Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001337

First-tier Tribunal No: HU/52548/2021
IA/08275/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 18th of September 2025

Before

UPPER TRIBUNAL JUDGE BLUNDELL
and
UPPER TRIBUNAL JUDGE HIRST

Between

MD AKTARUZZAMAN
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr P Lewis, instructed by Lawmatic Solicitors
For the Respondent: Mr K Ojo, Senior Presenting Officer

Heard at Field House on 13 August 2025

DECISION AND REASONS
1. The appellant appeals with the permission of Upper Tribunal Judge Rimington against the decision of First-tier Tribunal Judge Jarvis (“the judge”). By his decision of 5 January 2025, the judge dismissed the appellant’s appeal against the respondent’s refusal of his human rights claim, finding that he had used deception in a previous application for leave to remain and that it would be proportionate to remove him from the United Kingdom.
Background
2. This is what has come to be known as an “ETS case”. The appellant is one of the 66,4711 people who took a Test of English for International Communication (“TOEIC”) between 2011 and 2014. He is also one of the 33,663 people whose results were declared by the Secure English Language Test (“SELT”) provider – Educational Testing Services (“ETS”) – to be “invalid”. That word was communicated to the Home Office in 2014, who took it to mean that ETS had decided that the appellant had used a proxy to take the speaking component of the TOEIC test, and set in train the course of events which culminated in the decision under appeal.
3. The appellant is a Bangladeshi national who was born on 5 March 1982. He arrived in the United Kingdom on 11 January 2009. He held entry clearance as a Tier 4 General Student which was valid until 31 March 2011. Following an application, his leave was extended to 30 April 2014 but that leave was curtailed in 2012 when the sponsoring college lost its licence. The appellant was permitted sixty days within which to regularise his position.
4. Within those sixty days, the appellant made an application for further leave in the same capacity so that he could study for a Graduate Diploma in Business Management. The Certificate of Approval for Studies which the sponsoring college issued in support of the application showed, amongst other things, that the appellant had produced a TOEIC certificate from ETS which showed that he had achieved level B2 in the Common European Framework of Reference for Languages (“CEFR”), which met the level required for a student above degree level. The certificate which gave the appellant’s results for the Speaking and Writing components of the test showed that he had achieved full marks (200/200) in the Speaking test and 190/200 in the Writing test.
5. The appellant’s application for further leave as a student was successful and he was granted leave to remain in that capacity until 28 November 2015. That leave was also curtailed when the new sponsor lost its licence. Once again, the appellant was given sixty days in which to regularise his position, and once again he made a further application within that period.
6. On 10 February 2014, the BBC’s Panorama programme revealed that there had been cheating at two ETS test centres (Eden College and Universal Training Centre), which included “fake sitters” who took speaking tests in place of the actual candidate. Extensive discussions between ETS and the Home Office ensued, culminating in a visit by a Home Office delegation to ETS Head Office in New Jersey in June 2014.
7. A statement from one member of that delegation, Peter Millington, stated that ETS had explained during that visit what it was doing to detect cheating in TOEIC tests. It had sourced “voice biometric technology” from an unnamed vendor, so as to analyse the recorded voices of test takers and to “match” instances in which one person had taken more than one test. Following a successful trial, ETS decided that the use of this technology would be “an effective measure to deploy retrospectively to provide an analysis of previous UK TOEIC test results”. Mr Millington went on to explain how ETS planned to use the software, and to verify any “matches” which it had identified by using staff who had received mandatory training in voice analysis. Each match would be considered independently by two of these analysts. Where the analysts agreed that the person was not the same, the case would be treated as a match. Mr Millington considered the results of this process to be reliable, and that the approach adopted mitigated “significantly against the risk of a false positive”. ETS had identified thousands of cases in which their analysis had led them to conclude that an imposter had been involved, which would result in the cancellation of the test score.
8. On 24 November 2014, the appellant was notified by the Home Office that he was considered to be a person who had sought leave to remain by deception, and was to be removed under section 10 of the Immigration and Asylum Act 1999. The IS151A which conveyed that decision gave the following reasons:
For the purposes of your application dated 1st June 2012, you submitted a certificate from Educational Testing Services (“ETS” to the Home Office.
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 Home Office that there was significant evidence to conclude that your certificate was fraudulently obtained by the use of a proxy test taker. Your scores from the test taken on 29th June 2012 at Colwell College have now been cancelled by ETS.
On the basis of the information provided to her by ETS, the SSHD is satisfied that there is substantial evidence to conclude that your certificate was fraudulently obtained.
9. The appellant was entitled to appeal against the s10 decision, but only after he had left the United Kingdom.
10. There was then considerable litigation in the Upper Tribunal, the High Court and the Court of Appeal about the Secretary of State’s stance in other such cases and, particularly, about the adequacy of an out-of-country right of appeal in these cases. It is not necessary for the purposes of this decision to chart the authorities in detail. We will return to the current state of the law in due course.
