Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000080

First-tier Tribunal Nos: HU/55579/2022
IA/08072/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 11th of September 2025

Before

UPPER TRIBUNAL JUDGE KEITH

Between

The Secretary of State for the Home Department
Appellant
and

Abhishek Korgaonkar
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Ms L Clewley, Senior Home Office Presenting Officer
For the Respondent: Mr A Swain, Counsel, instructed by Eagle Solicitors

Heard at Field House in person on 26 August 2025

DECISION AND REASONS
1. These written reasons reflect the full oral reasons which I gave to the parties at the end of the hearing. For the remainder of these reasons, I will refer to the parties as the Claimant and the Secretary of State, in order to avoid confusion, as this is the Secretary of State’s appeal.
The Judge’s decision
2. The Secretary of State appeals against the decision of a Judge of the First-tier Tribunal dated 28th November 2024, in which she allowed the Claimant’s appeal on human rights grounds. The context of that appeal included a question of whether the Secretary of State had discharged the burden of proving that the Claimant had engaged in a fraud in taking an English language proficiency test administered by a third party, ETS, which is commonly referred to as a ‘TOEIC’ fraud. That is the subject of numerous authorities which I do not repeat in detail except to touch on three which I was cited, namely DK and RK (ETS: SSHD evidence; proof) India [2022] UKUT 112; the more recent Upper Tribunal case of Varkey & Joseph (ETS – Hidden rooms) [2024] UKUT 00142 (IAC); and finally, the case of Ram v SSHD [2023] EWCA Civ 1323.
3. I do not recite the Judge’s decision in detail, except to explain my decision. The Secretary of State accepts that the Judge had reminded himself of DK and RK. If there were any doubt, the Judge referred to it at §§7,14 and §15 of the judgment. The Judge framed his conclusion in the light of the analysis of the reliability of ETS processes at §16. The Judge book-ended the findings in which he accepted the Claimant’s oral and documentary evidence as honest and as having met the Secretary of State’s challenge at §25. The Judge noted the evidence provided by the Secretary of State, but in this case accepted that there would be a certain number of persons who had erroneously been identified as having a voice match suggesting fraud. The Judge found on the evidence that the Claimant had taken the test as he claimed. Although in an Article 8 ECHR proportionality analysis, that was only one part of the balancing exercise, the Judge’s finding of the Claimant’s innocence was a key feature of that analysis. I say more about the precise nature of the findings in a moment.
The Secretary of State’s Appeal
4. The Secretary of State appeals on the basis that in reaching his findings, the Judge had accepted, where he ought not, the Claimant’s bare assertion of his innocence. The Judge’s analysis of the evidence amounted to considering the Claimant’s evidence about his journey to the test centre, the test registration process and some recollection of the test questions. That did not make it credible that he sat the test. It merely placed him at a centre where a proxy had taken the test for him, as explained more generally in a ‘Panorama’ documentary, many years earlier. Candidates did attend test centres and sat next to proxies. The Claimant could have applied for a voice recording, to clear his name and the Judge had failed to consider why, if the Claimant were innocent, that action had not been taken. In essence, the evidence was nothing more than a plea of innocence without a shred of direct evidence that demonstrated the Claimant had taken that test. This Tribunal had made clear in DK and RK that where voice recordings are obtained and they do not match it is highly probative of fraud and an appellant would have to put forward some evidence that is cogent, to rebut such persuasive evidence. In this case, the Claimant had not done that. The Claimant had not asked for the voice recording because he knew it was not his voice. The Judge had failed to consider this.
5. Permission to appeal was granted by a Judge of the First-tier Tribunal on 8th January 2025. The grant of permission was not limited in its scope.
The parties’ submissions
The Secretary of State’s position
6. In elaborating on the grounds of appeal, Ms Clewley argued that the Judge had not taken as their starting point the overwhelming nature of the widespread fraud and where, as here, somebody’s result had been identified as invalid, the likelihood of it being invalid. The Judge had overstated in his analysis a chance of false positives. In fact, when one read §80 of DK and RK properly, the suggestion of 1% of false positives was an overstatement. It was merely a chance of false positives. The Judge had doubted the results of the analysis without good reason. Whilst the Judge had recited DK and RK, he had not applied it. §103 of DK and RK referred to the overwhelmingly reliable nature of that evidence. §79 of DK and RK explained a two-stage process test to identify voices, first through software and then further analysis by human listeners. The Claimant had not answered that evidence. At §107, whilst this Tribunal was cautious to say that the evidence was not determinative, and there may be room for error, (although none of the experts involved had detected any error), it was clear that there was every reason to suppose that the evidence was likely to be accurate. Instead, the Judge had erred by ‘moving the goalposts’ by suggesting that instead of a possibility of 1% or error, that there must be some innocent people. As this Tribunal confirmed in Varkey at §56, to say that it was inherently improbable that none of the many thousands of people who were accused were innocent was to vastly understate the reality, that there was widespread cheating. The act of cheating was not, in that context, an improbable event.
