JR/02940/2016
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The decision
IN THE UPPER TRIBUNAL
JR/2940/2016
Field House,
Breams Buildings
London
EC4A 1WR
Given orally at Field House: 21st april 2017
Before
UPPER TRIBUNAL JUDGE PETER LANE
Between
mr rajkumar mani
Applicant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
- - - - - - - -
Mr P Turner, Counsel, instructed by law Lane Solicitors, appeared on behalf of the applicant.
Miss S Broadfoot, QC, instructed by the Government Legal Department, appeared on behalf of the respondent.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
APPLICATION FOR JUDICIAL REVIEW
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
JUDGE PETER LANE: This is an application for judicial review by Mr Rajkumar Mani of the respondent's decisions of 27th November 2015 and 18th January 2016 to curtail his leave to remain in the United Kingdom. Permission to bring judicial review proceedings was granted on 24th May 2016 by Upper Tribunal Judge Jacobs.
1. The essential immigration history of the applicant is set out in the skeleton argument of Mr Turner, who appears for him. From that we see that the applicant, an Indian national, was born, he says, in 1978 and in 2010 entered the United Kingdom with leave as a student. His subsequent application for leave in that capacity was refused in 2013, but an appeal against that refusal was successful. In essence, it is said on his behalf that between March 2003 and June 2011 the applicant has been in the United Kingdom with various forms of leave to remain as a student.
2. On 27th November 2015 the defendant curtailed the applicant's leave on the ground that deception had been used in connection with an application. The refusal was said to be taken under paragraphs 323 and 322 of the Immigration Rules.
3. In January 2015, the respondent reconsidered her earlier decision and gave the applicant a further fourteen days leave to remain. This followed the respondent's acknowledgement that an incorrect paragraph had been cited in the earlier letter curtailing leave. On 18th January 2015, however, the applicant received a further letter from the respondent, which had the effect of curtailing those fourteen days with immediate effect.
4. The decision upon which both parties and the Tribunal concentrated is that of 18th January 2016. At page 60 of the bundle we find the operative part of that letter. It reads as follows:-
"For the purposes of your application dated 28 September 2012, you submitted a TOEIC certificate from Educational Testing Service ('ETS') to your sponsor in order for them to provide you with a Confirmation of Acceptance for Studies. According to information provided to the Home Office by ETS, you obtained a TOEIC certificate as a result of a test that you took at Portsmouth International College on 21 March 2012.
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. ETS have declared your test to be 'Invalid' due to the aforementioned presence of a proxy tester who sat the test in your place, and the scores have therefore 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."
5. The proceedings in this judicial review have not been entirely straightforward and need to be mentioned. Prior to what was originally fixed to be the date of the substantive hearing, that is to say 7th February 2017, there was communication between the parties' representatives. This communication can be traced, in part, in the bundle prepared by the applicant's solicitors and in part in three "clips", as the Tribunal describes them, of e-mails which have been supplied by Ms Broadfoot in connection with the hearing today. From this, we see that the Government Legal Department enquired of the applicant as to his intentions, prior to the date of the hearing. It emerged from that enquiry that the applicant was intent upon seeking a copy of the voice recording relating to the applicant's test. There was some discussion in submissions about the significance or otherwise of the details underlying the exchange of e-mails. For present purposes, however, it is necessary to say no more than that the applicant's solicitors eventually made contact and were supplied by the solicitors acting for ETS with a copy of the relevant recording.
6. Meanwhile, the respondent sought an adjournment of the Tribunal hearing of 7th February, which was granted by Upper Tribunal Judge Jordan. He made a decision regarding the costs of that hearing and also gave directions to the parties. These flowed from the respondent's intention to amend the detailed grounds of defence so as to make reference to certain material to which I will turn in due course. Those amendments were made on 6th March 2017. The applicant, for his part, was given until 4th April 2017 to file amended grounds of application and supporting evidence. It is of some significance, Ms Broadfoot says, that no such amended grounds were filed.
7. As I have said, the outcome of the request by the applicant to be supplied with the voice recording is that such a recording was supplied. That led to a supplemental statement being filed by the applicant, in which he took issue, amongst other things, with the fact that the recording had been made available, even though it emerged from evidence filed by the respondent that, typically, such recordings were only held for a period of 999 days.
8. I shall return to that issue and its significance or otherwise in due course. For the moment however, it is necessary to look at the submissions made by the parties.