11. The appellant made an application for judicial review in the Upper Tribunal (JR/10811/2014), which was dismissed by UTJ Rintoul on the basis that the out-of-country right of appeal was an adequate remedy. The appellant applied for permission to appeal to the Court of Appeal. His application was stayed, in common with many others, to await the outcome of Ahsan et al v SSHD [2017] EWCA Civ 2009. That case having been decided, the respondent reviewed her position and settled the proceedings by consent on 3 March 2021.
12. The Order which was approved by Master Meacher was in essentially standard form, agreeing that the appellant had made a human rights claim which would (if refused) attract an in-country right of appeal. The Order recorded that the respondent agreed that, if it was found in the appeal that the appellant did not cheat in his test, the respondent would take “reasonable steps to put the Appellant into the position he would have been” had the allegation not been made.
13. The appellant’s human rights claim was refused on 11 May 2021. The respondent set out the history of the matter and the documents she had considered. She did not consider the appellant to meet the Immigration Rules. In particular, she considered that he did not meet the suitability requirement in paragraph S-LTR 4.2 of those Rules. She reached that conclusion because:
The Secretary of State is satisfied that you made false representations for the purpose of obtaining leave to remain or in order to obtain documents from the Secretary of State or a third party in support of the application for leave to remain. In an application dated 01 June 2012, you used an ETS certificate dated 20 June 2012 from Colwell College, which upon checking, ETS (Educational Testing Service) confirmed was invalid. On the basis of the information provided to her by ETS, the SSHD is satisfied that your certificate was fraudulently obtained and that you used deception in your application of 01 June 2012. Accordingly, I am satisfied that you have made false representations in a previous application for leave to remain. Having considered all of the circumstances of your claim, in light of these false representations, there are no exceptional circumstances which make it appropriate to exercise discretion in your favour.
14. The respondent considered that the appellant’s removal would be a proportionate step under Article 8 ECHR. The application was therefore refused.
15. The appellant appealed to the First-tier Tribunal. His appeal was initially dismissed but that decision was set aside by UTJ Lindsley and the appeal was remitted to be heard afresh by a different judge.
16. So it was that the appeal came before Judge Jarvis, sitting at Taylor House on 12 December 2024. The appellant was represented by Mr Lewis of counsel, as he was before us. The respondent was represented by a Presenting Officer, Ms Iqbal. The judge heard oral evidence from the appellant (in English) and submissions from the advocates before reserving his decision.
The Decision of the First-tier Tribunal
17. The judge’s reserved decision is carefully structured and reasoned. The following summary of it is not intended to be comprehensive but to provide an outline of the strands of the judge’s reasoning so as to inform our consideration of the grounds of appeal.
18. Having set out the relevant background and a summary of the respondent’s refusal, the judge made reference at [12]-[18] to the events which had preceded the remitted hearing, which included a failure on the part of the respondent to reply in writing to a supplementary skeleton argument which Mr Lewis had settled on 15 October 2024. That oversight, and the Presenting Officer’s belief that similar arguments were being considered in a pending case before the Upper Tribunal, caused her to apply for an adjournment. The judge refused that application but he did give the Presenting Officer some additional time.
19. At [19]-[23], the judge made reference to the appellant’s oral evidence, including the fact that he had acceded to Mr Lewis’ application to treat the appellant as a vulnerable witness and had introduced the proceedings to the appellant accordingly.
20. At [24]-[31], the judge set out a detailed summary of the competing submissions. From [33], he set out his findings on the evidence adduced by the parties. He began his analysis with reference to another ETS case - SSHD v Patel [2022] EWCA Civ 36 - in which William Davis LJ (with whom Moylan and King LJJ agreed) said that
“the initial evidential burden which lay on the SSHD to show deception was satisfied by the evidence filed. In the ordinary case it would then be for the appellant to adduce sufficient evidence raising an innocent explanation.”
21. At [35]-[43], the judge, under the sub-heading “The status of the Upper Tribunal’s decision in Varkey & Joseph”, the judge dealt with Mr Lewis’s submission that he was entitled to depart from the conclusions reached by the Upper Tribunal in that decision. He did not accept that he was entitled to depart from that decision insofar as it was based on the same factual matrix before him and he rejected Mr Lewis’s submission, made in reliance on SSHD v BK (Afghanistan) [2019] EWCA Civ 1358, that he was entitled to consider what was said to be a series of errors in that decision which undermined the conclusions reached.
22. At [44]-[49], under the sub-heading “The evidence of criticism of ETS”, the judge considered and rejected Mr Lewis’s submission that various criticisms expressed about ETS should cause him to differ from the views expressed in DK & RK (ETS: SSHD evidence, proof) India [2022] UKUT 112 (IAC) about the reliability of the evidence from the company. At [50]-[53], the judge considered the report from the National Audit Office to which we have referred above and refused Mr Lewis’s request to attach particular significance to that report.
