Case No. UKUT-00450(IAC)

containing 48 work stations. The seat linked to the Appellant in the seating plan does not tally with what is contained in a related attendance list. These materials also include the two-page document purportedly completed by the candidate in providing the answers to the listening and reading questions. The second page purports to bear the candidate’s signature and the date of testing. The Appellant asserts that the hand writing in which his signature appears is not his. (34) The Appellant testified that upon arrival at Queensway College, he signed a roster of sorts at reception. While his signature appears on an attendance list containing particulars of his forename, surname and identification number, coupled with an allocated seat number, he “did not think” that this is what he signed. He confirmed that the identification number corresponded with his passport number. He suggested that the signature was not in his handwriting. He could not remember anything of the invigilator’s conduct. He confirmed that the test documents which he claims to have completed and signed were comparable to the two pages containing the signature which he disowns. When asked why Queensway College is not mentioned in either of his two written statements, the Appellant was unable to explain.(35) We turn next to the discrete issue of photographs. The ETS test centre manuals make clear that every candidate should be photographed on every occasion of testing and that the photographs should be taken and stored in a specified manner. Neither ETS nor the Secretary of State has produced any photograph of the Appellant pertaining to the first limb of the test which he claims to have undertaken at Queensway College on 28 February 2013. Nor does the Appellant’s photograph appear in the box specially designated for this purpose in the corresponding TOEIC certificate. (36) The Appellant’s photograph does, however, appear in the TOEIC certificate corresponding to the second (speaking and writing) limb of the test, dated 20 March 2013. Furthermore, precisely the same photograph was provided by ETS’s solicitors during the pre-hearing phase in response to requests for specified information and documents. The solicitors stated: “It is standard practice, and a requirement, for all test takers to be photographed at the test centre on the day of the test. A copy of the photograph in respect of [the Appellant] is set out below. This was a task undertaken by the test centre not ETS Global although the information in its records shows that the photograph was taken at 11.17.17 on 20 March 2013 and uploaded at 11.21.01 on the same day.”The centre where TOEIC tests were taken on this date is Cauldon College. ETS’s solicitors further assert that the test began at 10.10 hours and there were 37 candidates. On the basis that timings noted are correct, which was not a contentious issue, the photograph was taken 67 minutes later.(37) The Appellant testified that after completing the speaking and writing tests at Cauldon College, the candidates queued to have their photographs taken. They lined up in groups of eight in a gap in the middle of the room. Strikingly, he described no mechanism for separating and identifying the individuals in this communal fashion. The experts gave evidence that this description does not correspond remotely with the photographing procedure specified in the ETS manuals.(38) Having canvassed with Counsel the specific issue of the evidence bearing on the Appellant’s photographs, on the final day of the hearing, the Tribunal gave permission for the adduction of further evidence on his behalf. The evidence initially included a single copy of the Appellant’s passport photograph. The Tribunal was anxious to explore the origins of and context surrounding this discrete evidence. The further witness statement (with attachments) of the Appellant duly addressed this issue. This evidence was uncontentious and, having considered it, we are impelled to the view that nothing of substance turns on the discrete issue of photographs(39) The next significant evidence to be considered concerns the record of events at Heathrow Airport on 14 October 2014. These events, it will be recalled, precipitated the decision of the Secretary of State giving rise to this appeal. (40) First, there is the landing card completed by the Appellant. This also contains notes made by a Border Force official. These document the Appellant stating that he had undergone an English language proficiency test for the purpose of securing an Entrepreneur visa. The record continues: “[He] had to ring home to get details of his test date and place …. [and] …. provided name of the test centre as Claudon College in 3/2013. ” It is convenient to interpose here the Appellant’s evidence to the Tribunal concerning this issue. The Appellant testified that his driver was waiting to collect him at Heathrow Airport. He telephoned the driver for the purpose of ascertaining where he had taken the test (singular). The driver was unable to provide him with this information, but stated that he would have to park the car and would then call the Appellant. According to the Appellant, he then remembered the text that had been sent to him by his friend Ahmed. He produced this text to the Tribunal. It is dated 19 March 2013 and timed 14.26 hours. Its contents consist of the name Cauldon College and its address, including the postcode. The Appellant did not provide any satisfactory explanation of why, on 19 March 2013, he needed this information having regard to his claim that he had been to Cauldon College and had spent some time there just three weeks previously.