9. Mr Turner's case is that the passage from the decision letter to which I have just made reference is legally insufficient to constitute a valid decision in the circumstances of this case, concerning as it does an allegation of dishonest conduct. Mr Turner submits that the passage does not constitute evidence. He accepts without, however, making any concessions as to the culpability or otherwise of the applicant, that the respondent has in her amended grounds and the materials accompanying them, subsequently done, to paraphrase a "better job". But none of that, according to Mr Turner, can breathe life into or otherwise validate what he says are legally flawed decisions. Mr Turner points out that the courts on a number of occasions have counselled against treating judicial review as a kind of rolling process. Concentration must always be placed upon the decision which is the subject of the challenge.
10. For her part, Ms Broadfoot takes the respondent's case in the following way. First, she submits that the decision, and in particular the passages to which I have made reference, is not in any way legally flawed. The passage that one finds at page 60 of the bundle, where the extract from the letter of 18th January is set out is, Ms Broadfoot says, evidence in its own right. It is evidence that the respondent was entitled to rely upon. There is no evidence adduced on behalf of the applicant to say that this passage is in any sense some kind of "cut and paste" device.
11. In support of this primary submission, Ms Broadfoot prays in aid the evidence of Rebecca Collings, which we find at page 154 of the bundle. This statement, by an officer of the respondent, is, significantly, dated 23rd June 2014. In other words, it pre-dates by some measure the decisions which are the subject of the present proceedings. It describes the actions of the respondent that followed the broadcast of the Panorama programme in early 2014, which demonstrated significant problems regarding the testing of immigrants in the English language in the United Kingdom. Indeed, it is fair to say that the evidence looked at in the programme demonstrated that fraud on a wide scale appeared to be being committed. What was happening in many cases was that the formal English tests of candidates were not being answered by those candidates, but instead by proxies on their behalf. Thus we see at paragraph 28 of Ms Collings' statement that ETS said any tests categorised as "cancelled" - which later became known as "invalid" - were ones which had the same voice for multiple test takers. According to Miss Collings, on questioning by the respondent, ETS advised that "they were certain there was evidence of proxy test taking or impersonation in those cases". That is of significance in the present case because the applicant's test is described as being invalid.
12. There follows in the statement an explanation of the distinction between invalid tests and those categorised as "questionable". There is then a paragraph relied upon by Ms Broadfoot:-
"34. A significant data matching process was commenced to take the results from ETS and match them (or not) to actual individuals with leave already granted or with applications pending. From this, we were able to segment the results into a series of categories (including, for example, pending application with an invalid result, pending application with a questionable result) and make detailed plans for handling the cohorts, recognising though that each case needed careful individual consideration to ensure the right outcome be reached."
13. In the statement of Rachel Green, which followed in the wake of the amended grounds of defence, we see reference to other matters that are germane, in the sense that they relate to a period in time relevant to the decision-making in the present proceedings. In paragraph 6 we find the following:-
"In a witness statement for the case of SM & Qadir, dated 3 February 2016, my colleague Richard Green in the Performance Reporting & Analysis Unit (PRAU) also within the Home Office, confirmed how the evidence of an invalid TOEIC test result provided to the Home Office by ETS and which was produced in court before the Tribunal, was obtained from the ETS lookup tool. Mr Green explains how the data - information provided by ETS - matched against Home Office systems. Mr Green was responsible for making sure that the data within the lookup tool was the most up-to-date available."
The lookup tool was later improved upon but I say no more on that for the moment.
14. In the light of these matters, Ms Broadfoot submits - and I accept - that there was undoubtedly a legally sufficient sub-stratum of evidence before the respondent to entitle her as a matter of public law, and I emphasise that point, to conclude as she did in the letters under challenge in these proceedings.
15. It was, in my view, wholly unnecessary as a matter of law for the respondent to go into any more detail in her decision letter. We have to accept that the scale of the alleged wrongdoing disclosed by the Panorama programme and subsequently investigated by ETS for the respondent was very great. It would, in the circumstances, be wholly unreasonable to expect the respondent in each case to go into the matter in any more detail than she did. What is important is that the decisions clearly explained to the applicant and others in his position why it was that the decision to curtail leave had been taken.