23. At [54]-[57], the judge returned to the appellant’s criticisms of Varkey & Joseph, which concerned the limited weight which was given to one of the expert witnesses in that case, Mr Stanbury. The judge concluded that there was no merit in Mr Lewis’s criticism of the tribunal’s decision insofar as he took issue with its suggestion that Mr Stanbury had been speculating. At [58]-[63], therefore, the judge directed himself in accordance with the decision in Varkey & Joseph, during which he indicated that he would proceed on the basis that the appellant “has a case to answer.”
24. At [64]-[70], under the sub-heading “The context of the TOEIC test”, the judge took account of the appellant’s academic career in Bangladesh and the UK, and the circumstances in which he had come to take the contested test at Colwell College on 20 June 2012. The judge noted amongst other things that the appellant had learned on or around 17 May 2012 that he had failed the Writing component of the first TOEIC test he had taken at a different college, and that his leave to remain was due to expire on 4 June 2012.
25. At [71]-[79], the judge undertook an analysis of the appellant’s evidence. He thought that the evidence about the test on 20 June 2012 was “problematic” and had been undermined in cross-examination. The judge took account of the appellant’s difficulty in expressing himself in English and considered that he had provided little information about the test in his witness statement. The judge took account of Mr Lewis’s submission that the appellant had passed the first Speaking test he had taken at a different college. He considered that the point was important but not decisive; the appellant had been under real pressure of time after he had failed the Writing component of the first test, which “must have affected his confidence to some extent”.
26. In the final paragraphs of his decision, the judge returned to DK & RK’s conclusion that “there were high levels of cheating across the board in colleges where ETS found the use of proxy test takers.” He did not consider the fact that ETS had not responded to questions in this case to be significant: there was “no other evidence before the Tribunal to support the contention that the appellant did not use deception or did not know that deception had been deployed on his behalf.” Having reminded himself of the fifth and sixth paragraphs of the headnote to Varkey & Joseph, the judge concluded that it was more likely than not that the Appellant cheated in the 20 June 2012 TOEIC speaking test. The appeal was therefore dismissed.
The Appeal to the Upper Tribunal
27. Permission having been refused by the First-tier Tribunal, Mr Lewis settled five grounds of appeal in support of the renewed application. The grounds might be summarised in the following way:
(1) The judge reached an irrational finding or failed to give adequate reasons for finding that the appellant, who had passed the first Speaking test at a different college, would nevertheless have chosen to use a proxy for the Speaking test at Colwell College.
(2) The judge misdirected himself in law in respect of the precedential status of Varkey & Joseph.
(3) The judge failed to engage with – and therefore provided inadequate reasons for rejecting – the appellant’s criticisms of Varkey & Joseph.
(4) The judge’s criticism of the appellant’s oral evidence, including lack of detail and recall, was unreasonable and incorrect.
(5) The judge had failed to have regard to ETS’s failure to respond to questions asked of it by the appellant’s solicitors and had reached an irrational conclusion in respect of ETS’s ability to match voice recordings to candidates several years after the test.
28. In granting permission on each of those grounds, Judge Rimington considered the second, third and fifth grounds to be arguable but stated that she was “far less impressed” by grounds one and four.
29. We heard helpful submissions from Mr Lewis and Mr Ojo on the grounds of appeal. We will not rehearse those submissions at this stage in our decision. We will instead refer to the submissions in our consideration of the grounds.
Analysis and Discussion
30. A great deal of judicial ink has been spilt in ETS test cases since the events we have described at [6]-[7] above. There is no need for us to attempt a comprehensive review of the various decisions from SM & Qadir (ETS-Evidence-Burden of Proof) [2016] UKUT 229 (IAC) to Chowdhury v SSHD [2025] EWCA Civ 36 but it is necessary to provide an outline of the position to date.
31. It is settled law that the burden lies on the Secretary of State to prove an allegation of deception, and that she must do so to the civil standard. There is a three stage process, which Green LJ (with whom Andrews and Lewison LJJ agreed) described in the following way in Ullah v SSHD [2024] EWCA Civ 201; [2024] 1 WLR 4055:
(i) the SSHD first must adduce prima facie evidence of deception (the first stage);
(ii) the appellant then has a burden of raising an innocent explanation which satisfies the minimum level of plausibility (the second stage); and
(iii) if that burden is discharged, the SSHD must establish on a balance of probabilities that this explanation is to be rejected (the third stage).
