Tribunal decisions

The decision

IN THE UPPER TRIBUNAL

JR/970/2016

Field House,
Breams Buildings
London
EC4A 1WR

26 June 2017

Before

UPPER TRIBUNAL JUDGE pitt

Between

Fakir [E]

Applicant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent
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Mr Z Malik, instructed by Mayfair Solicitors appeared on behalf of the Applicant.

Mr E Metcalfe, instructed by the Government Legal Department appeared on behalf of the Respondent.

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APPLICATION FOR JUDICIAL REVIEW

JUDGMENT

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JUDGE pitt:
1. This is a judicial review of a decision dated 27 October 2015 which revoked Mr [E]'s indefinite leave to remain. The respondent made the decision under Section 76(2) of the Nationality, Immigration and Asylum Act 2002 on the basis that Mr [E] had obtained his indefinite leave to remain by deception. The alleged deception here is the use of a proxy in ETS TOEIC speaking tests taken on 22 February 2012 and 21 March 2012.
Background
2. Mr [E] came to the UK from Pakistan on 5 February 2004 with entry clearance as a student valid until 31 August 2005. His leave was extended by the Secretary of State on a number of occasions and until 10 April 2015.
3. Mr [E] took a TOEIC test in early 2012. It is common ground that the listening and reading components were taken on 7 February 2012. The speaking and writing components were taken on 22 February 2012 but a score of only 140 obtained in the speaking element. The test was retaken on 21 March 2012 and the necessary scores obtained on that occasion. The TOEIC certificate from those tests was used in an application for leave on 31 March 2012 and Mr [E] was granted further leave until 10 April 2015.
4. Mr [E] then made an application for indefinite leave to remain on 14 February 2014. The Secretary of State granted him indefinite leave to remain on 22 May 2014.
5. Mr Elashi proceeded to make an application for naturalisation as a British citizen on 22 May 2015. On 27 October 2015 the respondent made the decision of 27 October 2015 now under challenge. The naturalisation application was refused on 21 January 2016.
6. The respondent's decision of 27 October 2015 states as follows:
"REASONS FOR REVOCATION
A decision has been made to revoke your leave so that it expires with immediate effect. The following reasons are given:
In your application dated 31-Mar-2012, you submitted a TOEIC certificate from Educational Testing Service ("ETS").
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 tests taken on 22-Feb-2012 & 21-Mar-2012 at New College of Finance have now been cancelled by ETS. On the basis of the information provided to her by ETS, the SSHD is satisfied that your certificate was fraudulently obtained and that you used deception in your application of 31-Mar-2012.
At the time you took your test, as you will have been aware, ETS was an approved provider of Secure English Language Tests (SELT) for UK immigration purposes. Its role as a SELT provider was to help ensure that those who seek to enter or remain in the United Kingdom are able to speak English. As recognised in paragraph 117B(2) of the Nationality, Immigration and Asylum Act 2002, those who can speak English are less of a burden on taxpayers and are better able to integrate into society.
As stated above it is now known that you submitted a fraudulently obtained TOEIC certificate for your application of 31-Mar-2012. You were then subsequently granted Indefinite Leave to Remain on the 22-May-2014 on the basis of your length of residence in the United Kingdom for which you would not have qualified for had your deception been known. Your complicity in the fraud contributed to an extremely serious attack on the maintenance of effective immigration controls and the public interest more generally.
Accordingly, I am satisfied that you have employed deception to gain leave in the United Kingdom through the submission of the TOEIC certificate in your T4 - General Student - LTR application. This means that you have not gained your leave lawfully and therefore you have fail (sic) to accrued (sic) 10 years of lawful residence to qualify for the grant of Indefinite Leave to Remain on 22-May-2014. As you have used deception in gaining your indefinite leave to remain it has been revoked under Section 76(2) of the Nationality, Immigration and Asylum Act 2002."
7. The applicant sent a pre-action protocol letter on 3 November 2015. The respondent issued a pre-action protocol response on 24 November 2015 maintaining the original decision. On 27 January 2016 the applicant issued these proceedings.
8. On 25 April 2016 Upper Tribunal Judge McWilliam granted permission to appeal on the papers. On 10 June 2016 Upper Tribunal Judge Allen issued a direction staying the matter behind the outcome of the cases in MA (ETS - TOEIC testing) [2016] UKUT 00450 (IAC), R (On the application of Saha and Another) v SSHD (Secretary of State's duty of candour) [2017] UKUT 00017 (IAC) and R (On the application of Mohibullah) v SSHD (TOEIC - ETS - judicial review principles) [2016] UKUT 00561 (IAC). After the conclusion of those cases, the application was listed for hearing.
The Law
9. Section 76(2) of the Nationality and Immigration Act 2002 states as follows:
(2) The Secretary of State may revoke a person's indefinite leave to enter or remain in the United Kingdom if -