16. That curtailment decision was one the respondent was entitled to reach. It was based upon evidence in existence at the time that, as I have said, was sufficient for public law purposes. Mr Turner says that the investigations were not those of the respondent's officers, but rather appeared to have been undertaken by ETS. That may be so, but it does not, in my view, affect the matter at all. The question to be answered is whether there was a rational basis for the respondent to conclude as she did on the basis of such evidence as had been put to her, whether by her own officers or by a third party, such as ETS. Only if she can be described as acting irrationally in a Wednesbury sense would the position be otherwise.
17. Although the matter is important for the applicant and the fact that it involves misconduct plainly informs the way which the respondent and indeed the Tribunal must proceed, I do not consider it is appropriate in these judicial review proceedings to seek to import the full panoply of burdens and standards of proof concerning alleged fraudulent conduct, such as we find in the Tribunal case law relating to appeals. There is a clear distinction, underscored by the Court of Appeal judgment in Giri [2015] EWCA Civ 784, among others, between, on the one hand, appeal proceedings and judicial review proceedings, on the other. It is plain that one of the consequences of the changes affected by the Immigration Act 2014 has been drastically to reduce the scope of appeals in the immigration field; but that does not mean judicial review in this area should undergo some form of transformation, in order to plug any perceived gap.
18. If authority were needed for what I have just said, one finds it in the decision of the Upper Tribunal in the case of R (on the application of Mohibullah) [2016] UKUT 00561 (IAC), a decision of the IAC's President, Mr Justice McCloskey. At paragraphs 62 and 63 of that judgment we find the following, which I happily accept and respectfully endorse:-
"(62) Which of these is the appropriate standard of review? This is the stark choice to be confronted, bearing in mind our analysis and conclusion above that in substance and reality the curtailment of leave action taken against the applicant was underpinned by the Secretary of State's unshakeable and unwavering conviction that he had engaged in deception in procuring his TOEIC English language qualification. The applicant argues that his judicial review challenge falls to be determined by reference to the standard of the precedent fact of deception. We consider that the applicant's argument founders on the rock of the Giri decision, which points firmly to the conclusion that the Wednesbury principle, rather than proof of the precedent fact of deception, provides the appropriate standard of review in this context.
(63) The next question, logically, is whether the impugned decision of the Secretary of State is vitiated by Wednesbury irrationality? As emphasised in recent Supreme Court decisions such as Keyu v Secretary of State for the Home Department [2015] UKSC 69, the Wednesbury principle, in cases not involving the assertion of fundamental rights, continues to entail an acutely elevated threshold. It has a heavy emphasis on (merely) supervisory judicial review. Applying the formula adopted by Richards LJ in Giri, we are satisfied following careful scrutiny that while the information available to the Secretary of State was far from abundant, and bearing in mind when the impugned decision was made viz it preceded the significant developments (evidential and otherwise) in the 'ETS saga' heralded by the decisions in Gazi and SM and Qadir, the assessment that the Applicant had engaged in deception based on the notification from ETS lay within the spectrum of rational decisions open to the hypothetical reasonable decision maker."
19. There is however, a further string to Ms Broadfoot's bow, with which I need to deal, albeit somewhat more briefly, given my primary finding. In essence, Ms Broadfoot submits that the materials produced by the respondent in the course of these proceedings, following the abortive hearing in February 2017, are of such weight that it must be the case that a tribunal or court, looking at the matter now, would be compelled to apply section 31(2A) of the Senior Courts Act 1981, the relevant words of which are that the court etc is to withhold relief if it is "highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred". In other words, the respondent submits that even if, which she denies, the passage cited at page 60 of the bundle was legally insufficient at the time, the materials we now have make it abundantly plain that the respondent had a rational reason for concluding that the applicant had been guilty of improper conduct in connection with his test at the Portsmouth test centre.
20. In this regard, one turns again to the witness statement of Rachel Green, looking not just at the passage to which I made reference earlier, but to its totality, and in particular to the exhibits which one finds attached to it. These show that what went on in the Portsmouth test centre at exactly the time that the applicant was taking his test there can best be described as highly problematic and more realistically described as strong evidence of "industrial-scale" fraud. One draws this conclusion from, amongst other things, the materials comparing, on the one hand, what happened in the Portsmouth test centre and what happened at the indubitably properly run and entirely legitimate operation being undertaken by the Pearson organisation. The graphs explained in the document at RG9 dated January 2017 are striking in this regard. In short, remarkably large numbers of people were achieving remarkably consistently higher scores in Portsmouth than they were in the centre run by Pearson.
