[2024] UKUT 00142 (IAC)

Varkey & Joseph (ETS – Hidden rooms)

Heard at Field House

THE IMMIGRATION ACTS

Promulgated on 11 March 2024

Before

THE PRESIDENT, MR JUSTICE DOVE

and

UPPER TRIBUNAL JUDGE MANDALIA

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

VARKEY & JOSEPH

(NO ANONYMITY DIRECTION MADE)

Respondent

Representation:

For the Appellant: Mr Z Malik KC, Mr C Thomann and Mr R Evans, Counsel, instructed by the Government Legal Department

For the Respondent: Mr G Ó Ceallaigh, and Mr A Schymyck, Counsel, instructed by Imran Khan & Partners Solicitors

1. The question for the Tribunal is always whether the respondent has discharged the burden of establishing whether it is more probable than not, that the individual acted dishonestly.

2. As the Tribunal said in DK and RK (ETS: SSHD evidence; proof) India[2022] UKUT 00112, 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.

3. Issues in relation to the manner in which ETS Global internally addressed the concerns regarding the frauds does not impact upon the integrity of the process that was put in place by ETS following the revelations in the undercover BBC investigation for reviewing and identifying those tests that are ‘invalid’ or ‘questionable’ at various test centres, or the audit trail by which the voice recordings were attributed to candidates.

4. There is evidence of the use of ‘hidden rooms’ at some test centres. There are a number of methods by which the TOEIC fraud may be perpetrated.

a. Direct substitution: Where a candidate books the test and a proxy physically takes their place at the PC.

b. Remote control (includes TeamViewer-type software): Where there is a ‘hidden room’ and a proxy in the ‘hidden room’ takes direct control of the PC in the ‘open room’.

c. Dual monitor: Where there is a ‘hidden room’ and the proxy does the test in the ‘hidden room’, while the candidate in the ‘open room’ has only a second monitor directly connected to the candidate’s PC in front of them, but cannot control anything.

d. Parallel testing (cloned manager PC): Where the test is run from two manager PCs, in an ‘open room’ full of candidates and a ‘hidden room’ full of proxies, with only the latter tests being uploaded.

e. Fake identities (with two rooms, one with cancelled tests): Where the test is done by a candidate in a fake identity and by a proxy in the candidate’s identity. The tests in the fake identities are cancelled pre-upload, so only the tests in the candidate’s identity are uploaded.

f. Mass replacement of voice files: Where voice files are re-used or recordings are made and then replayed during a test.

g. Possible other methods.

The methods identified at (a), (b), (c), and (e) operate so that the candidate is complicit in the fraud. The methods identified at (b), (c), (d) and (e) involve the use of a ‘hidden room’. Method (d) can operate so that the test can be taken by a genuine candidate who is unaware of any fraud, or by a candidate complicit in the fraud.

5. There was widespread cheating and test centres adopted the less sophisticated methods available of manipulating test results, by working in collusion with candidates. It is possible that another more sophisticated method was adopted by a test centre such as ‘parallel testing (cloned manager PC) but an appeal is not determined on what is possible. That something is possible is not to say it is probable.

6. The inherent probability or improbability of an event having occurred will, as a matter of common sense, be a relevant factor when deciding whether it did in fact occur. It forms part of the natural process of reasoning, but should not detract from a consideration of the wide canvas of evidence, before the Tribunal reaches a decision as whether the fact to be proved, here, dishonesty, happened or not.

Decision and Reasons