32. It was accepted in Shehzad & Chowdhury v SSHD [2016] EWCA Civ 615 that the “generic evidence” relied upon by the Secretary of State (consisting of the word “invalid” on a spreadsheet which also bore the details of the appellant and his TOEIC test) sufficed to discharge the initial evidential burden described above. When Majumder & Anor v SSHD [2016] EWCA Civ 1167 came before the court in October that year, Beatson LJ (with whom Sales and Black LJJ, as they then were, agreed) considered that issue to have been settled by Shehzad & Chowdhury v SSHD.
33. In MA (ETS - TOEIC testing) [2016] UKUT 450(IAC), the Upper Tribunal (McCloskey J and UTJ Rintoul) said that the “question of whether a person engaged in fraud in procuring a TOEIC English language proficiency qualification will invariably be intrinsically fact sensitive.” In 2017, in giving his judgment in R (Ahsan) v SSHD, Underhill LJ agreed. He said, at [33], that the decision as to whether an individual had cheated was fact-specific even where the evidence showed that the test was taken at a “fraud factory” or where the voice file did not record the applicant’s voice.
34. Since those early days in the ETS litigation, the range of evidence which has been presented and considered in such cases has widened considerably. The Secretary of State has relied on expert evidence from Professor Peter French, an expert on voice identification, who was instructed in 2016 to provide his opinion about the probability of error on the part of ETS in the event that they employed the process which was described to Mr Millington in June 2014. An intelligence analyst named Adam Sewell provided evidence in which he identified test centres in which the number of tests invalidated by ETS suggested there had been particularly high levels of cheating. There are “Project Façade” reports, as there was in this case, which provide data about the specific college at which the individual in question took their test.
35. Although ETS has never, to our knowledge, provided any reasons for deciding that an individual Speaking test result was “invalid”, it has for some years provided, on request, audio files which are said to be recordings of the Speaking test in question. In many cases, it is apparent that the voice on the audio file is not that of the applicant. That has led applicants to advance two types of submissions, which were summarised by Dingemans LJ at [11] of R (Mahmud) v UTIAC & SSHD [2021] EWCA Civ 1004:
Possible explanations for the fact that the "wrong" voice is recorded on the test include the fact that ETS have wrongly attributed someone else's test to the individual by mixing up the tapes, or because there were fraudsters running the test who decided to send in a fraudulent test rather than the actual test sat by the individual.
36. Those two theories have in recent years crystallised into two particular submissions which are often made in ETS cases. The first is often referred to as the “chain of custody” submission, which is that there is no evidence in the individual case to show that the recording which was supposedly analysed by ETS, and which might or might not have been provided to the individual applicant, is actually the recording of the test which was taken by the applicant (or their proxy). The second submission has come to be known as the “hidden rooms” submission, in which it is suggested that an applicant who thought that they had taken the test was for some reason hoodwinked by the unscrupulous college, who nevertheless employed a concealed proxy to take the test for them.
37. Those submissions caused both sides to adduce further expert evidence in the ETS litigation The Secretary of State relied on a 2016 report from Richard Heighway, a digital forensic analyst at Kroll Ontrack Legal Technologies, who concluded that it was unlikely (without a highly computer literate person being involved) that the TOEIC system would attribute a genuine test taker’s recording to a different candidate, or that a genuine test taker’s recording would be submitted by multiple candidates.
38. A number of applicants relied, in response to Mr Heighway’s report, on expert evidence from Professor Peter Sommer, who spoke to the likelihood or possibility of computer related fraud of which the individual applicant was unaware. In response to Professor French’s report, there was adduced by many applicants a report from Phillip Harrison, another specialist in voice identification. Expert evidence has also been provided (as it was in this case) by Christopher Stanbury, who concluded on the limited evidence available to him that there were a number of ways in which a candidate’s test might be manipulated by the college, with or without that person’s knowledge.
39. All of that evidence and more was considered, over the course of a five day hearing, by a senior constitution of the Upper Tribunal (Lane J and Mr Ockelton VP) in DK & RK (ETS: SSHD evidence; proof) [2022] UKUT 112 (IAC). The tribunal recorded its overall conclusion on that evidence at [4]:
We conclude that despite the general challenges made, both in judicial proceedings and elsewhere, there is no good reason to conclude that the evidence does not accurately identify those who cheated. It is amply sufficient to prove the matter on the balance of probabilities, which is the correct legal standard. Although each case falls to be determined on its own individual facts and evidence, the context for any such determination is that there were thousands of fraudsters and that the appellant has been identified as one of them by a process not shown to have been generally inaccurate.