(a) the leave was obtained by deception.
10. It was common ground that, following R (Abbas) v SSHD [2017] 4 WLR 34, the question of whether the applicant obtained his indefinite leave by deception, and therefore the lawfulness of the s.76 decision, is one of precedent fact for the Upper Tribunal to decide.
11. As there was agreement on this point, the other grounds were not pursued; see paragraph 9 of Mr Malik's skeleton argument, confirmed at the hearing.
12. R (Abbas) v SSHD sets out at [7] the following principles to be followed in precedent fact cases concerning an allegation of deception:
"7.
?
? The legal burden of proving that the Claimant used deception lies on the Secretary of State albeit that there is a three stage process. The Secretary of State first must adduce sufficient evidence to raise the issue of fraud. The Claimant has then a burden of raising an innocent explanation which satisfies the minimum level of plausibility. If that burden is discharged, the Secretary of State must establish on a balance of probabilities that this innocent explanation is to be rejected.
? There is one civil standard of proof (which is the standard to be applied). The seriousness of the consequences does not require a different standard of proof but flexibility in its application will involve consideration of the strength and quality of the evidence. The more serious the consequence, the stronger must be the evidence adduced for the necessary standard to be reached. "
13. There was agreement before me that the respondent had adduced sufficient evidence to meet the initial evidential burden of showing fraud. She relies on information from ETS showing the applicant's speaking and writing components taken on 22 February 2012 and 21 March 2012 as invalid. Further, the applicant does not dispute that the tape recording provided for the test registered as having been taken by him has someone else's voice on it.
14. The oral evidence and submissions at the hearing focussed mainly on the balancing of the respondent's evidence against that of the appellant, the third stage identified in R (Abbas) v SSHD but as there was no express concession from the respondent as to whether Mr [E] had met the burden of providing an innocent explanation, I should address that stage also. His case is that there must have been a "mix-up" either at the college where he took the test or in the ETS systems. He provided witness statements asserting that he took the speaking tests himself and provided some details of what happened on the days that he attended the test centres. He provided evidence of his English language test results and educational achievements in the medium of English to support his assertion that he had no need to use a proxy. I was satisfied that he had put forward materials that met the evidential burden on him to provide an innocent explanation.
15. When assessing whether the respondent has established that Mr [E]'s innocent explanation should be rejected I applied the civil standard of proof, in line with the comments of Mr Justice William Davis in R (Abbas) v SSHD, set out above. As indicated in a number of the reported ETS cases, for example SM & Qadir at [102], and R (Abbas) v SSHD at [26], each decision on whether someone used a proxy in a TOEIC speaking test is fact sensitive.
16. When making my decision I bore in mind the factors with potential relevance to the legal burden set out in [69] of SM and Qadir v SSHD (ETS - evidence - burden of proof) [2016] UKUT 229 (IAC), approved by the Court of Appeal in Majumder and Qadir v SSHD [2016] EWCA Civ 1167 at [18]. The factors set out at [69] of SM and Qadir are as follows:
"We turn thus to address the legal burden. We accept Mr Dunlop's submission that in considering an allegation of dishonesty in this context the relevant factors to be weighed include (inexhaustively, we would add) what the person accused has to gain from being dishonest; what he has to lose from being dishonest; what is known about his character; and the culture or environment in which he operated. Mr Dunlop also highlighted the importance of three further considerations, namely how the Appellants performed under cross examination, whether the Tribunal's assessment of their English language proficiency is commensurate with their TOEIC scores and whether their academic achievements are such that it was unnecessary or illogical for them to have cheated."
The Evidence
17. At the outset of the hearing, both parties were in agreement that all of the evidence on which both side sought to rely on should be admitted regardless of any non-compliance with directions. Given that agreement I extended time for all materials provided by the beginning of the hearing to be admitted.
18. During cross-examination, Mr Metcalfe sought to admit a further document concerning the weather conditions on the days of the tests that Mr [E] maintained he took the TOEIC tests. Where a party is entitled to know the case against him at the outset and in light of the generous approach to late evidence already taken at the outset of the hearing, I declined to admit this last piece of evidence.
19. The applicant relied upon:
Skeleton argument
Bundle comprising 320 pages set out in Tab A -Tab D
Bundle of authorities comprising 256 pages set out in Tab A-Tab L
Second witness statement dated 12 June 2017 of Mr [E]
Letter from ETS (undated)
Emails from May 2015 between the applicant and ETS and lawyers for ETS
