Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2021-000179

First-tier Tribunal No: HU/17114/2017

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 11 April 2025

Before

UPPER TRIBUNAL JUDGE BULPITT
AND
DEPUTY UPPER TRIBUNAL JUDGE M WALSH

Between

MR MD ADBUR RAHIM
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Gajjar – Counsel instructed by Thamina Solicitors
For the Respondent: Mr E Tufan – Senior Home Office Presenting Officer

Heard at Field House on 24 March 2025

DECISION AND REASONS
1. The appellant is now 37 years old and is a citizen of Bangladesh. He has been living in the United Kingdom since 2007. His appeal relates to a decision taken by the respondent in November 2017 to refuse his application for indefinite leave to remain in the United Kingdom on the basis that the appellant failed to meet the suitability requirements for being granted such leave as he had used deception in a previous application for leave to remain.
2. The regrettable seven year history of the appellant’s appeal is set out at [3] – [6] of my “error of law decision” dated 9 January 2025 which is annexed to this decision. In that decision I found that First-tier Tribunal Judge Cohen had erred in law when considering the appellant’s appeal in December 2018 and I determined that a new decision concerning the appellant’s appeal will be made in the Upper Tribunal following a hearing. I issued directions for the service of any additional evidence and the matter was listed for hearing in accordance with those directions.
The Issue
3. The respondent asserts that the appellant used deception in an application for leave to remain in the United Kingdom he made on 25 October 2012. As part of that application the appellant submitted a certificate confirming he had passed the Test of English for International Communication (TOEIC) which was a requirement for being granted the leave he sought. The certificate indicated that the appellant had taken the test at the London College of Media and Technology and that the test was administered by the Educational Testing Service (ETS). The respondent asserts the appellant obtained that certificate by fraud. This assertion followed an expose by the BBC Panorama programme broadcast on 10 February 2014 which exposed widespread cheating in ETS administered TOEIC tests. The appellant denies obtaining the TOEIC certificate by fraud but says he obtained it legitimately by sitting and passing the relevant speaking and writing tests on 21 August 2012.
4. It is common ground and clearly established law (see the error of law decision at [17]) that the respondent bears the burden of proving her assertion that the appellant cheated and that she must do so on the balance of probabilities. Therefore, if the respondent succeeds in proving that it is more likely than not that the appellant used deception then the appellant’s appeal falls to be dismissed as the interference with his private and family life in the United Kingdom would be proportionate given the appellant would fail to meet the suitability requirements for being granted the leave to remain he seeks. On the other hand, should the respondent fail to establish it is more likely than not the appellant used deception, then the appeal would succeed because the appellant would qualify for the indefinite leave to remain he seeks and so refusal of that leave would be a disproportionate interference with his private and family life in the United Kingdom.
New Matter not Considered
5. In her 2017 decision that is subject to this appeal, the respondent states that although the appellant mentioned a fiancé in the United Kingdom in his application for leave to remain, he didn’t provide evidence to support that and said that “as you have not provided any information with regards to your ‘fiancé’ nor told us about parent or dependent children in the United Kingdom, we have therefore not considered the family life rules under Appendix FM [of the Immigration Rules]”.
6. Within the further evidence served in anticipation of this hearing the appellant provided birth certificates for three children he says he has had since the respondent made her decision that is the subject of this appeal. Child 1: born 4 February 2018, Child 2: born 20 September 2019, and Child 3 born 24 December 2021. The certificates state that the mother of all three children is Bithi Ali, whom the appellant says has been his partner for more than ten years. The appellant also adduced evidence that he has made an application for settlement in the United Kingdom on behalf of Child 1.
7. Section 120 of the Nationality Immigration and Asylum Act 2002 (the 2002 Act) requires that where a person’s circumstances have changed so that he has additional grounds on which he should be permitted to remain or not to be removed from the United Kingdom, he provide to the respondent as soon as reasonably practicable a supplementary statement setting out the additional reasons or grounds. On behalf of the appellant it was acknowledged that no such statement concerning the appellant’s relationship with Ms Bibi and the three children has been provided to the respondent.
8. The appellant’s family life with Ms Bibi and his three children has therefore not been considered by the respondent either in the decision which is subject to this appeal or following a statement submitted under s120 of the 2002 Act. In these circumstances, Mr Gajjar agreed that the appellant’s family life was a “new matter” as defined in section 85(6) of the 2002 Act, which by virtue of section 85(5) of the 2002 Act could only be considered by Tribunal if the respondent has given the Tribunal consent to do so.
