Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001232

First-tier Tribunal No: HU/00356/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

27th June 2025

Before

UPPER TRIBUNAL JUDGE NEVILLE

Between

GHULAM USMANI
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr P Lewis, counsel instructed by AWS Solicitors
For the Respondent: Ms A Nolan, Senior Home Office Presenting Officer

Heard at Field House on 13 May 2025

DECISION AND REASONS

1. Mr Usmani came to the United Kingdom on 5 September 2010 as a student. On 3 December 2012 he applied for a further period of leave, the rules requiring him to submit an English language certificate. On 5 April 2016 the Secretary of State decided that Mr Usmani had obtained that certificate by dishonestly having someone else sit two of the tests for him, so refused his application. Mr Usmani appealed to the First-tier Tribunal, which on 17 October 2017 found that the Secretary of State’s allegations were made out and dismissed the appeal.
2. On 10 February 2021 Mr Usmani made another application for leave that included fresh evidence on the issue of whether he had taken the tests himself. That application was refused on 31 January 2024, but on 29 January 2025 the FtT allowed Mr Usmani’s appeal against that decision. The FtT Judge considered all the evidence provided and found that taken together it justified departure from the findings made by the FtT in the previous appeal. He accepted Mr Usmani’s evidence and found that he had not used deception.
3. The Secretary of State applied for permission to appeal, which was granted by a different FtT Judge. I am sorry to say that the grounds of appeal are very poorly drafted. They were not drafted by Ms Nolan, who still had to argue the Secretary State’s best case before me; she deserves credit for skilfully drawing out two coherent arguments from grounds that are otherwise incomprehensible.
4. Before turning to those arguments, I observe that numerous authorities have re-emphasised the caution with which an appellate tribunal must approach findings of fact. Carr LJ (as she then was) gave the following guidance in Clin v Walter Lilly & Co Ltd [2021] EWCA Civ 136:

“85. In essence the finding of fact must be plainly wrong if it is to be overturned. A simple distillation of the circumstances in which appellate interference may be justified, so far as material for present purposes, can be set out uncontroversially as follows:

i) Where the trial judge fundamentally misunderstood the issue or the evidence, plainly failed to take evidence into account, or arrived at a conclusion which the evidence could not on any view support;

ii) Where the finding is infected by some identifiable error, such as a material error of law;