(41) The second document generated by events at Heathrow Airport on 14 October 2014 is the record of the Appellant’s interview. According to this he confirmed that he was “fit and well and happy to be interviewed”. The interview had a recorded duration of 10 minutes. When asked about his English language proficiency test, the Appellant is recorded as having replied: “I think March 2013 … in Ilford, Cauldon College.”The next question and answer were: “Which English language test did you sit? …… [Answer] I can’t remember.”The Appellant’s evidence to the Tribunal was that this question was not clear and he did not understand it. This question was followed by: “What did the test consist of? …… [Answer] Writing, listening and speaking. ” The Appellant was asked in cross examination why he had not mentioned reading. He replied “I don’t know”. Next, he was unable to state the amount he had paid in order to undertake the test. We contrast this with the fact that that in his first written statement, made four months later, he stated “I believe I paid approximately £200 for the test”.(42) The ensuing question and answer were:“How many people were there when you sat the English test? …. [Answer] Full, in my room there were around 20 people. ” At the hearing the Appellant was asked to indicate which of the two test centres to which this answer applied: he replied “I can’t remember”. As the interview progressed, he asserted that the test (notably, singular) lasted roughly one hour and was undertaken at a computer terminal, after he had provided his passport. He added “They took our photo”. His answers made no mention of Queensway College and contained no suggestion of two separate testing exercises. The Main Factual Issues: Findings And Conclusions(43) We are conscious that the only TOEIC invalidated is the second one and, further, that the impugned decision of the Secretary of State is founded on the speaking element of the second certificate. However, given the run of the hearing we consider that the main factual issue to be determined by the Tribunal in this appeal is whether the Appellant underwent the four English language proficiency tests on the separate dates and occasions to which the two TOEIC certificates relate. We deduce from the submissions of both parties’ counsel that there is no disagreement about this approach. The discrete factual issues upon which we have focused above are those which emerged as the most important during the hearing and received most attention. All of them have a bearing, directly or indirectly, on the central issue.(44) We remind ourselves of the correct approach to the issue of burden of proof and, in particular, the “burden of proof boomerang” discussed in Muhandiramge (Section S-LTR.1.7) [2015] UKUT 00675 (IAC), at [9] – [11]. In SM and Qadir this Tribunal, at [91], described the Secretary of State’s case against both Appellants as “non-specific and generalised”. This contrasts with the present appeal in which the production of a markedly greater volume of evidence, both general and specific, has contributed significantly to the presentation of a more focused and considerably more substantial case against the Appellant. At the general level, there is, inter alia, clear prima facie evidence of TOEIC corruption at the two test centres where the Appellant claims to have been examined. At the specific level, one has in particular the TOEIC certificates and the documentary records linked to the Appellant in respect of the date and place where he claims to have undergone the second part of the test, namely 20 March 2013 at Cauldon College. The specific evidence also includes the records of the events at Heathrow Airport on 14 October 2014. (45) In SM and Qadir, the following was stated by this Tribunal, at [102]:“We take this opportunity to re-emphasise that every case belonging to the ETS/TOEIC stable will invariably be fact sensitive. To this we add that every appeal will be determined on the basis of the evidence adduced by the parties.”This is echoed in the statement of Beatson LJ in Secretary of State for the Home Department v Shehzad and Chowdhury [2016] EWCA Civ 615, at [23]: “I do not address the question of what evidence will be sufficient to enable a Tribunal to conclude that there has been no deception. That is likely to be an intensely fact-specific matter.”We draw attention to two further statements in SM and Qadir. First, the tentative prediction in [103]:“We take note of the indications in the conduct of these appeals that, in some future case, the Secretary of State may seek to adduce further evidence, likely to be expert in nature.”This type of “entirely new ingredient” has materialised in these three conjoined cases, in the shape of three experts’ reports. Finally, this Tribunal stated at [80]:“In some of the FtT decisions in this field one finds observations concerning the appellant’s apparent fluency in, and command of, the English language. We consider that Judges should be cautious in adopting this approach for at least three reasons. The first is the passage of time. The second is that Judges are not language testing or linguistics experts. The third is that, to date, there has been no expert linguistic evidence in any of these cases.”