9. On behalf of the respondent Mr Tufan refused to give consent for the appellant’s family life with his partner and children to be considered by the Tribunal, noting that this evidence has been adduced very late in the day and the respondent has not had an opportunity to investigate or consider the points raised. In these circumstances we have not considered the effect of the respondent’s decision on the family life he says he has formed with his partner and children in the United Kingdom.
The Hearing
10. The hearing took place in person. We confirmed with the parties that we all had the same documentary evidence. This consisted of a consolidated bundle (CB) prepared by the appellant’s solicitors as a PDF document of 235 pages. This bundle did not include any of the evidence on which the respondent relied which it was said was not available. The documentary evidence also included a supplementary bundle (SB) in the form of a PDF bundle of 54 pages, served by the respondent. This bundle consisted of the evidence which the respondent says proves the appellant’s fraudulent obtaining of the TOIEC certificate; namely, the statement of Monah Shah, Home Office employee dated 2 August 2018 appending results of the ETS analysis of test centre used by the appellant; the statement of Rebecca Collings, Home Office employee, dated 23 June 2014; the statement of Peter Millington, Home Office employee dated 23 June 2014; the statement of Professor Peter French dated 20 April 2016; and a Home Office Report on the investigation into the London College of Media and Technology, the relevant test centre. Neither the CB nor the SB was served in accordance with directions issued in the error of law decision, however both Mr Tufan and Mr Gajjar confirmed that they had had sufficient time to consider the evidence in the two bundles and were ready to proceed with the hearing.
11. The appellant was able to fully participate in the hearing without the assistance of an interpreter. We heard oral evidence from him and then submissions from Mr Tufan and Mr Gajjar following which we reserved our decision.
Analysis
The Respondent’s evidence of fraud.
12. Home Office employee Rebecca Collings explains the part that Secure English Language Testing (SELT) plays in the consideration of immigration applications and the role played by ETS in such testing. She confirms that ETS was licenced by the Home Office to operate English language tests through various establishments in the United Kingdom, and that it was ETS’s responsibility to ensure the integrity of their test procedure. Ms Collings confirms that in January 2014 the Home Office were made aware of findings made by undercover reporters working for the BBC Panorama programme, of widespread fraud leading to candidates being awarded top scores in tests at centres operated by ETS. She describes how the programme showed proxy test-takers taking the speaking part of the test on behalf of candidates, and answers to questions being read out from the front of the class. In response to this the Home Office began criminal investigations into specific test centres and reviewed past test results from centres operated by ETS. In March 2014 ETS informed the Home Office that by using voice recognition software it had been possible to identify impersonation and proxy testing. Where the same voice was revealed to have taken tests for multiple candidates tests results were classified as “invalid”. Where the results were inconclusive about the use of a proxy or impersonator they were classified as “questionable” and the test results cancelled. Ms Collings explains that having been provided with results from the voice recognition tests by ETS the Home Office began to take action against those suspected of using fraud to obtain TOEIC certificates.
13. A second Home Office employee Peter Millington gives further detail about ETS and the investigations they undertook following the Panorama programme. He explains that voice biometric technology was used by ETS to identify abuse at test centres in the United Kingdom, and describes the safety mechanisms involved in that process to avoid “false positive” results whilst limiting “false negatives”. He goes on to set out the analysis that took place which involved comparisons of audio files from tests taken in the “voice biometrics engine” which identified suspicious results which were flagged as “matches” followed by human verification by two trained members of staff working separately and that where both humans identified that the voices on the recordings were a “match” the test result would be marked invalid. A report from Professor French comments on the process adopted by ETS to identify matches and concludes that there would have been substantially more false rejections than false positives and that overall the rate of false positives to be very substantially less than 1%.
14. Home Office employee Mona Shah produces a spreadsheet entry concerning the appellant which records that the speaking score of 200 and writing score of 190 that were attributed to the appellant after he was recorded as taking tests at London College of Media & Technology on 21 August 2012, have, following examination by ETS, been recorded as invalid. A second spreadsheet entry produced by Ms Shah records that of 159 tests taken at the London College of Media & Technology on 21 August 2012, 131 have been found to be invalid, while 28 have been found to be questionable.
15. Finally a report is adduced about “Project Façade” a criminal investigation carried out by the Home Office into the abuse of the TOEIC exam. It confirms that an investigation into London College of Media & Technology revealed that 43% of the results for tests taken at the centre were later recorded as invalid with the remaining 57% being recorded as questionable. The report refers to ETS audits conducted at the centre in May 2013 (after the appellant’s test but before the Panorama expose) which identified that none of the 47 candidates seen taking a test were able to provide identification to the auditor indicating that “pilots” were being used. As a result all the results for the day were cancelled. One candidate whose result was treated as invalid was later interviewed and admitted that a “pilot” took the test on his behalf.