iii) Where the finding lies outside the bounds within which reasonable disagreement is possible.
86. An evaluation of the facts is often a matter of degree upon which different judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and appellate courts should approach them in a similar way. The appeal court does not carry out a balancing task afresh but must ask whether the decision of the judge was wrong by reason of some identifiable flaw in the trial judge’s treatment of the question to be decided, such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion.”
To like effect are the observations in Volpi v Volpi [2022] EWCA Civ 464, at [2].
Ground 1 – impermissible reliance on Mr Usmani’s use of English
5. The Secretary of State asserts that the Judge mistakenly focused his analysis on whether Mr Usmani had a motive to cheat, and in doing so substituted that issue for the actual test: whether the Secretary of State had discharged the burden of establishing it as more probable than not that Mr Usmani acted dishonestly.
6. That test is most recently set out in Varkey & Joseph (ETS - Hidden rooms) India [2024] UKUT 142 (IAC). The Upper Tribunal authoritatively traversed the development of cases concerning the use of deception in tests administered using ETS systems. I do not set out all the guidance given, but do take it all carefully into account. So too did the Judge, who continually engaged with the case throughout his decision. Indeed, Mr Lewis had adduced expert evidence to persuade the Judge that the principal conclusions drawn in Varkey were wrong; that argument was rejected.
7. On the specific issue of motive, the Upper Tribunal in Varkey referred to the judgment of the Court of Appeal in Ahsan v SSHD [2017] EWCA Civ 2009, which at [24] included “evidence that their spoken English was very good and that they thus had no motive to cheat” as an example of supporting evidence that an individual might deploy in support of their case. It also referred to RAM v SSHD [2023] EWCA Civ 1323 at [15], where the reasoning of the judge below that deception had been employed was upheld, as follows:
111. To put what was said by Underhill LJ in paragraph [15] in context, the Upper Tribunal judge had considered the appellant's claim that he had studied the English language in India. The judge accepted there may have been some improvement in his English language ability during the ten months in this country, but went on to note that there may be many reasons as to why somebody with a reasonable command of the English language might use a proxy taker, for example fear of the adverse impact of failure, or a concern as to failure consequent to nerves. See MA (ETS - TOEIC testing) [2016] UKUT 450.
112. Mr Ó Ceallaigh submits the decision of the Upper Tribunal in MA was specific to the facts where MA was hopelessly lacking in credibility on a range of issues. He submits that where a person is entirely lacking in credibility, that cannot be displaced by the fact that they speak good English, but that was elevated in DK and RK, to a point of principle. We do not accept that submission. At paragraph [108] of the decision in DK and RK, the Tribunal was addressing the evidence of Professor Sommer to the APPG that one of the features of evidence that one would look for is corroboration. It is obvious that if an individual displays a grasp of the English language that is lower than that required for the test, that is likely to weigh against the individual. The Tribunal used the phrase "incompetence in English", and a judge must be careful not to fall into the trap of conducting some assessment of the individual's competence in the English language. That does not in any way undermine what was said in MA:
“57. ... In the abstract, of course, there is a range of reasons why persons proficient in English may engage in TOEIC fraud. These include, inexhaustively, lack of confidence, fear of failure, lack of time and commitment and contempt for the immigration system. These reasons could conceivably overlap in individual cases and there is scope for other explanations for deceitful conduct in this sphere....”
8. In this appeal, after describing Mr Usmani’s evidence on his English language ability, the Judge relied upon it as follows:
38. The appellant applied in plenty of time before the end of his student visa and indeed had the opportunity of taking the test twice because he failed the first time. I also note that he took the Pearson language test and passed this. I find the appellant’s account to be credible because it is consistent before me today with his witness statement and the previous evidence to before Judge Gillespie. It is also consistent with the documentary evidence supporting all of his statements. I find that he could speak English when he came to the United Kingdom and there would have been no motivation for him to cheat. In reaching this conclusion I acknowledge that there may be a wide range of motivations as to why people cheat and lack of English is not the sole reason. I do not take into account the English expressed at the hearing today which was flawless.
39. I have been provided with more detail than Judge Gillespie and consider it to be unlikely that the appellant would have needed to cheat. This finding alone would not permit me to depart from Judge Gillespie’s finding based on Devaseelan. What is more important is that we are now privy to much wider knowledge about the range of possible scenarios relating to the proxy taking. If Judge Gillespie had had such technical information this may have impacted his view about the 100% failure rate and his view about the certificates that demonstrated that the appellant took one test and a proxy took another because he stated that this inference had no evidential value without knowledgeable analysis. Furthermore, the crucial piece of evidence before me today are the two voice recordings which the parties agree are not those of the appellant.
9. I am unable to accept Ms Nolan’s argument that the Judge elevated the need to cheat above a mere evidential factor. Not only did he disclaim any reliance at all on the level of English displayed at the hearing (the emphasis of the word “not” at [38] is his), but in acknowledging the “wide range of reasons” plainly had in mind the discussion in Varkey I have set out above. More fundamentally, at [39] the Judge observed that this factor alone would not justify departure from the previous findings. He instead described as “crucial” the feature of the evidence challenged in Ground 2.
10. The discussion in Varkey above continues as follows:
113. A judge has to start somewhere. The evidence before us simply serves to re-enforce the fact that there was widespread fraud and cheating at ETS test centres. As the Tribunal said in DK and RK, it is clear beyond peradventure that where there is evidence from ETS that points to the test relied upon by the individual as having been taken by someone other than that person, that is strong evidence that will weigh against the individual and calls for a credible explanation.
114. The parties agree that a Tribunal must consider the evidence before it as a whole and the decision will be fact sensitive. In reaching its decision, the Tribunal must survey the wide canvas of evidence before it. The factual determination must be reached on the basis of all available materials, and the Tribunal must consider each piece of evidence in the context of all the other evidence.
11. The Judge’s approach to the issue of English language ability entirely accords with the task described by the Upper Tribunal, and he was entitled to place the limited reliance he did on that factor as part of the canvas of evidence before him.