Affidavit of Usman Ali dated 13 June 2017
Companies House entry for London School of Management and Development Studies and New College of Finance
20. The respondent relied upon:
Amended detailed grounds of defence
Skeleton Argument
Voice Recording from ETS test taken by applicant
Witness statement of Rebecca Collings
Witness statement of Rebecca Collings dated 23 June 2014
Witness statement of Peter Millington dated 23 June 2014
Report of Professor Peter French dated 20 April 2016
Report of Witness statement of Richard Heighway of Kroll Ontrack dated 26 July 2016
Witness statement of Rachel Green dated 27 March 2017
Witness statement of Mr Richard Green dated 23 June 2017
Discussion
21. The respondent's evidence on the wide scale use of fraud in ETS cases has become more cogent as time has passed. The President of the Upper Tribunal recognised this in MA at [11]-[18] and [45]-[46]. The witness statements and oral evidence of Ms Collings and Mr Millington from 2014, found wanting in SM & Qadir and the concerns raised by Dr Harrison's evidence in that case have been addressed in later cases by the evidence of Professor French and Mr Heighway of Kroll Associates, amongst others.
22. The respondent relies here on the report of Professor French dated 20 April 2016 at [214] of the bundle as highly probative evidence on the reliability of the information on invalid or questionable tests provided by ETS. The respondent also relies on the report dated 26 July 2016 of Richard Heighway of Kroll Associates which addressed the applicant's case that his real speaking test had not been submitted and someone else's voice used. This is addressed specifically and rejected as at all likely at 2.1.4 b and 244 of Mr Heighway's report.
23. Also, the information provided by Rachel Green in her witness statement of 27 March 2017 indicates that all of the speaking tests taken at the applicant's test centre on 22 February 2012 and 21 March 2012 were either invalid or questionable suggesting, in the context of the respondent's other documents, very strong evidence of TOEIC corruption at that test centre.
24. The respondent's case on the robustness of the ETS information is undoubtedly strong but does not provide a complete answer, however. Each case must be considered on the full merits and, as identified at [47] of MA identified at [47] some uncertainties remain in the respondent's generic evidence.
25. There is a specific, potentially problematic feature in the material relied upon by the respondent here. The invalid test outcomes set out in the respondent's evidence and commented on in the statement of Ms Green refer to Mr [E] taking the tests on 22 February 2012 and 21 March 2012 at New College of Finance (NCF). It was conceded for the respondent that the applicant had never studied at NCF and did not apply to take a TOEIC test there but had taken the test via the London School of Management and Development Studies (LSMDS).
26. This discrepancy is addressed in the witness statement dated 23 June 2017 of Mr Richard Green. He states as follows:
"5. This witness statement is intended to assist the Court in response to the suggestion by Mr [E] that the London School of Management and Development might not be the same place as the college recorded as New College of Finance on the look up tool.
?
7. This ETS look-up tool illustrates the information available to the SSHD at the point that a decision was made on the Applicant's case. This is the information that was provided to the SSHD by ETS, which contains date regarding whether the test was valid, the certificate number, the Applicant's date of birth and the test centre.
8. In order to rationalise the data for ease of use, specifically when counting the number of educational establishments involved, PRAU made an amendment to the date that was used in the lookup tool. This amendment was based on a response given by ETS that confirmed that two establishments were the same despite the data showing them with different names.
9. The original data provided by ETS came in two forms. One was a list of test taken at a specific test centre, the other was a summary count of tests taken at each test centre. The summary data had LSMDS listed, but the individual test data had two test centres included: LSMDS and New College of Finance. The count of individual tests, for both centres, was equal to the summary date for New College of Finance. Therefore, I asked ETS whether New College of Finance/LSMDS is the same place or two separate centres. I annex an extract of the spreadsheet as Exhibit 1.
10. I was told that "Yes they are the same place." On that basis and to ensure that any aggregation undertaken would match the summaries as provided by ETS, a manual amendment, changing LSMDS to New College of Finance, was made to the live data that sits behind the Lookup Tool and was which was routinely used for our statistical analysis, such as the Transparency Publication.
11. The original data, as provided by ETS was archived, but is readily available to caseworkers if necessary and the amendment was noted by PRAU in case of any dispute.
12. In this case, it is right to indicate in the look up tool that both tests were taken at New College of Finance.
13. Since the information from ETS was provided, the SSHD has run analytical tests on the results of those tests at specified test centres, on specified dates. The information relating to the Applicant is taken from New College of Finance 22 February 2012 and 21 March 2012, explained by my colleague Rachel Green."