16. This evidence is all old now. The statements by Ms Collings and Mr Millington were made in June 2014, the report about Operation Façade was written by Detective Inspector Carter in May 2015 and the report by Professor French was written in April 2016. Since then there have been criminal prosecutions of people involved in the TOEIC frauds including R v Mohammed and others (T2014 7524) which involved three people being convicted of conspiring to facilitate breaches of immigration law at “Universal Training Centre” the evidence of which included footage of “a very well-practiced operation in which everyone at the centre, students, pilots and staff seemed to know what was going on and what was expected of them”1 Another criminal prosecution was R v Kologatla and others (T2015 7639; 7640; 7664) which involved the prosecution of ten people for frauds committed at New College London the evidence of which included a “snapshot” of particular days including one where at the commencement of a test for 16 people there was a general announcement that if persons from UKBA came “you will hear a bell and must swap seats with the lady taking the test and pretend to do something” following which pilots insisted on taking the test for candidates in an act of “institutional organised cheating”2
17. The evidence produced by the respondent has received extensive consideration by the Courts and Tribunals in the years since the statements and reports were written. In DK and RK (ETS SSHD evidence; proof) India [2022] UKUT 00112 (IAC) a Presidential panel of the Upper Tribunal drew the conclusion from the evidence at [103] “that the voice recognition process is clearly and overwhelmingly reliable in pointing to an individual test entry as the product of a repeated voice.” After considering arguments about the possibility of mistakes being made in the processing of test recordings and during the ETS examination process the panel concluded at [107] that “what is clear here is that there is every reason to suppose that the evidence is likely to be accurate.” The panel then expressed their conclusions about the evidence relied upon by the respondent, including the statements of Ms Collings, Mr Millington and Professor French in the “general conclusions” section at [126] – [129] of their decision which we set out in full:
126. The two strands, therefore, amount respectively to the virtual exclusion of suspicion of relevant error by ETS, and the virtual exclusion of motive or opportunity for anybody to arrange for proxy entries to be submitted except the test centres and the candidates working in collusion.
127. Where the evidence derived from ETS points to a particular test result having been obtained by the input of a person who had undertaken other tests, and if that evidence is uncontradicted by credible evidence, unexplained, and not the subject of any material undermining its effect in the individual case, it is in our judgment amply sufficient to prove that fact on the balance of probabilities.
128. In using the phrase “amply sufficient” we differ from the conclusion of this Tribunal on different evidence, explored in a less detailed way, in SM and Qadir v SSHD. We do not consider that the evidential burden on the respondent in these cases was discharged by only a narrow margin. It is clear beyond a peradventure that the appellants had a case to answer.
129. In these circumstances the real position is that mere assertions of ignorance or honesty by those whose results are identified as obtained by a proxy are very unlikely to prevent the Secretary of State from showing that, on the balance of probabilities, the story shown by the documents is the true one. It will be and remain not merely the probable fact, but the highly probable fact. Any determination of an appeal of this sort must take that into account in assessing whether the respondent has proved the dishonesty on the balance of probabilities.
18. We are satisfied in these circumstances that the evidence adduced by the respondent is to be afforded significant weight. On the basis of this compelling evidence we consider it highly probable that the appellant did use a proxy to take his test as has been alleged. We note that the appellant’s results were exceptionally high. They have subsequently been recorded as invalid following a robust system of checking which indicated the use of a proxy. We take note of the fact that none of the results from the London College of Media & Technology on the day the appellant took his test have been held to be reliable and the majority have been assessed as invalid. We conclude that this indicates fraud was widespread at the Centre where the appellant says he took his test on the day he took his test. In summary we are satisfied that this is powerful evidence in support of the assertion that the appellant cheated and allowed a proxy to take the TOEIC test on his behalf.
The appellant’s alternative explanation