Ground 2 – the Judge’s approach to the voice recordings
12. The context to this ground is that Mr Usmani failed his speaking test on 23 May 2012, scoring 150, but scraped a pass on a second attempt a week later, with a score of 160. The first test was flagged by ETS as ‘questionable’, and the second test as ‘invalid’. The distinction between the two was explained in DK and RK (ETS: SSHD evidence; proof) India [2022] UKUT 112:
13. […] There followed a very lengthy process in which ETS was required to examine and verify the results obtained at all colleges for which it was responsible. By the end of March 2014 ETS had identified numerous cases of impersonation and proxy testing, using voice recognition software. By the time ETS had analysed 10,000 results, it was clear that a majority of the results had been obtained by fraud. These results were declared "invalid", on the evidence that the voice identified as having provided the answers to oral tests was a voice that had provided answers to another person's oral tests. ETS regarded the evidence of proxy test-taking or impersonation in those cases as "certain". The verification techniques developed during the course of the process, and included both preliminary matching by voice recognition software and then human verification. At one stage the software had identified 33,000 fraudulent results: over 80% of them were then verified as positive by individual human analysis.
14. As well as in this way identifying a large number of results as "invalid", ETS also classified certain results as "questionable". A "questionable" result is one in which there is evidence of test administration irregularity, including the fact that the test was taken at a UK testing centre where numerous other results had been invalidated. ETS cancelled (that is to say, withdrew their certification of) the results in both "invalid" and "questionable" cases. The consequence is that the candidates in question have no current certification of their competence in English. Only, however, in cases where the test result was identified as "invalid" did the Secretary of State consider taking action against the individual on the basis of fraud.
13. In its 2017 findings, the FtT rejected that Mr Usmani’s account of having taken and failed the first test supported his case, instead holding that failing the first test and wishing to make sure he passed the second was “at least as arguably indicative of motivation for deception”.
14. Since that previous appeal, Mr Usmani obtained a copy of the voice recordings of those tests, only to find that he featured in neither. Detailed questions were sent to ETS by his solicitors in response, in particular requesting verification of whether the first recording had definitively been verified as relating to the correct exam session and to Mr Usmani in particular. ETS had declined to provide any further information.
15. The Judge treated this new evidence, taken together with that discussed in Varkey and other recent authorities, as justifying departure from the previous findings of the FtT. Insofar as this is challenged by the Secretary of State, I disagree. The proper application of the ‘Devaseelan guidelines’ is conveniently summarised by Rose LJ in SSHD v BK (Afghanistan) [2019] EWCA Civ 1358 at [32]-[38], with which the Judge’s approach accords. Ms Nolan did properly decline to pursue the further assertion in the grounds that the Judge unduly speculated on why the previous findings were made; the Judge correctly concentrated on whether the evidential picture had changed and was entitled to find that it had.
16. As noted in relation to Ground 1, the Judge placed significant weight on this new evidence. He did so after considerable analysis and consideration of an expert report provided by Mr Stanbury, who had also given evidence to the Upper Tribunal in Varkey. The Upper Tribunal accepted his evidence on technical matters but found that the ‘hidden room’ method, whereby innocent candidates took the test but false recordings were still uploaded, was less likely than Mr Stanbury opined. The Judge took careful account of that discussion, in particular what was said by the Upper Tribunal at [102]:
102. There is evidence of some methods having been adopted by test centres and there is hypothesis about other methods. We accept there are, at least in theory, a range of ways in which the fraud and cheating was capable of being perpetrated. We say 'in theory' because although the theoretical possibility of any method cannot be ruled out, and there is a wealth of evidence of the less sophisticated methods adopted in which the candidate is complicit in the fraud, the evidence regarding more sophisticated methods is sparse and borders on simple speculation.
17. After acknowledging the argument made in the present appeal that a degree of speculation was inevitable, the Judge declined to make a positive finding that a hidden room was used in accordance with Mr Stanbury’s opinion. He did accept that the overall evidential picture caused damage to the reliability of the ETS evidence, by which he meant identification of the results as ‘invalid’. This was carried forward into his overall balancing of the evidence.
18. Ms Nolan argued that the above approach to the reliability of the evidence relied upon by the Secretary of State was irrational. In DK and Varkey, there had been detailed and authoritative analysis of the chain of custody for audio files and the integrity of the systems used by ETS. The evidence in the present appeal, Ms Nolan argued, provided no basis upon which any judge could rationally depart from it.
19. Carefully considering the Judge’s decision, I reject that the Judge committed any error of law in reaching his findings of fact. First, as set out in the Practice Direction from the Senior President of Tribunals: Reasons for decisions, providing adequate reasons does not usually require the FtT to identify all the evidence relied upon in reaching its findings of fact, to elaborate at length its conclusions on any issue of law, or to express every step of its reasoning. In that respect, a fair reading of the reasons overall discloses that the Judge anxiously and conscientiously applied the analysis in Varkey.
20. Second, the Judge did not decide that the Upper Tribunal’s findings on the reliability of ETS evidence in Varkey and RK was wrong; the Judge explicitly states the opposite conclusion at [41]. Instead, the reasons can be fairly taken as finding that the particular evidence in this appeal, including the distribution of test results and the flagging of the first test as ‘questionable’ instead of ‘invalid’ despite a third party being used and a proxy having failed the test, as reducing the weight carried by the ‘invalid’ designation when considering the overall balance of probabilities.
21. Nothing in Varkey rules out that possibility, and the authority cannot be read as imposing upon all finders of fact a permanent, immutable fixed level of reliability that must always be afforded to ETS designation. The Upper Tribunal instead reiterated the importance of considering the wide canvas evidence to decide whether the deception alleged happened or not. There was no error of law in the Judge’s clearly explained, conscientious factual analysis.
Notice of Decision

(i) The Secretary of State’s appeal to the Upper Tribunal is dismissed.

(ii) The decision of the First-tier Tribunal to allow Mr Usmani’s appeal stands.

J Neville
Judge of the Upper Tribunal
Immigration and Asylum Chamber

25 June 2025