7. Returning to §127 of DK and RK, where the evidence derived from ETS pointed to a particular test result having been obtained by the input of a person who had undertaken other tests and if that evidence were uncontradicted by credible evidence, it was, in this Tribunal’s judgment, amply sufficient to prove that fact on the balance of probabilities.
8. Taking each aspect of the Judge’s analysis of the claimant’s credibility at §23 and §24, it amounted to an assessment of a protestation of innocence. The Judge considered that the Claimant’s level of detail in recalling events was consistent with the passage of time (the test was taken many years earlier) and focussed on a remembering a particular test room and the journey to the centre, rather than the content of the questions. There was an appearance of candour and the readiness with which the Claimant had answered questions. The Secretary of State argued that this was simply not enough. The fact that a party may have some recollection of the contests of the test, for example at §21, was also not sufficient. Notably at §94 of DK and RK, the party in that case had been able to give evidence about the test questions and was still disbelieved. As §4(e) and (f) of Varkey and 11(i) of DK recorded, a fraud could still have been committed, even if somebody had attended the test centre with a proxy. As illustrated at §86 of DK, the evidence needed to cast serious doubt on the ‘lookup’ test results adduced from ETS. Details of the journey to and of the test centre setting was not sufficient. RK had been able to give such details at §99 and that was not sufficient to discharge the burden.
9. The fact that there was oral evidence given consistently was also not enough (see §14 of Ram). When I queried with Ms Clewley whether she was saying that the judgment had been perverse, she did not go that far and returned to the Secretary of State's grounds. Rather, the Judge had not explained the context of the background evidence in framing his conclusions. When I queried the criticism of the Claimant not seeking the voice recording by reference to the emails in the bundle and in the skeleton argument which appeared to suggest that the Claimant had asked ETS and was refused, which evidence was apparently unchallenged by the Secretary of State before the Judge, Ms Clewley submitted that the Judge should have made a finding as to whether the Claimant had made all reasonable endeavours to obtain the recording, as to the authority of TK (Burundi) v SSHD [2009] EWCA Civ 40. Instead, the reader was left knowing not what the Claimant’s position was as to why the test result was incorrect or whether he said, for example, that there had been a ‘chain of custody’ issue or mix up with the recording. There needed to be an exploration and understanding of the Claimant’s case and whether the Judge accepted or rejected this. The Judge’s consideration of the fact that the Claimant spoke excellent English was a further error.
The Claimant’s Submissions
10. The Claimant relied on a ‘Rule 24’ response. In arguing that the Judge had not erred in law, the Claimant reiterated that the judge had expressly referred to DK and RK throughout the determination, including at §7 and §15, also with express reference to §130 of DK and RK, namely that while the voice recognition process was not conclusive, in general, there was no reason to doubt the result of the analysis. At §17 to §25, the Judge set out in detail the Claimant’s documentary and oral evidence. The latter was given in person, at a hearing lasting approximately 1.5 hours. Having had the benefit of considering the Claimant’s evidence in extensive cross-examination, the Judge gave a series of reasons why the Claimant had not cheated. The Claimant had given credible answers about the speaking test results (§21). He had not embellished the evidence. He had given his answers instinctively and without deliberation. He had successfully sat an uncontested English-speaking test in 2014 soon after the disputed test in 2013. He was able to recall his journey to the test centre and the environment in which he took the test, which, having considered all of the evidence, led the Judge to fairly and reasonably find that the evidence was consistent. The Judge was very aware, pursuant to DK and RK that the evidence relied on by the Secretary of State required a response. The Judge correctly noted, by reference to DK and RK, that there remained a possibility, albeit very low, of ‘false positives,’ i.e. a certain number of people who will have been erroneously identified as matching multiple tests. The assertion in the grounds of appeal that the Claimant had not provided a ‘shred of evidence’ that he had not cheated was wrong. Moreover and as pointed out in oral submissions, a suggestion that the Claimant had not relied upon trying to obtain a copy of the test recording was also wrong. The Claimant had referred to that specifically in the skeleton argument before the Judge and the emails were in the bundle before the Judge. In addition, the Secretary of State had taken no issue with that in its review, although as Ms Clewley points out, there had been a reference to Varkey.