19. The appellant says he did not use a proxy to take his TOEIC test but that he took the test himself at a test centre in Aldgate. He adopted a witness statement he made in 2018 as his evidence of doing so. The appellant provides very little detail of taking the test in that statement. In answer to questions in cross examination he said that the test centre was in Aldgate. He said he chose that centre after it had been recommended to him through friends of his brother and after speaking to a business in Whitechapel that arranged the booking and provided him with practice papers in advance of the test. He said that he travelled to the test centre by tube. Once at the centre he said he did not see anything suspicious but he took the test with 11 other people in a room upstairs. He described that on the day of the test he was wearing a particular T-shirt that appears in some photographs of him. The appellant was asked if his partner knew about the test and said that she did. He described how he had discussed the need to take the test with her in advance, that he left her at home on the morning of the test and that after taking the test he telephoned her to say he had finished. He said he did not realise it would be helpful for his partner to provide a statement about this but that she could provide a statement if one was needed. In answer to our questions the appellant said that he had been intending to take a City and Guilds test rather than the TOEIC test but that he was running out of time as his visa was going to expire and so took the TOEIC test instead. He explained that he has not been in touch recently with his brother who was deported and has had personal difficulties. He said he also lost touch with the others who had recommended the London College of Media and Technology to him.
20. We recognise that a long time has passed since the events in question took place on 21 August 2012. We did not in those circumstances expect an especially detailed account from the appellant about the process of taking the test. We did however find his account to be wilfully vague and to be lacking in support in circumstances where we would expect to see some supporting evidence. We note that the appellant’s witness statement was made much closer in time to the events being discussed, but despite that was devoid of detail. We also note that the appellant was aware of the allegation being made against him in 2017 and despite that there is nothing to suggest that the appellant took steps at that time to contradict the assertion being made – e.g. by contacting the test centre and challenging them, gathering evidence of his payments for the test or movements on the day of the test or obtaining the recording of his test. Most notably, although he continues to be in a relationship with his partner and although on his account she would be able to provide supporting evidence, the appellant’s partner has not provided a statement and did not attend to support the appellant. We adopt the observations of Lord Justice Thomas at [21] of TK (Burundi) v Secretary of State for the Home Department [2009] EWCA Civ 40: “The circumstances of this case in my view demonstrate that independent supporting evidence which is available from persons subject to this jurisdiction be provided wherever possible and the need for an Immigration Judge to adopt a cautious approach to the evidence of an appellant where independent supporting evidence, as it was in this case, is readily available within this jurisdiction, but not provided.”
21. The primary focus of the appellant in his witness statement and during the hearing was on his education and the suggestion that he was well able to speak English and so would have no reason to cheat and use a proxy to take the test for him. This assertion does not however recognise that there are numerous reasons why a person who could pass a test might nevertheless decide to cheat and for that reason competence in English is not a reliable source of corroboration for the appellant’s account that he took the test. This is a point made at [108] of DK and RK by reference to an earlier Presidential decision in SSHD v MA [2016] UKUT 450 (IAC). In the appellant’s circumstances the impending expiration of his visa in August 2012 would be one such explanation for why he might not want to take the risk of taking the test himself when presented with an opportunity of a fait accompli by using a proxy. In any event not all of the evidence adduced by the appellant in support of his ability to speak English inspires confidence, the Academic Transcript from London Crown College in Mile End Road for example3 refers to: “the summery (sic) of the unit results”
Conclusion
22. Overall, we found the appellant’s account to lack transparency, to be wilfully vague and to lack support in circumstances where supporting evidence especially from his partner could reasonably be expected. In contrast to that weak evidence we found the respondent’s evidence that the appellant used a proxy for his test to be compelling, noting the high instances of fraud at the particular centre used by the appellant, the appellant’s exceptionally high score and the highly probable conclusion reached following the ETS testing that the voice records reveal that the appellant used a proxy. Weighing all the evidence we are satisfied that it is more likely than not that the appellant obtained his TOEIC certificate by deception, using a proxy to take the test on his behalf.
Decision
23. In those circumstances we are satisfied that the respondent’s decision to refuse the appellant’s application on the grounds that he failed to meet the suitability requirements for being granted indefinite leave to remain was correct. We are satisfied that given the deception exercised which goes to the heart of the maintenance of immigration control, the public interest in maintaining effective immigration control outweighs the appellant’s private life interests such that the interference with his article 8 Convention right to respect for his private life is entirely proportionate.
24. We therefore dismiss the appellant’s appeal, though we repeat we have not considered his family life with his children which was a new matter that we could not consider given the respondent refused to give consent for us to do so.
Notice of Decision
The appellant’s human rights appeal is DISMISSED

