Case No. UKUT-00450(IAC)

date or dates, when this rather important change was implemented.)The manuals contemplate that each candidate will be photographed by an iPhone and/or that there will be photo registration by the Centre Administrator’s personal computer. The information provided by ETS’ solicitors is that ETS has been unable to locate any photographic records, cannot confirm whether the aforementioned procedure was in operation in April 2012 and simply does not know the provenance of the photograph of the Appellant MA (the only member of this group of three litigants in respect of whom a photograph has been produced).According to ETS, the system was that each candidate was required to register on a computer relevant personal details, including a passport number, which automatically generated a computerised unique Registration Number.The “CBT Manager application” was the computer software used to record each candidate’s spoken and written responses. The computerised files thereby created were then transmitted to the “Online Scoring Network” at ETS’ US Headquarters.There is a distinct lack of clarity relating to the process as described by ETS in (ix) above. The description of uploading of the data following completion of the test is not consistent: in particular, the description provided in respect of the Applicant Mr Mohibullah has not been put forward in either of the other two cases.The integrity of the test taking procedures and systems established by ETS in its manuals depends heavily on the reliability and probity of test centre staff. Further, the ETS security precautions concentration on the elicit conduct of candidates and not test centre employees.With the sole exception of audio files, all of the computer files produced have been in the form of “print-out to PDF”: the effect of this “… has been not to preserve any original date – and – time stamps or internal metadata either or both of which would have assisted analysis using digital forensic analysis and helped produce a chronology of events”.The test centre seating plans which have been produced are incomplete.A study of the spreadsheets attached to the witness statements of the Home Office employee, Mr Sewell reveals a lack of any nexus between the data supplied to him by ETS and the unique ID of individual candidates. As a result, the experts say “We do not know the processes by which the candidate’s name is linked to each test”.The experts acknowledge the documentary evidence of “simple impersonation”, with particular reference to the unannounced ETS audit at Synergy College on 16 January 2013. They express the opinion that the simple impersonation mechanism would be “vulnerable” in any speaking tests.While there is also some evidence of “dictated answers”, “viz” answers to test questions being called out by a person in the examination room, this method would not be viable or the spoken English test.The investigation of a particular test centre in Birmingham established the use of the “remote control software” mechanism by the use of “Team Viewer” software whereby a person using another computer could secure access to the computer being used by the candidate. The possibility of other, covert, remote control mechanisms is acknowledged. There is no evidence of the use of any of these mechanisms in the test centres which relate to these Applicants or the Appellant MA.The experts also advert to the possibility of manipulation of file responses held on the local server, the CBT Manager, at the testing centre. If file responses were stored on this server, this would create an opportunity for alteration by test centre staff. Two of the experts opined that this was unlikely.Yet another mechanism, entailing a simultaneous testing session using proxies in a “hidden room” at the test centre or elsewhere is acknowledged.According to the experts, “particular opportunities for mistakes appear to arise if the actual registration on the ETS system is sometimes carried out by test centre staff and not by the candidates themselves”, creating the risk of the data provided by the test centre to ETS mis-matching the candidates and their tests. There was no security precaution available to counter this risk, with the exception of an unannounced ETS audit.As none of the computers or data media associated with the test centres involved in these cases is available, there is no information relating to the important issues of audit, log and configuration files and related time and date stamps. This is one aspect giving rise to the recurring lament of the experts: “We have been limited by the quantity and quality of material actually available to us.”The “naming conventions” for the digital files of the voice recordings produced do not provide an explicit link between the candidate and the recording: rather, there is only reference to the particular test being taken. Contrary to a suggestion emanating from ETS via their solicitors, the file name does not include the candidate’s “unique registration code”. Thus:“… What this naming system does is to provide linkage between a registered candidate and the responses and recording but assumes that the unique registration code is reliably linked to the real candidate. As we have already pointed out, in the two spreadsheets exhibited by Adam Sewell there are no columns uniquely to identify candidates by reference to the ID they originally tendered (e.g. the passport number).”Next, it is observed “The experts have examined the supplied audio files and find that there is no embedded metadata which might assist their enquiries. Time and date stamps appear to be of the most recent copying of the file and not of the point of origination”.The experts’ consideration of the report generated by an unannounced audit of Synergy College on 15 May 2012 highlights that while the auditor expressed “mild concern”, no specific remedies or sanctions vis-à-vis the college were proposed.