11. When one looked at the email correspondence, between the Claimant and ETS at pages [61] to [66] of this Tribunal’s bundle, it was tolerably clear that ETS had indicated that a duplicate copy of the recording could not be provided more than two years after the test was taken. In this context, Mr Swain, who appeared before the Judge, also confirmed that it was not even by the stage of his skeleton argument before the Judge that the Secretary of State had given the Claimant the look-up result. The Claimant had been more pro-active than the Secretary of State, on whom the burden lay. The Claimant had done everything that he could in the circumstances and that was in contrast to DK and RK where the test results had been obtained and it was confirmed that the voice recordings were not theirs. That was an important part of the context.
12. In reality, this was a perversity challenge where the Secretary of State's position now was that anyone who had an invalid test result was effectively ‘sunk’. That was not a fair analysis of DK and RK and indeed the passages cited made clear that although cases were likely to be rare, because of the overwhelmingly reliable evidence, this was not the same thing as the test being conclusive, as per §103 of DK and RK. All this meant was that in general there would be no good reason to doubt it (§107). It could be met by credible evidence and here the Judge had explained why there was credible evidence. The analysis in this case was different from DK. First, the Claimant had sought to obtain a copy of a recording. Ms Clewley’s challenge that the Judge ought to have understood and analysed the Claimant’s case on why the voice recording was not his, including various possibilities such as a chain of custody, ignored the point that the Claimant did not have the recording, so could not speculate as to why there was an error. §129 of DK similarly did not assist the Secretary of State. The Claimant’s case was not one of mere assertions. The Claimant had provided witness evidence both written and orally. He had been the subject of concerted cross-examination by the Secretary of State at the hearing before the Judge and his evidence had stood up to challenge, in the context of where he had sought a copy of the recording. Here, as noted in the skeleton argument, the Secretary of State had not even provided a spreadsheet which indicated the precise nature of invalidity. In terms of an application of the law, throughout the judgment, from the very beginning at §7 to §25 the analysis had, at its core, a consciousness of the overwhelming nature of evidence that the Claimant had to meet, but in this rare case that he had done so. That conclusion was open to the Judge.
Discussion and conclusions
13. I first remind myself that it is not the function of this Tribunal to substitute its view for what it would have found. Rather, the question is whether the Judge erred in law.
14. I start by accepting Mr Swain’s submission that the Judge at the very beginning of an analysis of the evidence at §15 reminded himself of the authority of DK and RK. True it is that there is not a separate reference to Varkey, but Varkey was entirely consistent with that analysis and then went on to consider various different scenarios, some of which were touched on in DK and RK as to how people might be able to cheat. In particular, there was an analysis of the so-called ‘hidden room’ scenario. However, and as is sometimes the case, there may always be a risk that a judge cites the case at the beginning but then does not go on to apply it in their findings. Alternatively, even where they have referred to it in their findings, that they had done so in way where it is tolerably clear that they have misapplied the law. I am satisfied that neither has occurred in this case.
15. First, as Mr Swain points out, there are references throughout the findings. In particular, at §14 and the ‘lookup’ evidence, the Judge discussed that DK had identified that an ‘invalid’ result related to a voice match and at §15, that the lookup evidence was amply sufficient to discharge the burden of proof and so required a response. Importantly DK and RK contained a detailed analysis of the expert and other evidence and noted Dr Harrison’s view that there might be a false positive rate of 1%.
16. The Judge was conscious that it might be a false positive rate although as Mr Swain points out it could be as high as 3%. But the Judge in this case was not doing a mathematical calculation because it is very clear from §15, where he cites §103 of DK and RK,
“We conclude that the voice recognition process is clearly and overwhelmingly reliable pointing to an individual test entry as a product of a repeated voice. By ‘overwhelmingly reliable’ we do not mean conclusive, but there is in general no good reason to doubt the result of the analysis.”
The Judge’s recitation of that law, having started the findings, could not be clearer. If it needed reemphasising, he did so by referring to ‘in light of the analysis’ he attached significant weight to the invalid test result, at §16.