(46) We have considered what Beatson LJ said regarding the issue of burden of proof in Shehzad and Chowdhury, at [30]. “….. In circumstances where the generic evidence is not accompanied by evidence showing that the individual under considerations test was categorised as ‘invalid’, I consider that the Secretary of State faces a difficulty in respect of the evidential burden at the initial stage.”We observe that this evidential frailty does not arise in the present case. In this context, we have given consideration to one particular issue. While we infer that the action taken against the Appellant by Border Force officials at Heathrow Airport must have been based on some information capable of being reproduced in documentary form and/or detailed in a witness statement, there is no such evidence before us. Thus there is a gap in the Secretary of State’s case in this respect. This discrete issue did not form part of the Appellant’s case and, while mindful that this is not determinative, we consider that the effect of this lacuna is neutral in the context of the present appeal. (47) We must also balance the expert evidence, summarised in [11] – [18] above. This evidence highlights that there are enduring unanswered questions and uncertainties relating in particular to systems, processes and procedures concerning the TOEIC testing, the subsequent allocation of scores and the later conduct and activities of ETS. While we bear this evidence in mind, ultimately it was largely remote from the centre of the Appellant’s case. (48) We have identified in [20] – [42] above those factual issues which, as the hearing progressed, emerged as the most significant. Our exposition of them has been interspersed with certain comments and asides, which we do not repeat. We make the following discrete findings, some of which are self-explanatory: (i) There are significant gaps in the Appellant’s witness statements and, related to this, notable discrepancies between these statements and his evidence to the Tribunal. This is what prompted the Tribunal’s exploration of the circumstances in which the statements were compiled. The Appellant has failed to provide any satisfactory explanation of the gaps and discrepancies.(ii) The Appellant’s abject failure to provide even the most basic description of the car journey which he claims to have undertaken from Cauldon College to Queensway College or any physical feature of the latter college or its surroundings significantly undermines his account of events on 28 February 2013, the date of his first TOEIC certificate. There is no documentary evidence supporting the Appellant’s account of events, even obliquely and no evidence was adduced from two potentially supporting witnesses, namely the Appellant’s chauffeur and the (unidentified) solicitor who, he claims, made the test arrangements for him. We find his vague and hesitant account of events on this date wholly implausible. We conclude that this evidence was fabricated in its entirety.(iii) The Appellant sought to distance himself from the contemporaneous records apparently relating to test taking at Queensway College on 28 February 2013. We find, on balance, that these records were generated on the date and occasion specified. The Appellant gave a description of his seat which does not accord with either of the records. He asserted that the signatures purporting to be his in the attendance sheet and on the second page of the reading and listening test itself were not made by him and do not reflect his handwriting. We accept his claim in this respect. We consider that he was driven to acknowledge this on the ground that these signatures could not withstand comparison with his signature on other documents, for example his two witness statements. However, these are the only documents relating to the Appellant, Queensway College and the date in question. There was no suggestion from any quarter that other comparable documents containing his true signature must exist but have not, for some unexplained reason, been disclosed by either ETS or the Secretary of State. The explanation for all of this, we readily find, is that the Appellant did not attend Queensway College on the date claimed and did not undertake either of the tests in question. It follows from this that what is represented in the first of the TOEIC certificates is wholly false. (iv) While we take into account Mr De Mello’s submission that the Secretary of State’s deception case against the Appellant relates to the second, and not the first, test, this does not preclude us from, firstly, considering the evidence relating to the first test, particularly as it bears directly on the Appellant’s credit generally and, secondly, making appropriate findings of fact. Taking into account also the other unsatisfactory and unpersuasive aspects of the Appellant’s evidence, we find specifically that the