21. As Ms Broadfoot volunteered, it is possible to envisage that other views of this evidence might be taken than the one I have just described. That is, however, not the point. Rather, the point is whether no reasonable Secretary of State could place any material reliance on this material. Quite understandably, that is not a submission that Mr Turner has come anywhere near making in these proceedings and it is not one which would have found favour, if he had. Accordingly, Ms Broadfoot's secondary submission also succeeds.
22. I turn, finally, to the issue of the letter of 20th April 2017 and the significance or otherwise of the reference made in the respondent's materials to voice recordings typically being stored by ETS for 999 days. In his supplemental witness statement, the applicant queries the fact that a recording said to relate to his test but admitted by the applicant not to be of his voice had emerged as a result of the enquiries made on his behalf by his solicitors. He does so on the basis that he has seen in the witness statements relied upon now by the respondent that, typically, ETS would only hold such material for 999 days.
23. The respondent's letter of 20th April 2017, which Mr Turner and I have only very recently seen, purports to take this matter on board and deals with it at paragraph 10. There, we find that the practice was only one which was "typically" undertaken by ETS. In other words, it was not an inflexible rule. More particularly, following the Panorama programme, it is plain from paragraph 10 that the ETS organisation decided, entirely understandably, not to begin disposing of recordings relating to the kinds of incidents or purported incidents described in the programme.
24. I do not consider that this letter has the character for which Mr Turner contends. He says, firstly, that it is new evidence and I should ignore it. But even if one ignores the letter, it is manifest from the materials to which I have made reference that the respondent still had a rational basis for concluding as she did. The introduction of the recording came as a result of the understandable wish on the part of the applicant to obtain it and there would in my view be no mileage whatsoever in any suggestion that the tape is unreliable because it has emerged later than 999 days after it was said to have been brought into being.
25. Mr Turner's second submission about the letter of 20th April is that it constitutes a further decision of the respondent and supports his client's case. I reject that submission also. It is plain from the terms of the letter that it is not intended in any way to take the place of the earlier decisions. It is merely dealing with matters that arose in the course of these present proceedings. It does not cast any adverse light upon the decisions that are under challenge.
26. Accordingly, for these reasons, and notwithstanding Mr Turner's valiant efforts to the contrary, this application must fail and I therefore dismiss it.
JR/2940/2016
Field House,
Breams Buildings
London
EC4A 1WR
Given orally at Field House: 21st april 2017
Before
UPPER TRIBUNAL JUDGE PETER LANE
Between
mr rajkumar mani
Applicant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
- - - - - - - -
Mr P Turner, Counsel, instructed by law Lane Solicitors, appeared on behalf of the applicant.
Miss S Broadfoot, QC, instructed by the Government Legal Department, appeared on behalf of the respondent.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
APPLICATION FOR JUDICIAL REVIEW
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
JUDGE PETER LANE: This is an application for judicial review by Mr Rajkumar Mani of the respondent's decisions of 27th November 2015 and 18th January 2016 to curtail his leave to remain in the United Kingdom. Permission to bring judicial review proceedings was granted on 24th May 2016 by Upper Tribunal Judge Jacobs.
1. The essential immigration history of the applicant is set out in the skeleton argument of Mr Turner, who appears for him. From that we see that the applicant, an Indian national, was born, he says, in 1978 and in 2010 entered the United Kingdom with leave as a student. His subsequent application for leave in that capacity was refused in 2013, but an appeal against that refusal was successful. In essence, it is said on his behalf that between March 2003 and June 2011 the applicant has been in the United Kingdom with various forms of leave to remain as a student.
2. On 27th November 2015 the defendant curtailed the applicant's leave on the ground that deception had been used in connection with an application. The refusal was said to be taken under paragraphs 323 and 322 of the Immigration Rules.
3. In January 2015, the respondent reconsidered her earlier decision and gave the applicant a further fourteen days leave to remain. This followed the respondent's acknowledgement that an incorrect paragraph had been cited in the earlier letter curtailing leave. On 18th January 2015, however, the applicant received a further letter from the respondent, which had the effect of curtailing those fourteen days with immediate effect.
4. The decision upon which both parties and the Tribunal concentrated is that of 18th January 2016. At page 60 of the bundle we find the operative part of that letter. It reads as follows:-
"For the purposes of your application dated 28 September 2012, you submitted a TOEIC certificate from Educational Testing Service ('ETS') to your sponsor in order for them to provide you with a Confirmation of Acceptance for Studies. According to information provided to the Home Office by ETS, you obtained a TOEIC certificate as a result of a test that you took at Portsmouth International College on 21 March 2012.