40. In SSHD v Akter [2022] EWCA Civ 741; [2022] 1 WLR 3868, Macur LJ ( with whom Peter Jackson and Andrews LJJ agreed) made the following observations about the status of DK & RK:
I do not accept Mr Wilcox's initial submission that DK and RK (2) has no precedential authority in establishing that the 'generic' evidence relied upon by SSHD in the 'fraud factory' cases is sufficient to satisfy the evidential burden, because it is neither a 'starred' nor a Countries Guidance case. The cases arise from the same factual matrix, "such as the same relationship or the same event or series of events." (See AA (Somalia) and SSHD [2007] EWCA Civ 1040, [69]). The judgment in DK and RK (2) includes a comprehensive account of the evidence which the UT heard and its analysis of the same and upon which it based its decision. That is, the UT in DK and RK (2) demonstrably undertook the forensic examination and reached the definitive conclusions that were not open to Dove J upon the evidence before him in Alam. There would need to be good reason, which would inevitably mean substantial fresh evidence, for another UT to revisit and overturn the determination. This is not a situation, as Mr Wilcox suggested on behalf of HA, in which different Tribunals could reasonably reach different conclusions upon the same factual matrix.
41. Varkey & Joseph (ETS – Hidden rooms) India [2024] UKUT 142 (IAC) was a decision of Dove J and UTJ Mandalia which principally considered the likelihood of a person such as the appellant having fallen victim to an unscrupulous college which, unbeknownst to the candidate, had used a proxy to take the TOEIC Speaking test, or had otherwise substituted the voice of a proxy for that of the applicant. Whilst the Upper Tribunal accepted that there was evidence of “hidden rooms” in which such a fraud might have occurred, it concluded (amongst other things) that the test centres had generally adopted less sophisticated methods, by working in collusion with candidates.
42. Permission to appeal against that decision was refused by the Upper Tribunal and then by Dingemans LJ on 30 July 2024, who subsequently refused to re-open his decision after the Upper Tribunal’s decision had been reported under a neutral citation.
43. With that summary of the case law, and particularly the three most recent authorities in mind, we turn to consider Mr Lewis’s grounds of appeal in the order which we consider to be most logical.
Ground One – the appellant’s previous test
44. By this ground, Mr Lewis contends that more was required of the judge on the unusual facts of this case. He submits – and it has apparently been accepted throughout the appeal – that the appellant passed the first Speaking test which he took in 2012. He was only required to re-take the Speaking test because it was “paired” with the Writing test, which he had failed on the first occasion. Mr Lewis submits, with some justification, that this begged an obvious question: why would a comparatively impecunious person who had recently passed a Speaking test nevertheless choose to pay a proxy in order to take that very test for him?
45. The difficulty for the appellant is that the judge took careful account of this point at [76]-[77] of his thoroughly-reasoned decision. He was aware of the fact that the appellant had failed the Writing test in April 2012. With the deadline for a further application for leave to remain approaching, the judge considered that the appellant was under pressure of time and that the failure in the Writing test “must have affected his confidence to some extent”. The judge considered the result in the previous Speaking test to be important but not decisive. He weighed the point against another concern he had about the appellant’s evidence, which was that he had provided very little evidence about the June 2012 test at Colwell College in his witness statement.
46. We do not consider this ground to be made out. The judge took account of the point and weighed it in his consideration of the evidence as a whole. Whilst we may not have reached the same conclusion, such matters of weight are for the trial judge, who is immersed in the sea of evidence. The judge was rationally entitled to treat the April 2012 Speaking test result as important but not decisive and we consider that the reasons were adequate when judged by the principles summarised at [26]-[33] of AI v West Berkshire Council [2025] EWCA Civ 136.
Ground Four – evaluation of the appellant’s testimony
47. By this ground, Mr Lewis submits that the judge relied on “unreasonable expectations” about the appellant’s recall and memory. Wisely, in our judgment, Mr Lewis opted to say nothing in his oral submissions in amplification of this ground.
48. We accept that the judge attached some significance to deficiencies in the appellant’s account. He attached weight, in particular, to the lack of detail provided by the appellant in his statement about the test he sat at Colwell College. Again, we might not have come to that conclusion ourselves, but that is nothing to the point. It has been a feature of the ETS litigation for some years that those accused of fraud provide details of the test that they took and the events surrounding the test. The type of information which might be expected is clear from [48] of MA (Nigeria) and [94]-[95] and [99]-[100] of DK & RK. It was perfectly proper, in those circumstances, for the judge to be surprised about the lack of detail on those matters in the witness statement of an appellant who has been legally represented throughout.
49. Mr Lewis then makes reference to authority and academic commentary on the extent to which it might be proper to draw adverse inferences from a lack of detail in an account of historical events. He recalls what was said by Leggatt J (as he then was) at [16]-[17] of Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm). We will not set out all that was said there but we have taken into account the note of caution that memories are “fluid and malleable”. Alongside these dicta, Mr Lewis draws attention to the fact that there was medical evidence before the judge which stated that the appellant suffered from Bell’s Palsy and depression at the time of the hearing.
