[2024] UKUT 00142 (IAC)

The appellants’ claim that it will be necessary for the Tribunal to re-visit the conclusions reached in DK and RK (ETS: SSHD evidence; proof) India [2022] UKUT 00112 (IAC). The Upper Tribunal addressed; (i) the ‘legal and evidential burdens’ and (ii) the state of the evidence produced by the SSHD in ETS/TOEIC cases.

The Tribunal was concerned, in particular, with a certificate obtained by DK from a TOEIC Test at the ‘Universal Training Centre (“UTC”) which had been investigated by the BBC Panorama programme broadcast on 10 February 2014, and a TOEIC test certificate relied upon by RK from New London College. In each case the certificate had been cancelled by ETS as ‘invalid’ and in each case the SSHD had refused an application for leave to remain on suitability grounds, alleging that the test certificate relied upon was obtained ‘fraudulently’. Drawing upon the decision of the Court of Appeal in Adeyodin v SSHD [2010] EWCA Civ 773; [2010] Imm AR 704, the Upper Tribunal held that that the reference to “false” in paragraph 322 of the immigration rules means dishonestly false.

The Tribunal addressed the burden of proof at paragraphs [47] to [53] of its decision. We agree with the analysis that is set out.

The Tribunal confirmed that in in relation to an assertion of dishonesty in proceedings such as these, the standard of proof is the balance of probabilities. It rejected the submission made that in order to discharge the burden of proof, the Secretary of State would need to offer “cogent” evidence, citing the words of Baroness Hale in Re B (Children) [2008] UKHL 35 at [70]:

“Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where truth lies.”

The Tribunal said:

“58.

The evidence as a whole may consist of elements tending to support the proposition with the greatest of certainty, elements tending to support the proposition with much less certainty, elements that are neutral, and elements tending to undermine the proposition. It is their affect as a whole that counts. There is no requirement that any single element have any particular quality other than admissibility, in order to be allowed to contribute to the whole; and there is no requirement that the evidence as a whole have any degree of cogency except such as actually causes the trier of fact to be satisfied as set out above. If the evidence as a whole has that effect the fact is found; if it does not have this effect it is not found; and in neither case is anything contributed to the discourse by separate evaluation of the persuasive force of each item of evidence.”

The Tribunal considered the evidence relied upon by the SSHD to support the case that there was widespread fraud and cheating in ETS centres. The Tribunal referred to a summary from the BBC website of the materials exposed by the Panorama programme, and the evidence given at the criminal trials of some involved in the ETS frauds, to set the context that there is overwhelming evidence of fraudulent activity in a number of ETS centres. It recognised that an individual case can never be proved by evidence of generality, albeit whether the burden of proof is discharged in an individual case falls to be determined against the background of the fact that there were many thousands of results obtained fraudulently.

The Tribunal went on to consider the individual evidence in each case that comprises of two elements. First, the voice recognition and second, the integrity of ETS’s process for attributing entries to candidates. As to ‘voice recognition’ the Tribunal concluded that there may be a false positive rate of one per cent, or even possibly three per cent, but there is no proper basis for saying that the false positive rate was or would be any higher than that. The Tribunal concluded that the voice recognition process adopted by ETS is clearly and overwhelmingly reliable in pointing to an individual test entry as the product of a repeated voice. The Tribunal said that by “overwhelmingly reliable” it did not mean conclusive, but in general, there is no good reason to doubt the result of the analysis.

The Tribunal considered the criticism’s made by Professor Sommer regarding the continuity of records between the test candidate and the test entry at two stages in particular. The first stage concerns the analysis of the sound recordings received by ETS and the steps taken to convert the recording onto a form suitable for voice recognition analysis. To that end, the Tribunal said that it is clear from the other evidence that certain test centres were providing a fraudulent service to fraudulent candidates who paid them for it. There is no reason at all to suppose that they would be other than extremely careful to ensure that the fraudulent entries were indeed credited to the fraudulent candidates.

The second stage concerned the test entries while in the control of ETS. The Tribunal said:

“106.

.. A suggestion of dissociation of entry from candidate at that point strikes at the heart of ETS’s analytical process. If there had been mix-ups at that point it would mean that as an examining authority ETS was unable to be sure that it was, in general, able to attribute the appropriate test results to candidates. Whatever may be said about the level of supervision (or lack of it) by ETS in this scheme, it does not appear ever to have been said that ETS’s examining process suffers from this defect. Indeed, any suspicion of it would destroy ETS’s reputation globally. According to Peter Millington’s statement, not challenged by the appellants on this point, ETS is the largest private not-for-profit educational testing and assessment organisation in the world, administering 50 million tests annually in 25,000 test centres in 192 countries. It is responsible in the USA for the SAT, a college admissions test, taken by 3 million students a year. It also administers the TOEFL (Test of English as a Foreign Language) test, the most widely respected English-language test in the world, recognised by thousands of colleges, universities and agencies in numerous countries, including the UK, the USA, Australia and Canada. It is clear from its international role and continued viability and dominance that (outside these cases) nobody seems to be suggesting that it cannot be relied upon to attribute test entries to candidates correctly.

107.

Again, we would not say that the evidence has to be regarded as determinative. There may be room for error (although none of the experts involved has detected any error, as distinct from showing that there is room for error). What is clear here is that there is every reason to suppose that the evidence is likely to be accurate.”

Having considered the wealth of the evidence before the Tribunal and the criticisms made of that evidence, the Tribunal reached the following general conclusions:

“127.

Where the evidence derived from ETS points to a particular test result having been obtained by the input of a person who had undertaken other tests, and if that evidence is uncontradicted by credible evidence, unexplained, and not the subject of any material undermining its effect in the individual case, it is in our judgment amply sufficient to prove that fact on the balance of probabilities.

128.

In using the phrase “amply sufficient” we differ from the conclusion of this Tribunal on different evidence, explored in a less detailed way, in SM and Qadir v SSHD. We do not consider that the evidential burden on the respondent in these cases was discharged by only a narrow margin. It is clear beyond a peradventure that the appellants had a case to answer.

128.

In these circumstances the real position is that mere assertions of ignorance or honesty by those whose results are identified as obtained by a proxy are very unlikely to prevent the Secretary of State from showing that, on the balance of probabilities, the story shown by the documents is the true one. It will be and remain not merely the probable fact, but the highly probable fact. Any determination of an appeal of this sort must take that into account in assessing whether the respondent has proved the dishonesty on the balance of probabilities.”

Mr Ó Ceallaigh submits the decision is of little assistance given the very limited view that the Tribunal was given of what was occurring on the ground in ETS cases. He submits the litigation thus far has been blighted by the lack of adequate disclosure, whereas we now have, for the first time, evidence that ETS knew as long ago as 2013 that the three frauds described by Mr Ó Ceallaigh in his opening, were in use.

We turn now to the issues.