part of the test in which he was strongest was writing when the fact was that in the certificate dated 9 January the mark was higher in speaking than writing. The appellant merely said that his impression was that his writing was better as had been shown in his coursework with Mr Fernandez. It was also put to him that he had said that he had been trained in Hampstead and his evidence that a private tutor had done so, and the appellant then said that he had had both.
25. Lengthy submissions were made by the Presenting Officer, Mr Kandola, as well as by Mr Jones, who sought to undermine the reliability of the evidence put forward by ETS.
26. In paragraphs 82 onward the judge said that he considered that the burden of proving that the appellant had made false representations or submitted false documents lay on the respondent and had not been discharged. He then made various findings which are, of course, the central issue in this appeal. In effect the grounds of appeal before me argue that the judge had misunderstood the evidence and indeed the Secretary of State’s position which was that the appellant had never sat an ETS English language test and that he must have had a proxy to sit the test for him and that the decision was irrational and perverse. That was the position that was elaborated by Mr Thomann at appeal. It was argued that the judge had misunderstood the mechanism by which test results were marked and results communicated and indeed the very small percentage of cases in which it was likely that there would be an error by ETS. It was argued that the assertions of the appellant that he had somehow lost his ability to speak English because of lack of use was simply not credible given the high scores which had been obtained and that the judge had misunderstood the notification process whereby an appellant was told whether or not they had passed or failed the test. Moreover, there were inconsistencies in the appellant’s evidence.
27. It was pointed out that the Mr Fernandez had not given evidence in support of the appellant and that if what he had said was true it would be impossible for the appellant to have lost his ability to speak English between the tests being taken and his being interviewed at Heathrow.
28. Mr Jones argued that, in effect, the judge had reached conclusions which were open to him having considered the evidence. He had properly applied the relevant standard of proof placing the burden on the respondent and his conclusions were open to him. He pointed out that there had been considerable judicial criticism of ETS.
Discussion
29. Both representatives referred to relevant case law which refers to evidence in ETS cases. In particular I take into account the determination of the Tribunal in SM and Qadir [2016] UKUT 229 (IAC) and MA (ETS - TOEIC testing) [2016] UKUT 450 (IAC). The reality is that having heard evidence from Professor Harrison and later from Professor French the Tribunal has concluded that it can only be in a very small number of cases indeed that there would be error in the ETS testing procedures and that in the vast majority of cases the burden of proof lying on the respondent to prove deception would be discharged. The evidence of an appellant that he had genuinely taken and passed the test may only, in a small number of cases be sufficient to unseat the conclusion that deception had been used.
30. The reality is that what is alleged by the respondent in this appeal before me is that the judge effectively did not understand the procedures used by ETS and that his decision was perverse.
31. I therefore return to paragraph 83 of the determination. At subparagraph e. the judge refers to the certificate dated 11 December and to the voice recording for that certificate. He states that he places weight on the fact that Ms McClelland concluded that the voice on the recording of that date was not that of the appellant. He appears to misunderstand that that of course is the Secretary of State’s case – that a proxy test taker took the test and not the appellant.
32. He then goes on to state that the respondent had not provided a copy of the certificate referred to and had not provided any other evidence of the appellant having taken the test on 11 December 2012. He misunderstands the procedure. It is not for the respondent to produce the certificate. The certificate is not sent to the respondent. It is sent to the test provider, in this case, Queensway College, who then communicates with the applicant. The respondent cannot provide evidence of the appellant having taken a test – that is not evidence which the respondent would hold.
33. While the judge correctly states that ETS do not keep copies of the certificates the judge then goes on to say that he accepts Mr Jones’ submission that if the appellant had obtained a certificate on 11 December there would be no need for him to take a test on 9 January. That, of course, is mere supposition. There can be many reasons no doubt why a second test is taken and there is evidence from ETS that that test was taken.
34. The judge then went on to state that considering the evidence in the round he was not persuaded that the appellant sat a test on 11 December. That flies in the face of all the evidence produced by ETS in the Lookup Tool which refers specifically to the appellant having taken a test on that day and the results of that test. It is simply not possible for the judge merely to ignore the evidence that was provided from ETS without explanation.