Luke Bulpitt
Judge of the Upper Tribunal
Immigration and Asylum Chamber

7 April 2025

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2021-000179

First-tier Tribunal No: HU/17114/2017

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE BULPITT

Between

MR MD ABDUR RAHIM
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Gajjar – Counsel instructed by Thamina Solicitors
For the Respondent: Mr E Tufan – Senior Home Office Presenting Officer

Heard at Field House on 11 November 2024

DECISION AND REASONS
1. The appellant is a 36-year-old citizen of Bangladesh. He arrived in the United Kingdom with permission to enter in order to study in September 2007. His leave to remain was later extended until October 2014 when he was refused further leave. The appellant appealed against that decision and has continued to benefit from leave to remain since by virtue of section 3C Immigration Act 1971.
2. On 24 October 2017 (before his appeal had been heard) the appellant made a further application, this time for indefinite leave to remain on the basis that he had by that time acquired ten years continuous lawful residence in the United Kingdom. The respondent refused that latest application on 20 November 2017 on grounds of suitability, finding that the appellant had used a proxy to sit an English Language test on 21 August 2012, which led to him being issued with a TOEIC Certificate by the Educational Testing Service (ETS) that he had then used in support of an application to extend his leave to remain in the United Kingdom. On this basis the respondent concluded that the appellant had used deception to obtain a grant of leave to remain and that his continued presence in the United Kingdom was undesirable.
3. The appellant appealed against the respondent’s refusal and his appeal was heard 13 months later on 20 December 2018 by First-tier Tribunal Judge Cohen (the Judge). The central issue for the Judge to resolve was whether the appellant had used a proxy and therefore obtained a TOEIC certificate by deception, something the appellant vehemently denied. Having heard oral evidence from the appellant and considered documentary evidence adduced by the appellant and the respondent, the Judge issued a decision on 4 January 2019 (the decision) in which he found that the appellant had used a proxy and obtained the TOEIC certificate by deception and accordingly dismissed his appeal. It is that decision which is the subject of this appeal.
4. The appellant sought permission to appeal against the Judge’s decision but was refused by the First-tier Tribunal. He then renewed his application for permission to appeal to the Upper Tribunal, though that application does not appear to have been received. A year later he submitted a new application for permission to appeal to the Upper Tribunal which was not admitted by the Upper Tribunal. The appellant then sought a judicial review of the Upper Tribunal’s decision not to admit his application. Permission to bring judicial review was refused by Mr Justice Sweeting so the appellant sought permission to appeal against Mr Justice Sweeting’s decision, which was subsequently granted by Lady Justice Laing on 16 February 2024.
5. In the light of the terms of the grant of permission by Lady Justice Laing the parties agreed that the Judge had made an error of law in his application of the burden and standard of proof in the decision. The respondent maintained however that the error made by the Judge was not material. A consent order was consequently sealed before Master Bancroft-Rimmer ordering that the matter be remitted to the Upper Tribunal for fresh consideration of whether the appellant should be granted permission to appeal against the Judge’s decision.
6. On 29 July 2024 Upper Tribunal Judge Jackson granted the appellant permission to appeal against the Judge’s decision and thus, almost six years after the decision was made, the matter comes before me to determine whether the agreed error made by the Judge was material to his decision.
The Judge’s Decision
7. At [10] and at [14] – [17] of the decision the Judge sets out the appellant’s account of taking the English language test himself at a test centre in Aldgate and his insistence that he had not used a proxy to do so as had been alleged. This included an account of using an intermediary to arrange the test and how the intermediary also offered tuition and exam practice; an account of his education in English; details of his payment for the test; and an explanation of what happened when he attended for the test. At [11] – [13] the Judge sets out the competing evidence adduced by the respondent that the appellant used a proxy to take the test, including The exceptionally high score achieved, the high number of invalid or questionable results from the College on the day the appellant took the test, and a police report into the College which indicated between May 2012 and Mach 2013 of 2389 tests taken at the College 1033 had been identified as invalid and 1356 as being questionable.