(16) In the MA appeal, two of the experts, Mr Stanbury and Professor Sommer, gave evidence to the Tribunal. Their oral evidence was confined to certain discrete issues and themes. The choreography of the judicial review cases and statutory appeal resulted in no objection to the evidence particular to one case being considered in all three cases.(17) Mr Stanbury, in his evidence, highlighted the following matters in particular:(d) The absence of any evidence that the security mechanism of password protection vis-à-vis candidate’s test computers was in operation.(e) The “hidden room” theory could involve the falsification of the completed tests of both genuine and fraudulent candidates.(f) Whereas the speaking and writing TOEIC tests, which were undertaken at a single session, were fully computerised, the listening and reading tests, also undertaken at a single session, were manual.(g) There is no evidence of any audit logs. An “audit log” is a computerised record which would demonstrate the chain of storage, handling, processing and transmission of the data generated by the speaking and writing tests (our formulation). (h) Metadata, if they existed, would be located inside the voice recording files: there are none. As a result, these files do not contain particulars of the time, date and location of the recordings therein stored.(i) Finally, Mr Stanbury’s expectation was that there would be in existence certain contemporaneous manual records, relating particularly to the names of candidates and the desk number allocated to each: there are no such records.(18) Professor Sommer further testified that the evidence fails to disclose whether the important act of uploading the files generated by the speaking and writing tests occurred automatically or involved some human intervention. He agreed that if human intervention was part of this process, this would have created an opportunity for manipulation of the files, particularly if there was a time lag. The latter could occur through, for example, a loss of internet connectivity, whether false or genuine. Finally, Professor Sommer focused on the issue of photographing TOEIC test candidates. His evidence was that he “never got to the bottom” of this. While this issue receives some consideration in the ETS test centre manuals and the witness statements of ETS employees, these sources are incomplete. In response to a question from the panel, Professor Sommar stated that the description of the Appellant MA in evidence of group photographs following completion of the test exercises bore no resemblance to what is specified in the manuals.(19) At this juncture, we would observe that while the joint memorandum of the three expert witnesses and the oral testimony of two of them have, inevitably, focused attention on certain discrete issues and themes, we have considered in their entirety the experts’ reports and all of the documentary evidence bearing thereon.The Appellant’s Case(20) The Appellant’s evidence takes the form of two written statements and his oral testimony to the Tribunal. These fall to be considered in conjunction with a substantial quantity of documentary evidence adduced mainly on behalf of the Secretary of State, much of it emanating from ETS. While we have considered this material in its entirety, our attention shall be focused on the most salient elements.(21) We shall consider first the issue of the Appellant’s witness statements. The first of these is dated 26 February 2015 and was made with a view to the forthcoming FtT hearing approximately one week later. His second witness statement is considerably more recent, bearing the date 27 June 2016. The Appellant adopted both statements in full in his evidence to the Tribunal.(22) The Tribunal questioned the Appellant about his first statement. He replied that this was prepared by him, at his home. He then forwarded it to his solicitor. Next, he went through the statement with his solicitor. His interaction with the solicitor in finalising the statement entailed several meetings and spanned a period of two – six weeks. Ultimately, he signed the statement and it was sent with other documents to the FtT. (23) The Tribunal probed this issue with the Appellant with a view to securing as full an understanding as possible of both the contents of and the omissions in a statement made, with legal advice, by a person who is clearly intelligent and well educated and is a successful and experienced business man.(24) Chronologically, the first main chapter in the Appellant’s story is that of how he made arrangements to undertake the two TOEIC tests. The Appellant’s first witness statement contains the following passage: “When I decided to apply for a Tier 1 Entrepreneur Visa, I approached Oaks solicitors for assistance in preparing my Entrepreneur application. Prior to making my application, I decided to sit my English Language test at ETS Global UK at Cauldon College, 2nd Floor, 9 City House, Cranbrooke Road, Ilford, IG1 4DU. This was because the English language requirement was a mandatory requirement for my application. I am very fluent and conversant in the English language. I had no doubt or hesitation in passing the test. In fact, I have qualifications in Nigeria which were the equivalent of a Degree in the UK. The only difficulty was that because I was travelling so frequently in and out of the country for business, I did not have the time to obtain my qualifications from Nigeria to have it [sic] verified …. as being equivalent to a UK Degree. My solicitors did advise me to do this but I did not have the time and so I decided to sit the English language test in the UK. In fact, since the cancellation of my visa when my solicitors advised me to obtain NARIC verification, it has taken them from November 2014 to February 2015 to obtain the verification. It was a long winded procedure.”Oaks solicitors are the firm which has represented the Appellant throughout the litigation process, beginning with his appeal to the FtT. (25) Oaks solicitors did not feature at all in the Appellant’s evidence to the Tribunal relating to this discrete issue. Rather, his evidence was that when he was applying for his entrepreneur’s visa he sought advice from a friend (largely unidentified, though the Appellant belatedly divulged a forename). This gave rise to his friend’s lawyer “booking” the test for him. The test (singular) arrangements were then communicated to the Appellant by a text message. Pausing at this juncture, we observe that none of this evidence is contained in either of the Appellant’s written statements. We have drawn attention to the use of the singular in the Appellant’s descriptions of the “test” as it was abundantly clear to us that he was purporting to describe a single, isolated event in his evidence to the Tribunal.