50. We do not consider the judge to have erred in his consideration of the appellant’s testimony. The FtT is a specialist tribunal which is accustomed to hearing and evaluating oral evidence. It is not required to set out various dicta relevant to that ordinary judicial task and we must assume that this specialist judge was aware of what has been said in the past about the fallibility of memory. We do not accept that he was required to direct himself separately and expressly on that issue. The judge was conscious of the fact that the appellant was accepted to be a vulnerable witness; he made that clear at the start of the hearing and in his decision. The letter from the appellant’s General Practitioner (it is not in the Upper Tribunal bundle but we were able to locate it on the FtT’s systems) did not suggest that the appellant had any difficulty with recall as a result of his depression. The academic commentary about human memory to which Mr Lewis makes reference at [23] of his grounds was not before the judge, and he cannot be criticised for not taking it into account. This was not a case, therefore, in which the medical or other evidence provided any proper basis for the judge to conclude that the deficiencies in the appellant’s evidence were attributable to his illness rather than being a legitimate indicator of untruthfulness.
Ground Five – absence of evidence from ETS
51. By this ground, Mr Lewis notes that the appellant’s solicitors had put a series of question to ETS’s Solicitors, and that there had been no response. We accept that questions were put to ETS in August 2022. There were thirteen such questions, relating to chain of custody, data retention and other more specific matters. There was no response to those specific questions. A further twenty one such questions were put to ETS’s solicitors on 11 October 20242. The response from Mr Coffey, the partner at Jones Day, was:
As we have provided you with the information to which our instructions relate and ETS Global is not a party to your client’s litigation, neither we nor our client can be of any further assistance in this matter.
52. Mr Lewis submits that this placed the appellant in an invidious position in defending himself against the evidence provided by the Home Office, and that the judge made no reference to that situation in his lengthy decision.
53. We consider Mr Lewis to be correct in his submission that the appellant was in a difficult position in light of the conclusions reached in DK & RK and Varkey & Joseph. Those authorities had found that the word “invalid” on the spreadsheet which bore his name and the reference number of his TOEIC test was sufficient not only to discharge the initial evidential burden on the respondent; it was “amply sufficient”, when considered in context, to prove the allegation on the balance of probabilities in the absence of a coherent rebuttal from the appellant. The Home Office was not able to provide any further evidence; all it had was the word on the spreadsheet, so the appellant sought further information from the source, but to no avail. That meant, in turn, that the appellant was unable to ask Mr Stanbury, who had already provided a report in his case, to comment on any chain of custody or hidden rooms issues which might have emerged from a detailed response from ETS.
54. In Varkey & Joseph, at [57], parallels were drawn with the predicament of the sub-postmasters in the Horizon litigation, who were said to bear the burden of showing that there was something wrong with that system. That caused Fraser J to observe, at [4] of Bates v Post Office Ltd [2018] EWHC 2698 (QB), that it “might prove to be a modern version of probatio diabolica”.
55. Despite Mr Lewis’s able submissions, however, we are unable to conclude that the judge erred in failing to consider the absence of evidence from ETS. Our reason for coming to that conclusion may be stated quite shortly: we cannot see how it could have affected the assessment which the judge was required to undertake.
56. It has been held consistently, since the start of the ETS litigation, that the evidence on which the Home Office typically relies is sufficient (or, since DK & RK, amply sufficient) to discharge the initial evidential burden. The applicant is able, in response to that evidence, to adduce whatever evidence he can obtain. His inability to obtain further evidence from ETS could not logically mean that the Home Office had failed to discharge the evidential burden. Nor, logically, could it assist him in attempting to rebut that evidence. He and his solicitors had done what they could but the evidence was not forthcoming. He was therefore required to rely on his own evidence and the original report which Mr Stanbury had written in October 2023, which significantly pre-dated Varkey & Joseph.
57. Mr Lewis advanced ground five as an irrationality challenge but it was not irrational for the judge to reach the conclusions he did in the absence of a response from ETS. His conclusion followed a conventional and demonstrably thorough examination of all of the evidence before him; that exercise could not logically have been altered by consideration of the evidence which was not before him. Mr Lewis also submitted at [29] of his grounds of appeal that the absence of evidence from ETS might have justified the judge drawing an inference from the company’s silence. In circumstances in which the overall processes have been examined in detail by the Upper Tribunal, the High Court and the Court of Appeal, we cannot accept that it would have been proper for the judge to draw an inference from the silence of a body which was not a party to the litigation.
58. In summary, we do not consider grounds one, four and five to disclose any legal error on the part of the judge.
Ground Two – misdirection of law in relation to the status of Varkey & Joseph
59. By this ground, Mr Lewis submits that the judge was in error in the approach he took to the invitation to depart from the conclusions in Varkey & Joseph. In order to evaluate this submission, it is necessary to consider the way in which the judge resolved the argument at [37]-[43] of his decision.