8. The Judge then moves on to assess that evidence. At [20] the Judge directs himself as to the appropriate burden and standard of proof, concluding “in relation to the allegation of having relied on false representations, the burden of proof moves to the respondent. If this is met, the burden of proof reverts to the appellant.” At [24] the Judge says “I find that the respondent has satisfied the higher burden of proof which applies to an allegation of fraud. The appropriate case law indicates that if the appellant can provide cogent evidence of having taken the test in question that he would have satisfied the appropriate burden of proof placed upon him in respect of the appeal.”
9. Having given himself these directions about the burden and standard of proof the Judge then at [24] describes the appellant’s evidence as vague and unconvincing, and says he found the appellant to be a “totally unconvincing witness”. Within the same paragraph the Judge comments that the appellant’s English when giving evidence was inconsistent with someone achieving the results recorded for the appellant in the English language test. The Judge says that he places significant reliance on the respondent’s evidence before ending [24] of the decision by “noting that the appellant has failed to submit any documentary or cogent oral evidence to indicate that he had taken the test himself”.
10. At [25] the Judge again records that he found the respondent’s evidence “makes” the higher standard of proof required in respect of an allegation of fraud, before returning to the appellant’s evidence again at [26]. In this paragraph the Judge notes that the appellant has failed to produce any evidence to demonstrate he attended the test centre on the appropriate days and notes that the appellant has not produced any of his own revision material for the exams or other evidence that he prepared for or took the exams. The Judge again describes the appellant’s evidence as hesitant and poor, before repeating that he found the appellant to be an unconvincing witness.
11. At [27] the Judge references SM and Qadir v SSHD (ETS – Evidence -Burden of Proof) [2016] UKUT 229 (IAC) and says that the appellant “has failed to submit any cogent evidence to rebut the respondent’s reasons for refusal”. At [28] the Judge repeats for the third time that “I find that the respondent has discharged the higher standard of proof placed upon her in respect of an allegation of deception and find that this has not been rebutted by the appellant in this case”.
12. Given these findings the Judge then went on to conclude that the respondent was right to refuse the appellant’s application on grounds of suitability because he had relied on a fraudulent TOEIC certificate. On this basis the appeal was dismissed as any interference with the appellant’s private and family life in the United Kingdom was in the circumstances proportionate.
The Error of Law concerning the burden of proof.
13. When granting permission to bring judicial review proceedings Lady Justice Laing stated: “I have absolutely no doubt that, despite [the Judge’s] references in paragraphs 22 and 27 of [his] determination, to Qadir the [Judge] was confused both about the overall legal burden of proof in such a case, and about the nature of the evidential burden on an appellant. [He] says repeatedly that A had to provide ‘cogent’ evidence and had not done so.” In the subsequent Consent Order both parties agreed with this assessment and before me both Mr Tufan and Mr Gajjar agreed that the Judge had erred in his approach to the burden of proof that applied when considering the appellant’s appeal.
14. Unsurprisingly in these circumstances, I find that the Judge did err in law when assessing the appellant’s appeal.
15. As identified by Lady Justice Laing, the nature of the burden of proof in a case like the appellant’s where deception in the obtaining of a TOEIC certificate is alleged, had at the time of the Judge’s decision been set out at [57] of SM and Qadir v SSHD. In this paragraph the Tribunal identified that the respondent bears the legal burden of proving the deception on the balance of probabilities and that that burden does not at any stage “shift” from the respondent to the appellant. SM and Qadir describes at [57] how, in contrast to the legal burden of proof which remains on the respondent, there is an evidential burden, described as a “pendulum”, that “swings” three times meaning it is: (i) for the respondent to raise the issue of deceit by way of evidence, at which point, (ii) it is for the appellant to raise by way of evidence an innocent explanation, whereupon the issue becomes, (iii) whether the respondent has succeeded in establishing on the balance of probabilities that the evidence of deceit is to be preferred to the appellant’s innocent explanation.