(26) When the Appellant was questioned more closely about this topic by the Tribunal, his replies disclosed four noteworthy facts. First, he does not know the name of the solicitors who (he claims) made the TOEIC test arrangements for him. Second, he does not know their place of business, though he believes it to be somewhere in East London. Third, he has not communicated with these solicitors at any time since the tests. Fourth, the solicitors have not levied a professional fee for their services, the Appellant has made no enquiries in this regard and no payment has been made. (27) Sequentially, the next issue canvassed in some depth at the hearing concerned the test centre where (per the first of the TOEIC certificates) the Appellant claims to have undertaken the first of the two tests, on 28 February 2013. In his first, detailed written statement, the Appellant states that he underwent this test at Cauldon College. This, of course, was the listening and reading test. However, in his evidence to the Tribunal, the Appellant gave the following, markedly different account, none of which is replicated even obliquely in his witness statements. He claimed that he was driven by his chauffeur to Cauldon College, where he entered the reception, paid his fee and was then given the address of another centre. He was driven to the other centre, where he presented his identification and registered using his passport. Following this he underwent a test in a room where he chose his own seat, in the presence of an unspecified number of others and an invigilator. Later, he suggested that there were some 20 candidates. He could not recall where he was seated. The invigilator did not speak to him at any time. No one asked for his passport. Why was none of this included in the Appellant’s witness statements? He could not say.(28) It is true that in the Appellant’s first detailed statement he describes undergoing two separate tests on the two dates specified in the TOEIC certificates. However, in his description of the events and circumstances pertaining to the tests, he makes no distinction between them. This extends to saying nothing whatsoever about different venues. Furthermore, his estimate of 20 candidates contrasts with his inability to (even) estimate any number in his oral testimony, initially. Nor can one reconcile his oral testimony that he had no recollection of where he was seated with his written evidence that on one of the test dates (unspecified), he was seated “next to a window”. (29) The Appellant’s assertion about the events of 28 February 2013, concerning the first limb of the TOEIC test, was, inevitably, probed in a little detail. The kernel of his story was that he was driven to Cauldon College, where he registered and paid the requisite fee and was redirected to Queensway College, to which he was driven by his chauffeur. At one stage of his evidence the Appellant was asked several times by the Tribunal: to where was he driven? In response, the best he could manage was “a different location”. He was unable to identify any landmarks of any kind, the area in general terms, the district or the street name. He was unable to provide any physical description of the building in question or its surroundings. He could not estimate the journey time. His explanation was that he was busy working in the back seat of the vehicle. (30) In this context, it is appropriate to highlight the Appellant’s evidence concerning events at Heathrow Airport on 14 October 2014 (to which we shall return). The Appellant testified that, following his detention, he telephoned his chauffeur “to find out where he took me for the first test”: the chauffeur was unable to tell him anything. While we weigh in the balance the Appellant’s claim that the chauffeur’s initial response was that he was parking the car and would call back, the Appellant gave no evidence about a returned call. Furthermore, the Tribunal heard no evidence from the chauffeur. Thus the incognito of why parking a car prevented a reply to a quintessentially simple questions endures.(31) The next issue concerns the tests themselves. In his main witness statement, the Appellant, without any differentiation between or among tests, avers that everyone was wearing ear phones. We readily infer, fortified by the absence of any evidence to the contrary, that ear phones were not required for all four limbs of the TOEIC test. Specifically, we find that ear phones were not required for two of the four elements, namely reading and writing.(32) We now turn to consider certain documentary evidence and the Appellant’s testimony pertaining thereto. We preface this with the observation that the TOEIC certificates do not record either the time or the venue of the tests purportedly taken. The data which they do record are the claimed candidate’s name, date of birth, registration number, date of testing, expiry date of certificate (invariably two years later) and the candidate’s scores in the two English language skills tested.(33) The names of both the Appellant and Queensway College appear on certain official documents bearing the date 28 February 2013, which coincides with the first of the two TOEIC certificates. The Appellant’s passport number is recorded on two of these documents. One of the documents is a seating plan, signed by an invigilator, which allocates a total of 30 surnames to individually specified seats in a room apparently 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