35. The judge then went on to state that as ETS had asserted that the appellant had taken a test on 11 December 2012 that would cast serious doubt on and undermine the reliability of the assertion about the invalidity of the test certificate dated 9 January. Again he does not give a reason for that assertion.
36. He then refers to the appellant’s evidence that he had taken a listening and reading test on 6 December but that ETS had asserted that he had not done so. He rejects the evidence from ETS that there was no evidence that the appellant had taken the test on 6 December because no evidence had been submitted by the respondent or ETS that a test had been taken on that day. In effect what the judge is doing is asking the respondent to produce evidence of the appellant taking the test. That is, he is asking the respondent to produce evidence of something that did not happen and the Secretary of State had never asserted had happened: it was the appellant who said that he had sat a test on 6 December.
37. The judge then went on to say that the appellant had given consistent evidence that on 6 December he had not only sat a listening and reading test but also a speaking and writing test and that he had passed the former and failed the latter and therefore had re-sat again on 9 January but the reality is that had the appellant sat a test on 6 December and failed, and been told that he would have to re-sit the test on 9 January then it would be the appellant who would have evidence that he had failed the first test and not the respondent.
38. The judge then went on to consider the certificate of 9 January and again placed weight on the fact that Ms McClelland had stated that the recorded voice was not that of the appellant. He states:-
“However, the mere absence of the production by ETS of a voice recording for the appellant on 9 January 2013 does not persuade me, in the context of the undermining, as I have found, of the reliability of ETS’s assertions, that the appellant did not sit the speaking and writing test on that date, or that his certificate for that date is invalid, in that I find that the appellant’s evidence that he sat the speaking and writing test again on 9 January 2013 is:
consistent throughout his evidence and persuasive
consistent with ETS’s confirmation that its records show that ‘the appellant did indeed take a second (re-sit) speaking and writing test on 9 January 2013 at Queensway College’ (Jones Day’s letter paragraph 6.3)
consistent with the photograph on the front of the certificate, which I accept is of the appellant.”
39. Again the judge is in error in that he misunderstands the respondent’s position which is that a proxy took the test on 9 January.
40. I would add that the issue of the photograph on the front of the certificate is a matter of contention in that when that photograph was put to the appellant at interview he did not recognise the person in the photograph, merely saying that it was someone who looked like him.
41. The judge then went on to consider the respondent’s argument that the appellant’s English language ability during the port interviews and at the hearing before him was not up to the standard of the English language ability shown in the certificates and states that he finds that the ability of the appellant to speak English when he sat the exams was consistent with the assertion by Mr Fernandez and that it had deteriorated because he spoke Chinese at work. He suggested that that was a plausible explanation.
42. He went on to say that he accepted that the appellant would have been likely to have been intimidated during the port interviews and therefore it was unsurprising that he had then elected to communicate in Mandarin and similarly that at the hearing before him his standard of English was not any indication of the standard of English ability that he had had on 6 December 2012 and 9 January 2013. Moreover he considered that that assertion did not support the contention of the respondent that the appellant had not taken and passed the reading and writing tests as he had claimed.
43. The standard of English attained in the tests taken in December 2012 and January 2013 was of such a high level, has been indicated by the level obtained which the judge himself had illustrated in the determination (paragraphs 15 through 17 above) that it is simply not credible that within a year the appellant would have somehow lost the ability that he had had in January 2013 and moreover that, having undertaken a further course of study he would not be in a position to communicate at the appeal. I consider indeed that that conclusion is perverse. I would add that there were inconsistencies in the appellant’s evidence both with regard to the reason why he wished to learn English, whether it was for work or merely to go shopping, where he had studied let alone his confusion as to where the exams had been taken, whether at “King’s Cross” or Queensway College.
44. I consider that the conclusions of the judge are simply not based on an adequate analysis of the evidence and that his conclusions are perverse and for that reason I set aside the determination of the First-tier Judge. It is appropriate that the appeal now proceed to a hearing afresh in the First-tier.

Decision
This decision of the Judge in the First-tier is set aside.

Directions
1. This appeal is remitted to the First-tier Tribunal for a hearing afresh.
2. Time two hours.
3. Mandarin interpreter.

Signed Date

Upper Tribunal Judge McGeachy