27. The core of the intended explanation appeared to me to be at [9]-[10]. I did not find them easy to follow. Mr Metcalfe summarised them thus: both LSMDS and NCF, accepted to be different organisations, used the same test centre to run TOEIC tests. The respondent put together the information from the tests taken by student registered with both colleges and identified them only as "NCF". This was for administrative reasons arising from the way in which the information had been provided by ETS. I accept, just, that this is the purport of Mr Green's statement and it provides a credible explanation for the reference to NCS on the applicant's invalid test result.
28. The applicant seeks to argue that this matter seriously weakens the respondent's case. I do not find that to be so. Firstly, the applicant accepts that he took the speaking and writing components on the two days identified in the Lookup Tool and that the invalid outcomes are logged against his name and date of birth and that the registration number is consistent through all the entries. The name of the college, NCF rather than LSMDS, is the only anomaly. The evidence from Companies House shows the two organisations being separate which is not disputed and those entries cannot be of assistance regarding the issue of the same test centre being used by both.
29. There were other aspects of the evidence which reduced the weight that could be placed on Mr [E]'s evidence. His first witness statement dated 22 January 2016 contained significantly less detail that the later statement dated 12 June 2017. He could have provided the same level of detail earlier but did not. It is not credible that he was able to remember so much more in 2017 than a year and half earlier in 2016.
30. Mr [E] maintains that he had no need to use a proxy as his English is more than good enough. At [33] of the bundle he provided an IELTS certification from 2003 with a score of 5.0. He went on to study successfully in the UK, obtaining an MBA degree from the University of Wales in 2013; see [39]. I heard him give his evidence in English and, albeit 5 years after the test was taken, he is clearly a very competent English speaker.
31. I accept that it is likely that in 2012 Mr [E] spoke English well enough to pass the TOEIC speaking test. As at [57] of MA, however, there are reasons why a competent English speaker may still use a proxy, including: "? lack of confidence, fear of failure, lack of time and commitment and contempt for the immigration system." Mr [E] accepts that he did need some form of English language test urgently as his leave was expiring on 31 March 2012. He indicates that he could not find anywhere to take an IELTS test and so went to LSMDS as an alternative as they had test dates available.
32. Mr [E] also relied on the affidavit of Usman Ali affirmed in Pakistan on 13 June 2017 but I did not find that much could turn on this. The statement is relatively brief and vague. Mr Ali does not attempt to attest that the applicant did attend and take the speaking and writing tests on 22 February 2012 and 21 March 2012. That would appear to be beyond his first-hand knowledge. He was not present for the evidence to be tested.
33. It is my conclusion that there is clear evidence of TOEIC corruption at the test centre used by LSMDS and NCF on the days that Mr [E] maintains he attended for the speaking test. Against that strong evidence, the Mr [E]'s case is undermined by the absence of any meaningful details capable of demonstrating that he took the tests himself in his first witness statement of 22 January 2016 and the more detailed information he did provide being in the main available to him from the day he undisputedly did attend the test centre, for the listening and reading test component.
34. For these reasons, I found that the respondent had met the legal burden of showing that the applicant used a proxy in the ETS tests taken on 22 February 2012 and 21 March 2012. It follows that she acted lawfully in finding that he obtained leave by deception in 2012 and that the decision to revoke indefinite leave to remain under s.76 of the Nationality, Immigration and Asylum Act 2002 is lawful.
35. The application for judicial review is refused.
Appeal to Court of Appeal
36. There was no application for permission to appeal to the Court of Appeal from the applicant. I am required to consider such an application following Rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008. I refuse permission to appeal to the Court of Appeal where the reasoning set out above is not show to contain legal error.
Costs
37. The applicant has not been successful, obtaining the remedy he sought and is to pay the respondent's reasonable costs, to be assessed if not agreed.
Signed: Dated: 18 July 2017
Upper Tribunal Judge Pitt

Applicant's solicitors:
Respondent's solicitors:
Home Office Ref:
Decision(s) sent to above parties on:
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If the Tribunal refuses permission, either in response to an application or by virtue of rule 44(4B), then the party wishing to appeal can apply for permission from the Court of Appeal itself. This must be done by filing an appellant's notice with the Civil Appeals Office of the Court of Appeal within 28 days of the date the Tribunal's decision on permission to appeal was sent (Civil Procedure Rules Practice Direction 52D 3.3).