17. The Judge then went on, logically, to consider the factors that were relevant as to why the Claimant had met the challenge. It is true that the Judge did not refer expressly to any contested challenge as to the Claimant seeking a copy of the ETS recording. However, I bear in mind that a Judge can be expected to have considered all the evidence to which they have been referred and I also note that the assertion was expressly included in the skeleton argument and the emails were in the bundle before the Judge, as to which there was apparently no disagreement taken in the Secretary of State’s review. In simple terms there is, at least on the face of it, clear documentary evidence put before both the Secretary of State and the Judge as to an email exchange between the Claimant and ETS before the hearing, in which ETS indicate that because the request was made more than two years after recording in question, (in this case nearly a decade after the recording), it was (unsurprisingly) not available. It might be said that there could be criticism of the lateness of the Claimant’s request, but that is not a point advanced in the Secretary of State’s review. I am therefore not satisfied that the Judge erred in failing to consider and explain or make a finding that the Claimant had made reasonable endeavours to obtain that evidence. That was a case positively advanced and apparently not contested and the judgment, when read as a whole, can be assumed to have taken that into account.
18. In terms of the other reasons, what is said is that the factors identified by the Judge in detail around the Claimant’s journey to the test centre, what he recalls of the building, those with whom he took the test, the process by which he had enrolled, the rubric of the test questions on one or two of the questions, which were all answered without hesitation, were not capable of discharging the burden. Whilst on the one hand, in the context of §14 of Ram, it might be said that an ability to recall without hesitation and give consistent evidence is not able to discharge the burden, on the other, that is to take that reference in isolation. The point here is that it was not only the Claimant’s oral evidence, but his written evidence and the case advanced, that he had sought to obtain a copy of the ETS voice recording.
19. There is a further answer to the question of whether it was permissible for the Tribunal to have considered the evidence as to the test centre and the travel to it, etc. Whilst in DK and RK this Tribunal emphasised the overwhelming reliability of the evidence that the Secretary of State had, nevertheless, when this Tribunal itself went on to consider the appeals at §130 to §137, the Tribunal carried out an assessment of the credibility of the accounts. For example, it did not accept DK’s evidence at §132 and regarded RK’s evidence at §134 as being ‘wholly incredible.’ In other words, the Tribunal itself in DK and RK did not, as Mr Swain pithily put it in submissions, regard the lookup evidence as meaning that the claimants were “sunk.” Rather, it went on to consider the wider evidence. That is exactly what the Judge in this case did.
20. The decision in this case is further removed from DK and RK by the fact that criticisms for the Claimant’s framing of his case, as to whether there had been disruption in the chain of custody or whether he was a false positive, can only be answered by somebody who has a copy of the voice recording, when the Claimant does not. While I do not lay down any general principle, in this case, the Claimant had adduced all the evidence that was available to him, namely the circumstances of the test taking.
21. On the Secretary of State’s challenge as to the incorrect weight that the Judge placed on the Claimant’s ability to speak English, the Judge himself in fact attached a relatively small amount of weight to it (§24) particularly bearing in mind the passage of time that had passed since the Claimant took the case many years earlier.
22. In summary, at the core of this appeal is the Secretary of State’s position that the Judge had not correctly framed his analysis of the evidence in the context that the ETS ‘lookup tool’ evidence was overwhelming. In rejecting that, I conclude that the Judge had clearly done so, in the context where the voice recording was not available and he had nevertheless considered whether there was countervailing credible evidence, because the look up tool evidence was not determinative. He regarded the witness evidence, following sustained cross-examination, as compelling and ultimately sufficient to meet the overwhelmingly reliable evidence. The Judge was entitled to reach that conclusion and I am satisfied that his decision was sufficiently reasoned and not based on a misdirection in law that meant that he was merely accepting a bare protestation of innocence. Instead, what he was assessing was a detailed account of the circumstances of test taking when realistically the Claimant could have adduced no other evidence.
23. The Secretary of State’s appeal in these circumstances fails and is dismissed. It only remains to thank both representatives for the quality of their submissions, which have assisted me in reaching my decision.
Notice of decision
24. The Secretary of State’s appeal is dismissed.
25. The decision of the First-tier Tribunal is upheld.

J Keith

Judge of the Upper Tribunal
Immigration and Asylum Chamber

29th August 2025