TOEIC certificate dated 28 February 2013 is not the product of any test undertaken on that date on this date and occasion or at all. (v) This finding is reinforced by the absence of a photograph on the first of the two TOEIC certificates. It is further reinforced by, inter alia, (a) the Appellant’s consistent description in his witness statements of having attended one test centre only, namely Cauldon College, (b) his consistent description of a single test occasion when interviewed at Heathrow Airport, (c) his failure to mention Queensway College in the span of two witness statements and (d) his mentioning of Queensway College for the first time when he gave evidence to the Tribunal. Under questioning, he was unable to account for his failure to do so in any of the earlier contexts detailed.(vi) There are self-evident gaps and discrepancies in the account which the Appellant gave to Border Force officers at Heathrow Airport (see [39] above). We bear in mind the Appellant’s explanation to the Tribunal for these shortcomings, which was that he found himself in a situation of detention without advance warning and was feeling stressed. However, we must balance this with the following facts and factors: the Appellant did not make this claim in either of this witness statements; in his main witness statement he claimed that he “told them everything”; he was able to communicate by phone with his chauffeur and the immigration attaché of the Nigerian High Commissioner in London; and he signified at the outset of the interview that he was “fit and well and happy to be interviewed”. (vii) We are prepared to accept that the Appellant found himself in a stressful situation at the airport. On the other hand, in addition to the matters highlighted immediately above, there was every incentive and opportunity for this intelligent and experienced business man, in a context where there was no language barrier, to make fully and candidly his case in respect of the two TOEIC certificates, both reactively and proactively. He manifestly failed to do so and his claim that he “told them everything” is demonstrably unsustainable. We do not accept the Appellant’s explanation for the gaps and discrepancies identifiable in the Heathrow records. We consider that these count against his credibility.(viii) We have considered with particular care the Appellant’s account of events at Cauldon College on the second of the two material dates, 20 March 2013. We acknowledge that his photograph appears on the TOEIC certificate linked to this occasion and, further, that this photograph tallies precisely with that produced via third party disclosure by ETS. It is common case that these two photographic representations depict the Appellant. We find that this photograph was created at Cauldon College on 20 March 2013. (ix) On the balance of probabilities, the Appellant, therefore, attended Cauldon College on the date to which the second TOEIC certificate relates. While there are apparently contemporaneous records of events at Queensway College dated 28 February 2013, there are no corresponding records relating to Cauldon College on 20 March 2013. This is unexplained from all quarters. We consider that there is no consequential inference adverse or positive to either party which can reliably be made.(x) In this context we refer also to the “CD properties screen shots” said to relate to the CD containing the Appellant’s voice. These appear to have emanated from the Secretary of State via pre-hearing disclosure. The references to the “documents” are a clear indication that these documents were generated in the course of and for the purpose of these appeal proceedings. We note that they contain the Appellant’s registration number and his surname. We have also considered the dates that are visible. The most significant feature of this evidence is that it is not self-explanatory (quite the opposite) and is unexplained and unilluminated, particularly in the absence of a suitable witness statement. We conclude that this evidence does not advance the Secretary of State’s case. (49) While the evidential foundation of our main finding of fact that neither of the TOEIC certificates is the product of tests undertaken by the Appellant is already substantial, still further reinforcement is found in other parts of the evidence. First, there is the unchallenged evidence on behalf of the Secretary of State arising out of analysis of all candidates’ scores related to the listening and reading tests undertaken at Queensway College on 28 February 2013. The majority of the results lie within a very narrow band, with a score range in the middle of the B2 level. The report of the Intelligence Analyst concerned states: “This pattern is not consistent with genuine candidates at other SELT providers. This patterns is consistent with other ETS TOEIC test centres where results were manipulated and reported incorrectly by test centre staff …..”The author characterises the scoring patterns as “abnormal and statistically improbable”, contrasting them with the scoring patterns of test centres not belonging to the suspect category. The same assessment is made in respect of the scoring patterns in speaking and writing tests at Cauldon College. It is also noteworthy that the Appellant’s TOEIC certificates belong to what may be described as the peak period of cheating and manipulation in the ETS/TOEIC saga.