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. ETS have declared your test to be 'Invalid' due to the aforementioned presence of a proxy tester who sat the test in your place, and the scores have therefore 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."
5. The proceedings in this judicial review have not been entirely straightforward and need to be mentioned. Prior to what was originally fixed to be the date of the substantive hearing, that is to say 7th February 2017, there was communication between the parties' representatives. This communication can be traced, in part, in the bundle prepared by the applicant's solicitors and in part in three "clips", as the Tribunal describes them, of e-mails which have been supplied by Ms Broadfoot in connection with the hearing today. From this, we see that the Government Legal Department enquired of the applicant as to his intentions, prior to the date of the hearing. It emerged from that enquiry that the applicant was intent upon seeking a copy of the voice recording relating to the applicant's test. There was some discussion in submissions about the significance or otherwise of the details underlying the exchange of e-mails. For present purposes, however, it is necessary to say no more than that the applicant's solicitors eventually made contact and were supplied by the solicitors acting for ETS with a copy of the relevant recording.
6. Meanwhile, the respondent sought an adjournment of the Tribunal hearing of 7th February, which was granted by Upper Tribunal Judge Jordan. He made a decision regarding the costs of that hearing and also gave directions to the parties. These flowed from the respondent's intention to amend the detailed grounds of defence so as to make reference to certain material to which I will turn in due course. Those amendments were made on 6th March 2017. The applicant, for his part, was given until 4th April 2017 to file amended grounds of application and supporting evidence. It is of some significance, Ms Broadfoot says, that no such amended grounds were filed.
7. As I have said, the outcome of the request by the applicant to be supplied with the voice recording is that such a recording was supplied. That led to a supplemental statement being filed by the applicant, in which he took issue, amongst other things, with the fact that the recording had been made available, even though it emerged from evidence filed by the respondent that, typically, such recordings were only held for a period of 999 days.
8. I shall return to that issue and its significance or otherwise in due course. For the moment however, it is necessary to look at the submissions made by the parties.
9. Mr Turner's case is that the passage from the decision letter to which I have just made reference is legally insufficient to constitute a valid decision in the circumstances of this case, concerning as it does an allegation of dishonest conduct. Mr Turner submits that the passage does not constitute evidence. He accepts without, however, making any concessions as to the culpability or otherwise of the applicant, that the respondent has in her amended grounds and the materials accompanying them, subsequently done, to paraphrase a "better job". But none of that, according to Mr Turner, can breathe life into or otherwise validate what he says are legally flawed decisions. Mr Turner points out that the courts on a number of occasions have counselled against treating judicial review as a kind of rolling process. Concentration must always be placed upon the decision which is the subject of the challenge.
10. For her part, Ms Broadfoot takes the respondent's case in the following way. First, she submits that the decision, and in particular the passages to which I have made reference, is not in any way legally flawed. The passage that one finds at page 60 of the bundle, where the extract from the letter of 18th January is set out is, Ms Broadfoot says, evidence in its own right. It is evidence that the respondent was entitled to rely upon. There is no evidence adduced on behalf of the applicant to say that this passage is in any sense some kind of "cut and paste" device.
11. In support of this primary submission, Ms Broadfoot prays in aid the evidence of Rebecca Collings, which we find at page 154 of the bundle. This statement, by an officer of the respondent, is, significantly, dated 23rd June 2014. In other words, it pre-dates by some measure the decisions which are the subject of the present proceedings. It describes the actions of the respondent that followed the broadcast of the Panorama programme in early 2014, which demonstrated significant problems regarding the testing of immigrants in the English language in the United Kingdom. Indeed, it is fair to say that the evidence looked at in the programme demonstrated that fraud on a wide scale appeared to be being committed. What was happening in many cases was that the formal English tests of candidates were not being answered by those candidates, but instead by proxies on their behalf. Thus we see at paragraph 28 of Ms Collings' statement that ETS said any tests categorised as "cancelled" - which later became known as "invalid" - were ones which had the same voice for multiple test takers. According to Miss Collings, on questioning by the respondent, ETS advised that "they were certain there was evidence of proxy test taking or impersonation in those cases". That is of significance in the present case because the applicant's test is described as being invalid.
