[2024] UKUT 00142 (IAC)

In Ahsan, Underhill LJ said:

“23.

The evidence supplied by the Secretary of State in the substantive TOEIC cases has developed over the course of the litigation. In the earlier cases she sought to rely essentially on (a) generic evidence, given by two Home Office officials, Rebecca Collings and Peter Millington, about the reports received from ETS identifying results as "invalid" or "questionable", and the methodology underlying those reports; and (b) the use of an "ETS Look Up Tool" to marry up those reports with the case of the individual appellant. These cases were not always well-prepared, and in some the look-up tool evidence was not provided at all, or was provided so late that it was not admitted. In more recent cases, however, the Secretary of State has supplemented that evidence by a report from another Home Office official, Adam Sewell, who has analysed the test results from a number of test centres in London. On the basis of his evidence the Home Office case now is that certain centres were "fraud factories" and that all test results from those centres, generally or on certain dates, are bogus. The centres in question include Elizabeth College, which has also been the result of a criminal investigation, under the name Project Façade.

24.

The evidence adduced by individual appellants in rebuttal will obviously vary from case to case. At a minimum they can be expected to give evidence that they did indeed attend the centre on the day recorded and took the spoken English test in person. But that may be supplemented by supporting evidence of various kinds: a frequent theme is that it is said to be demonstrable from other evidence that their spoken English was very good and that they thus had no motive to cheat.”

In RAM v Secretary of State for the Home Department [2023] EWCA Civ 1323, Underhill LJ (with whom Coulson LJ and Sir Launcelot Henderson agreed) said:

“13.

…[The judge]  was entitled to, and did, take as his starting-point in paragraph 42 both the fact that the appellant's result was found to be invalid by ETS – that is, on the basis that the voice was that of a proxy – and the fact that [New London College] was an established fraud factory. Those findings, as the UT makes clear in DK and RK, make it not only probable but highly probable that he had in fact cheated. He was nevertheless obliged to consider the appellant's evidence to the contrary. He recognised that and considered it fully at paragraph 43, focusing on the main point which had been made before him by Mr Bellara related to the standard of the appellant's English. But it is one thing to say that the appellant's evidence had to be considered; it is another to say that it was obliged to be accepted. It was the judge's task to decide whether that evidence outweighed the effect of the generic evidence; and the message of DK and RK is that a mere denial is very unlikely to do so.

14.

Mr Bellara says that the appellant's evidence amounted to more than a mere denial, but except in the most literal sense I cannot accept that. It is true that he adds a few details to his account of having taken the test himself - about how he chose NLC as the college to take his test, how he travelled there, and the numbers of people present and the like. He also (a point to which I will return) gives evidence about his proficiency in English. But none of that very limited amplification of the bare assertion that he took the test was capable of casting serious doubt on the reliability of the results. The fact that the oral evidence was given consistently and with apparent conviction, and thus was credible if viewed in isolation, is not enough. The question for the judge was whether it was sufficient to discharge the evidential burden of proof created by the generic evidence, and he was fully entitled to reach the conclusion that it did not.

15.

As regards the evidence about the appellant's standard of English at the time that he took the test, which is the subject of ground 2, I can see nothing wrong with the judge's reasoning in paragraph 43 and, certainly nothing amounting to an error of law with which the court could interfere. Mr Bellara effectively acknowledged that this was very much a secondary point in his grounds of appeal, as Snowden LJ had already observed.”

To put what was said by Underhill LJ in paragraph [15] in context, the Upper Tribunal judge had considered the appellant’s claim that he had studied the English language in India. The judge accepted there may have been some improvement in his English language ability during the ten months in this country, but went on to note that there may be many reasons as to why somebody with a reasonable command of the English language might use a proxy taker, for example fear of the adverse impact of failure, or a concern as to failure consequent to nerves. See MA (ETS – TOEIC testing) [2016] UKUT 450.

Mr O’ Ceallaigh submits the decision of the Upper Tribunal in MA was specific to the facts where MA was hopelessly lacking in credibility on a range of issues. He submits that where a person is entirely lacking in credibility, that cannot be displaced by the fact that they speak good English, but that was elevated in DK and RK, to a point of principle. We do not accept that submission. At paragraph [108] of the decision in DK and RK, the Tribunal was addressing the evidence of Professor Sommer to the APPG that one of the features of evidence that one would look for is corroboration. It is obvious that if an individual displays a grasp of the English language that is lower than that required for the test, that is likely to weigh against the individual. The Tribunal used the phrase “incompetence in English”, and a judge must be careful not to fall into the trap of conducting some assessment of the individual’s competence in the English language. That does not in any way undermine what was said in MA:

“57.

…In the abstract, of course, there is a range of reasons why persons proficient in English may engage in TOEIC fraud. These include, inexhaustively, lack of confidence, fear of failure, lack of time and commitment and contempt for the immigration system. These reasons could conceivably overlap in individual cases and there is scope for other explanations for deceitful conduct in this sphere….”

A judge has to start somewhere. The evidence before us simply serves to re-enforce the fact that there was widespread fraud and cheating at ETS test centres. As the Tribunal said in DK and RK, it is clear beyond peradventure that where there is evidence from ETS that points to the test relied upon by the individual as having been taken by someone other than that person, that is strong evidence that will weigh against the individual and calls for a credible explanation.

The parties agree that a Tribunal must consider the evidence before it as a whole and the decision will be fact sensitive. In reaching its decision, the Tribunal must survey the wide canvas of evidence before it. The factual determination must be reached on the basis of all available materials, and the Tribunal must consider each piece of evidence in the context of all the other evidence.

We accept that in many cases there is likely to have been a passage of time, sometimes significant, before the allegation of dishonesty is made by the SSHD. There are important limits as to the reliability of human memory, and a greater confidence displayed by a witness does not necessarily correlate with a more accurate recollection of events. Contemporaneous evidence to support an account remains important and the absence of documents that should be capable of being produced to support an individual account, is a factor that is capable of weighing against the individual. If the account given by witnesses cannot be tested by reference to other evidence before the Tribunal, the judge is likely to place greater reliance upon their assessment of the credibility of the witness overall, and the inherent plausibility (or implausibility) of their account.

Having considered the explanation provided by the individual it is for the Tribunal to determine whether the respondent has established that it is more likely than not, that the appellant acted dishonestly.