60. At [35]-[36], the judge attached significance to the Practice Direction of the Immigration and Asylum Chamber of the First-tier Tribunal dated November 2024. He reproduced the relevant section, and we should do so too:
All reported decision of the Upper Tribunal, the AIT, and the IAT should be treated as authoritative statements of principle unless set aside or inconsistent with other authority that is binding on the Tribunal.
61. At [37], the judge made reference to [29] of SSHD v Akter, which we have set out above. At [38], the judge said that Akter did not “support the appellant’s contention that the First-tier Tribunal can depart from the conclusions reached by the Upper Tribunal by reaching different conclusions on the same factual matrix as was argued in this appeal.”
62. The judge then turned to Mr Lewis’s argument that the proper approach was to be found in the line of authority which began with Devaseelan [2003] Imm AR 1, since this case was one in which there was a ‘material overlap of evidence’ (Ocampo v SSHD [2006] EWCA Civ 1276 refers, at paragraph 25). The judge reproduced some of what was said by Rose LJ (with whom Baker and Floyd LJ agreed) in SSHD v BK (Afghanistan) [2019] EWCA Civ 1358; [2019] 4 WLR 111. The judge also made reference to Djebbar v SSHD [2004] EWCA Civ 804; [2004] Imm AR 497, noting that re-litigation of issues which have already been resolved is contrary to the public interest.
63. At [42], the judge noted that there was no report from Mr Stanbury which post-dated Varkey & Joseph but that Mr Lewis sought in his supplementary skeleton argument to “undermine the Upper Tribunal’s conclusions by reference to pure public law arguments attacking the rationality of the reasoning”. At [43], the judge resolved that argument as follows:
In my view then the authorities of BK and Akter (as two examples) do not assist the Appellant. I also add that there is nothing in these judgments which permits the First-tier Tribunal to step into the shoes of the Court of Appeal and assess the lawfulness of the decision in Varkey & Joseph. I also find that it is not clear on what statutory basis the Appellant contends that the First-tier Tribunal could carry out such an assessment. Additionally, the Appellant’s reliance upon the facts in BK does not assist because there was further evidence in the second appeal in that case to cast doubt over what had been recorded as being said in the first. The Court in BK concluded that the judge deciding the second appeal had not acted unlawfully in departing from the previous findings under those circumstances.
64. On this question of principle, we consider that the judge fell into error and that the submissions made by Mr Lewis before the First-tier Tribunal and before us were correct.
65. The judge was not bound by factual findings reached in Varkey & Joseph as a matter of precedent; the UT’s rulings on points of law are binding on the FtT3 but the effect of factual findings, even those in guidance cases such as DK & RK or Varkey & Joseph, is different. The Practice Direction’s reference to ‘statements of principle’, cannot in our judgment be taken to include findings of fact made by the Upper Tribunal.
66. The judge was correct to cite SSHD v Akter, the relevant section of which we have already reproduced above, but we consider that he misunderstood what was said by Macur LJ about the need for good reason to depart from the UT’s conclusions “which would inevitably mean substantial fresh evidence”. If the judge treated that as the only basis on which he could depart from the conclusions reached in Varkey & Joseph, he fell into error.
67. As Mr Lewis submitted, SSHD v BK (Afghanistan) shows that there is a further way in which a tribunal may depart from the conclusions reached by a previous tribunal which has considered the same factual matrix. The second tribunal may do so where there is shown to be a material error in the decision of the first. In BK, the error was that there was a finding in the first decision (that BK had tortured and killed people) which was unsupported by the evidence. The Court of Appeal held that the error entitled the second tribunal to depart from the starting point provided by the first decision and to make its own assessment of the evidence, and rejected the Secretary of State’s ground of appeal in that respect: [27](i) and [50] refer.
68. The judge was troubled about the statutory basis upon which he could ‘assess the lawfulness’ of the decision in Varkey & Joseph. Mr Ojo suggested to us that the judge had no jurisdiction to do so. As we observed, however, the judge was not being asked to set aside the decision in Varkey & Joseph because it contained errors of law. That appeal was not before him, and his was not the task presented to the Court of Appeal by s14 of the Tribunal, Courts and Enforcement Act 2007. Instead, the judge’s task was to determine the appellant’s appeal against the refusal of his human rights claim. That task obliged him to make the findings which he conscientiously believed to be right (Djebbar v SSHD, at [40] refers) and the Devaseelan line of authority did not oblige him to determine the appeal in accordance with the factual findings made in Varkey & Joseph (or DK & RK) in the event that it could be shown that those findings were erroneous. We note that Rose LJ endorsed the concession made by leading counsel in that regard at [43] of BK:
“[Leading counsel for the SSHD] accepted that as a matter of practice, the tribunal must address its mind to the reasons put forward by the party which is seeking to depart from the previous findings as to why that finding is unreliable so that it should in effect be carried forward into the determination of the appeal now before it. That must be right…” [emphasis supplied]
69. The judge proceeded on the basis that BK (Afghanistan) did not provide support for Mr Lewis’s submission because it was, in truth, a case in which there was further evidence in the second appeal which entitled the judge to depart from the findings in the first. We also accept Mr Lewis’s criticism of that aspect of the judge’s analysis; BK was not really a case in which there was substantial fresh evidence. The principal piece of evidence which entitled the second judge to go behind the findings of the first was the notes which the Presenting Officer had made of the hearing in 2004: [17] and [18] of Rose LJ’s judgment refer. Such evidence of what happened at trial is never aptly described as ‘fresh evidence’ and it is not subject to the Ladd v Marshal [1954] 1 WLR 1489 tests for admission on appeal.