12. There follows in the statement an explanation of the distinction between invalid tests and those categorised as "questionable". There is then a paragraph relied upon by Ms Broadfoot:-
"34. A significant data matching process was commenced to take the results from ETS and match them (or not) to actual individuals with leave already granted or with applications pending. From this, we were able to segment the results into a series of categories (including, for example, pending application with an invalid result, pending application with a questionable result) and make detailed plans for handling the cohorts, recognising though that each case needed careful individual consideration to ensure the right outcome be reached."
13. In the statement of Rachel Green, which followed in the wake of the amended grounds of defence, we see reference to other matters that are germane, in the sense that they relate to a period in time relevant to the decision-making in the present proceedings. In paragraph 6 we find the following:-
"In a witness statement for the case of SM & Qadir, dated 3 February 2016, my colleague Richard Green in the Performance Reporting & Analysis Unit (PRAU) also within the Home Office, confirmed how the evidence of an invalid TOEIC test result provided to the Home Office by ETS and which was produced in court before the Tribunal, was obtained from the ETS lookup tool. Mr Green explains how the data - information provided by ETS - matched against Home Office systems. Mr Green was responsible for making sure that the data within the lookup tool was the most up-to-date available."
The lookup tool was later improved upon but I say no more on that for the moment.
14. In the light of these matters, Ms Broadfoot submits - and I accept - that there was undoubtedly a legally sufficient sub-stratum of evidence before the respondent to entitle her as a matter of public law, and I emphasise that point, to conclude as she did in the letters under challenge in these proceedings.
15. It was, in my view, wholly unnecessary as a matter of law for the respondent to go into any more detail in her decision letter. We have to accept that the scale of the alleged wrongdoing disclosed by the Panorama programme and subsequently investigated by ETS for the respondent was very great. It would, in the circumstances, be wholly unreasonable to expect the respondent in each case to go into the matter in any more detail than she did. What is important is that the decisions clearly explained to the applicant and others in his position why it was that the decision to curtail leave had been taken.
16. That curtailment decision was one the respondent was entitled to reach. It was based upon evidence in existence at the time that, as I have said, was sufficient for public law purposes. Mr Turner says that the investigations were not those of the respondent's officers, but rather appeared to have been undertaken by ETS. That may be so, but it does not, in my view, affect the matter at all. The question to be answered is whether there was a rational basis for the respondent to conclude as she did on the basis of such evidence as had been put to her, whether by her own officers or by a third party, such as ETS. Only if she can be described as acting irrationally in a Wednesbury sense would the position be otherwise.
17. Although the matter is important for the applicant and the fact that it involves misconduct plainly informs the way which the respondent and indeed the Tribunal must proceed, I do not consider it is appropriate in these judicial review proceedings to seek to import the full panoply of burdens and standards of proof concerning alleged fraudulent conduct, such as we find in the Tribunal case law relating to appeals. There is a clear distinction, underscored by the Court of Appeal judgment in Giri [2015] EWCA Civ 784, among others, between, on the one hand, appeal proceedings and judicial review proceedings, on the other. It is plain that one of the consequences of the changes affected by the Immigration Act 2014 has been drastically to reduce the scope of appeals in the immigration field; but that does not mean judicial review in this area should undergo some form of transformation, in order to plug any perceived gap.
18. If authority were needed for what I have just said, one finds it in the decision of the Upper Tribunal in the case of R (on the application of Mohibullah) [2016] UKUT 00561 (IAC), a decision of the IAC's President, Mr Justice McCloskey. At paragraphs 62 and 63 of that judgment we find the following, which I happily accept and respectfully endorse:-
"(62) Which of these is the appropriate standard of review? This is the stark choice to be confronted, bearing in mind our analysis and conclusion above that in substance and reality the curtailment of leave action taken against the applicant was underpinned by the Secretary of State's unshakeable and unwavering conviction that he had engaged in deception in procuring his TOEIC English language qualification. The applicant argues that his judicial review challenge falls to be determined by reference to the standard of the precedent fact of deception. We consider that the applicant's argument founders on the rock of the Giri decision, which points firmly to the conclusion that the Wednesbury principle, rather than proof of the precedent fact of deception, provides the appropriate standard of review in this context.