16. It is this description of the “veritable burden of proof boomerang” which applies to the evidential burden that appears to have led to the Judge’s confusion about the legal burden of proof that in fact applied. That confusion is best demonstrated by the inaccurate statement at [24] of the decision that, the respondent having satisfied the higher burden of proof, “The burden then switches to the appellant. The appropriate case law indicates that if the appellant can provide cogent evidence of having taken the test in question that he would satisfied (sic) the appropriate burden of proof placed upon him in respect of the appeal”. Although this statement references the “appropriate case law” it mis-states that case law. As identified already, SM and Qadir explicitly stated that the legal burden of proof does not shift (or indeed switch) from the respondent to the appellant. It is apparent from the Judge’s reference in this passage to the appellant having to satisfy the appropriate burden of proof placed upon him that the Judge was under the mistaken impression that there was a burden on the appellant to establish his innocent explanation. This mistake becomes more clear in the light of the Judge’s adverse reference later in the same paragraph and at [27] to the appellant’s failure to provide cogent evidence.
17. The confusion arising from [57] of SM and Qadir (which was quoting from an earlier decision of the Upper Tribunal: Muhandiramge (Section S-LTR.1.7) [2015] UKUT 00675) was considered subsequent to the Judge’s decision by a Presidential panel of the Upper Tribunal in DK & RK (ETS SSHD evidence; proof) India [2022] UKUT 00112 at [45] – [54]. In these paragraphs the Tribunal sought to avoid future confusion by pointing out that an evidential burden is not a burden “of proof” and that the evidential burden on a party to raise evidence does not really shift because it can be ascertained in advance of the hearing. The Tribunal repeated the central point from SM and Qadir that the burden was always on the respondent to prove the deception on the balance of probabilities. The same point was again made by a Presidential panel of the Upper Tribunal in Varkey & Joseph (ETS – Hidden rooms) [2024] UKUT 00142 (IAC) at [48] – [52].
18. The Judge’s reasoning therefore exposes an error of law. There was no burden of proof on the appellant and he was not required to provide cogent evidence to satisfy such a burden. Instead, the burden was on the respondent to establish that it was more likely than not that the appellant had used deception. In the context where the respondent had adduced evidence of the TOEIC certificate being obtained using a proxy and the appellant had given contrary evidence of taking the test himself, it was necessary for the Judge to weigh these competing assertions and ask himself whether the respondent had established that the innocent explanation could be rejected and that the allegation of deception was more likely to be true. He did not do that but instead found the appellant’s failure to adduce cogent evidence determinative.
Was the error of law material?
19. The respondent’s position both in the Court of Appeal and before me was that the error made by the Judge was immaterial because it is inevitable given the conclusions reached by the Judge, that he would have found the respondent established the deception on the balance of probabilities even had he not erred in approaching the case on the basis that the burden was on the appellant. Mr Turfan submitted that whilst there may have been “slips and blips” in the Judge’s decision the result of the appeal was inevitable. Mr Gajjar by contrast argued that the Judge’s mistaken understanding that the appellant had to prove his case, was the lens through which his entire assessment of the evidence must be considered and was fundamental to the Judge’s assessment of the evidence and his conclusions about it. On this basis he argued that it was not inevitable that the Judge would have reached the same conclusion had he applied the burden of proof correctly.
20. The respondent’s stance gains some support from the Judge’s twice repeated assessment of the appellant as being a “totally unconvincing witness” (see [24] and [26] of the decision). It is clear from this that the Judge was unimpressed with the account given by the appellant. This no doubt led Lady Justice Laing to express the view that the appellant’s case appeared weak. There are however parts of the Judge’s decision which indicate that his view that the appellant was an unconvincing witness was informed and infected by his misunderstanding about the burden of proof. Lady Justice Laing identified this by her reference in the grant of permission to appeal to the Judge repeatedly saying in the decision that the appellant had failed to provide cogent evidence. A further example comes at [26] where the Judge refers to the appellant failing to produce any evidence to demonstrate that he had prepared for the exams and taken them himself, immediately before recording his view that the appellant was unconvincing. In short, like Lady Justice Laing, I cannot be confident that the Judge’s error was immaterial and that the Judge’s mistaken view that there was a burden on the appellant to prove his case, did not affect his assessment of how convincing the appellant was.