(50) In contrast with other cases there is cogent evidence in this appeal explaining the “lookup tool”. The evidence is that this consists of an Excel spreadsheet which has the capacity to search a list of thousands of test certificates provided by ETS with a view to connecting the certificates with persons who have made applications for leave to enter and remain. This mechanism was wholly developed within the Home Office. The data used for this purpose are the name, date of birth and nationality of the person identified in the TOEIC certificate, combined with the certificate number and the person’s passport reference number or Home Office unique number. (51) In this Appellant’s case, the use of this tool generated an Excel spreadsheet, included in the evidence, in familiar form relating to the second of the TOEIC certificates. This contains the ETS assessment of the scores recorded as “invalid”. While we take into account the questions and doubts expressed by the experts these focus more on the ETS and test centre methodologies than the ETS mechanisms and processes for the analysis of the computerised files holding suspect speaking tests. We record further that there was no frontal challenge to this particular piece of evidence. The “invalid” assessment is also supported by our findings above. Overall we are satisfied that we should treat the “invalid” assessment as reliable. (52) The arguments of Mr De Mello and Ms Rothwell, inter alia, focussed on a letter from ETS responding to a request for information by the Appellant’s solicitors. The context and import of this letter are illuminated by the evidence that there were 37 candidates purportedly taking the speaking and writing tests at Cauldon College on 20 March 2013. The outcome of the ETS assessment was that none of the scores contained in the related TOEIC certificates was considered free of suspicion. The Appellant was one of 31 candidates whose scores were assessed as “invalid”. The assessment of the remaining six candidates’ scores was “questionable”.(53) The aforementioned letter from ETS, unsurprisingly, deals only with the Appellant’s case and the cancellation of his scores. It is clear that this does not extend to phase one of the tests, namely the earlier listening and reading modules. Nor, in our judgment, was it designed or intended to do so. We discern no inconsistency between the ETS letter and the detailed report of the Home Office employee on which the evidence summarised in [48] above is based. We note further the evidence, which we accept, that the specific reason for the “invalid” assessment in this Appellant’s case was that analysis of a batch of 280 speaking tests from Cauldon College spanning the period 27 February to 30 March 2013 revealed that the voice purporting to be that of the Appellant was the same as the voice analysed in at least one other component of the batch. It is convenient to recall, in this context, that the voice recorded in the speaking and listening tests attributed to him is not his. (54) At this juncture we switch our focus to the Appellant’s evidence to the Tribunal. We heard and observed the Appellant studiously during some 2 ½ hours. We scrutinised in particular response times, hesitation, spontaneity and engagement with the Tribunal generally. We found the Appellant surprisingly hesitant. If he had truly undertaken the tests we would have expected him to have been much more assured and assertive in his evidence. These qualities were, however, strikingly lacking. We would also have expected greater spontaneity in his evidence. In particular, we consider that, if genuine, he would have been anxious to disclose, spontaneously or otherwise, matters of detail relating to the two days and occasions under scrutiny with a view to demonstrating his innocence of the charge of deception. This too was strikingly absent from his evidence. Furthermore, on occasions, the simplest of questions had to be repeated, sometimes more than once, a paradigm illustration being the quintessentially simple, but crucial, question: to where did he travel from Cauldon College on the first occasion, 28 February 2013? The Appellant dealt with this repeated question in a wholly unsatisfactory way. (55) These features of the Appellant’s demeanour, presentation and the delivery of his evidence generally must be considered within their contextual framework and, in particular, the background that the Appellant, prior to giving evidence to the Tribunal, had enjoyed ample time for reflection, recollection and preparation. We recognise that a party or witness whose evidence partakes of these characteristics is not, ipso facto and inexorably, unworthy of belief. However, context is everything and we consider that in this particular appeal these factors, coupled with the findings and considerations highlighted above, impel ineluctably to the conclusion that the Appellant’s case is a fabrication in all material respects. Finally, we have already highlighted above, and do not repeat, his unconvincing and implausible explanations of material discrepancies and inconsistencies canvassed with him in questioning.