(63) The next question, logically, is whether the impugned decision of the Secretary of State is vitiated by Wednesbury irrationality? As emphasised in recent Supreme Court decisions such as Keyu v Secretary of State for the Home Department [2015] UKSC 69, the Wednesbury principle, in cases not involving the assertion of fundamental rights, continues to entail an acutely elevated threshold. It has a heavy emphasis on (merely) supervisory judicial review. Applying the formula adopted by Richards LJ in Giri, we are satisfied following careful scrutiny that while the information available to the Secretary of State was far from abundant, and bearing in mind when the impugned decision was made viz it preceded the significant developments (evidential and otherwise) in the 'ETS saga' heralded by the decisions in Gazi and SM and Qadir, the assessment that the Applicant had engaged in deception based on the notification from ETS lay within the spectrum of rational decisions open to the hypothetical reasonable decision maker."
19. There is however, a further string to Ms Broadfoot's bow, with which I need to deal, albeit somewhat more briefly, given my primary finding. In essence, Ms Broadfoot submits that the materials produced by the respondent in the course of these proceedings, following the abortive hearing in February 2017, are of such weight that it must be the case that a tribunal or court, looking at the matter now, would be compelled to apply section 31(2A) of the Senior Courts Act 1981, the relevant words of which are that the court etc is to withhold relief if it is "highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred". In other words, the respondent submits that even if, which she denies, the passage cited at page 60 of the bundle was legally insufficient at the time, the materials we now have make it abundantly plain that the respondent had a rational reason for concluding that the applicant had been guilty of improper conduct in connection with his test at the Portsmouth test centre.
20. In this regard, one turns again to the witness statement of Rachel Green, looking not just at the passage to which I made reference earlier, but to its totality, and in particular to the exhibits which one finds attached to it. These show that what went on in the Portsmouth test centre at exactly the time that the applicant was taking his test there can best be described as highly problematic and more realistically described as strong evidence of "industrial-scale" fraud. One draws this conclusion from, amongst other things, the materials comparing, on the one hand, what happened in the Portsmouth test centre and what happened at the indubitably properly run and entirely legitimate operation being undertaken by the Pearson organisation. The graphs explained in the document at RG9 dated January 2017 are striking in this regard. In short, remarkably large numbers of people were achieving remarkably consistently higher scores in Portsmouth than they were in the centre run by Pearson.
21. As Ms Broadfoot volunteered, it is possible to envisage that other views of this evidence might be taken than the one I have just described. That is, however, not the point. Rather, the point is whether no reasonable Secretary of State could place any material reliance on this material. Quite understandably, that is not a submission that Mr Turner has come anywhere near making in these proceedings and it is not one which would have found favour, if he had. Accordingly, Ms Broadfoot's secondary submission also succeeds.
22. I turn, finally, to the issue of the letter of 20th April 2017 and the significance or otherwise of the reference made in the respondent's materials to voice recordings typically being stored by ETS for 999 days. In his supplemental witness statement, the applicant queries the fact that a recording said to relate to his test but admitted by the applicant not to be of his voice had emerged as a result of the enquiries made on his behalf by his solicitors. He does so on the basis that he has seen in the witness statements relied upon now by the respondent that, typically, ETS would only hold such material for 999 days.
23. The respondent's letter of 20th April 2017, which Mr Turner and I have only very recently seen, purports to take this matter on board and deals with it at paragraph 10. There, we find that the practice was only one which was "typically" undertaken by ETS. In other words, it was not an inflexible rule. More particularly, following the Panorama programme, it is plain from paragraph 10 that the ETS organisation decided, entirely understandably, not to begin disposing of recordings relating to the kinds of incidents or purported incidents described in the programme.
24. I do not consider that this letter has the character for which Mr Turner contends. He says, firstly, that it is new evidence and I should ignore it. But even if one ignores the letter, it is manifest from the materials to which I have made reference that the respondent still had a rational basis for concluding as she did. The introduction of the recording came as a result of the understandable wish on the part of the applicant to obtain it and there would in my view be no mileage whatsoever in any suggestion that the tape is unreliable because it has emerged later than 999 days after it was said to have been brought into being.
25. Mr Turner's second submission about the letter of 20th April is that it constitutes a further decision of the respondent and supports his client's case. I reject that submission also. It is plain from the terms of the letter that it is not intended in any way to take the place of the earlier decisions. It is merely dealing with matters that arose in the course of these present proceedings. It does not cast any adverse light upon the decisions that are under challenge.
26. Accordingly, for these reasons, and notwithstanding Mr Turner's valiant efforts to the contrary, this application must fail and I therefore dismiss it.