21. It is correct that the Judge three times repeats the conclusion that he found that the respondent has satisfied the higher burden of proof (see [24],[27] and [28] of the decision). On the face of it this also lends support to the respondent’s assertion that it is inevitable that the outcome of the appeal would have been the same even if the Judge had not made the error of law. The Judge’s expressed view that the respondent’s satisfied the higher burden of proof must however be read in the context of the Judge’s confusion about what burden of proof applied. Given that confusion, despite the language used, I cannot be confident that the Judge meant that on assessment of all the evidence he was satisfied that the respondent had established the deception on the balance of probabilities rather than that it had discharged an evidential burden.
22. Overall, I remind myself that the test for finding an error of law had no material impact on the outcome of a decision is a high one particularly where, as here, the error amounts to a failure to follow the correct legal process before coming to a conclusion (see [37] of Abdi v Entry Clearance Officer [2023] EWCA Civ 1455). Whilst the appellant’s case might be considered a weak one and whilst the respondent’s evidence that the appellant used deception is strong (see [128] of DK and RK (ETS SSHD evidence; proof) India concerning the weight of the respondent’s generic evidence of deception in these cases), I remind myself of Megarry J’s evocation of the essence of justice in John v Rees [1970] Ch 345, 402 recently quoted by Lord Justice Popplewell at [37] of Abdi v Entry Clearance Officer:
“it may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. ‘When something is obvious,’ they may say, ‘why force everyone to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start’. Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which somehow were not; of answerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed an unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who paused to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events”
23. Ultimately I accept Mr Gajjar’s submission that the Judge’s error about where the burden of proof lay necessarily affected his assessment of the competing cases with the result that I cannot be satisfied that the result of his assessment would inevitably have been the same had the Judge correctly identified that the burden was on the respondent to prove deception and not on the appellant. Accordingly I find that the error of law made by the Judge was material such that his decision must be set aside.
Remaking the Decision
24. Despite Mr Gajjar arguing that I should remit the appeal for reconsideration by the First-tier Tribunal in the event that the Judge’s decision is set aside, I am satisfied that the circumstances of the appellant’s case, the extended history of these proceedings and the narrow factual issue to be resolved (namely did the appellant use a proxy or take the English language test himself) mean it would be more appropriate for me to retain the matter and remake the decision. In particular there has already been a considerable delay in resolving these proceedings and the additional delay involved in a remittal to the First-tier will not be consistent with the Tribunal’s overriding objective. I note that this as the approach taken by the Tribunal in DK and RK where the appeals had, like this one, been remitted to the Upper Tribunal by the Court of Appeal, and in a similar case referenced in the decision of Lady Justice Laing: Jagtar Ram v SSHD [2023] EWCA Civ 1323.
25. I make directions below to facilitate a further hearing in the Upper Tribunal to remake the decision.

Notice of Decision
The decision of First-tier Tribunal Judge Cohen contains a material error of law and is set aside.
The appeal will be relisted in the Upper Tribunal for a fresh hearing.
Directions
1. The appellant’s appeal will be listed for remaking on the first available date after 7 February 2025. As far as possible (and so long as it does not result in significant delay) the date of hearing is to be set in consultation with the clerk to Mr Gajjar given Mr Gajjar’s longstanding involvement in the appellant’s case.
2. Any further evidence relied upon by either party must be served on the Tribunal via CE File and on the opposing party not less than 7 days before the hearing.

Luke Bulpitt

Judge of the Upper Tribunal
Immigration and Asylum Chamber

9 January 2025