70. Ultimately, therefore, we accept Mr Lewis’s submission that SSHD v BK (Afghanistan) is authority for the proposition that a second judge is entitled to depart from the factual findings of the first where it can be shown that those findings were unreliable and should not be carried forward into the decision on the later appeal. In concluding otherwise, we consider the judge to have fallen into error.
71. In order to establish that the judge’s error was material, however, Mr Lewis must also establish that he had a proper basis for contending that the decision in Varkey & Joseph is unreliable. It is that argument which forms the basis of ground three.
Ground Three – the appellant’s criticisms of Varkey & Joseph
72. By this ground, Mr Lewis submits that he advanced a number of detailed criticisms of the decision in Varkey & Joseph before the FtT, and that the judge failed to deal with the substance of those criticisms. Those criticisms were to be found at [9]-[15] of the supplementary skeleton argument to which we have already referred. At [17] of his grounds of appeal, Mr Lewis submitted that the judge had only dealt with the criticisms “lightly”.
73. What the judge said about those criticisms was as follows:
[56] However, for completeness, I conclude that there is no merit in this argument either. The Upper Tribunal expressly noted Mr Stanbury’s own acceptance that, in respect of his elaboration of the different types of fraud which could have been deployed, much was speculation: §96. It is also plain that Mr Stanbury explored some hypothetical scenarios which he himself considered were so unlikely that although technically feasible should be reserved for a movie plot rather than real life (see §103) and misunderstood the nature of the deception argument at the heart of the appeals: see §106.
[57] In my judgment the Upper Tribunal’s conclusion at §131, when read in the round with the other detailed findings made by the panel, simply reflects the lack of utility in a number of suggested types of fraud because there was no underpinning evidence to support those speculations. The fact that ETS did not respond to Mr Stanbury’s questions simply explains why parts of Mr Stanbury’s report veered into speculation. This does not change the fact that the Upper Tribunal considered that this speculation in some respects was not helpful.
74. We consider the judge to have given largely adequate reasons for refusing to accept Mr Lewis’s submission that the findings in Varkey & Joseph were “fundamentally flawed”. He was evidently aware of the substance of the appellant’s complaints but he was not prepared to accept that a senior panel of the Upper Tribunal, presided over by its President, had erred in law in the evaluation of the detailed evidence before it.
75. The judge agreed with the panel that the conclusions of Mr Stanbury were speculative. That word was not used pejoratively; it merely reflected the fact that there was no solid base of evidence to show that “parallel testing” in hidden rooms had taken place on anything like the scale suggested. Given what was recorded in the Panorama programme, and given the vast number of candidates who had been found by ETS to have cheated, it was inherently more likely that the preferred method of cheating was the simplest, of the proxy taking the test in the seat assigned for the candidate.
76. We have said in the preceding paragraph that the judge gave “largely adequate reasons”. We expressed our conclusion in that way because the judge did fail to deal expressly with the criticism Mr Lewis levelled at [12] of his supplementary skeleton argument, which was that the UT’s decision in Varkey & Joseph effectively reversed the burden of proof. But there was nothing in that point.
77. The experienced panel of the Upper Tribunal was well aware of the law, and it was well aware of the analysis previously undertaken by a senior panel in DK & RK. The approach adopted by the Varkey & Joseph panel built on that adopted in the earlier decision, and required an appellant such as this to answer what was said to be “amply sufficient” evidence of fraud. That approach is not, in substance, one in which the burden of proof is reversed; it is a conventional application of the test from Ullah v SSHD, as set out at the start of this decision. Had the contrary been arguable, we have no doubt that the appellants in Varkey & Joseph would have secured permission to appeal on that ground.
Conclusion
78. In the circumstances, we have concluded that the appellant’s grounds of appeal are not made out. Whilst the judge erred in the manner contended in ground two, that error was not material to the outcome of the appeal. The remaining grounds do not demonstrate errors of law on the part of the judge. The appeal to the Upper Tribunal is accordingly dismissed, and the decision of the First-tier Tribunal shall stand.
Notice of Decision
The appellant’s appeal is dismissed.

Mark Blundell

Judge of the Upper Tribunal
Immigration and Asylum Chamber

9 September 2025