[2024] UKUT 00142 (IAC)

We have been provided with copies of two audit reports relating to LCSS. It was inspected by Dianke Cisse on 20 June 2012 at 10:25am. The audit report for that visit states there were two testing rooms available with six ‘test takers’ in each room. The overall impression set out on that report is that “The session has been well administered”. There is however evidence before us from Andy Byrne-Smith, an officer in ‘Operation Kraken’that no ‘speaking and writing’ tests were uploaded by LCSS on 20 June 2012. We have been provided with a copy of an exchange of emails on 20 June 2012 between Saiful Islam, the IT Administrator at LCSS and Tom Parker, the UK Operations Manager at ETS Global. LCSS claimed there had been a ‘short circuit’ during the morning of 20 June 2012 and so the ‘speaking and ‘writing’ tests that morning would have to be repeated. That was the test session referred to as having been ‘well administered’ in the audit report.

Mr Shury visited LCSS on 16 January 2013, together with Ahmad Bdour. Their report is more comprehensive and confirms they arrived at 14:18. Mr Shury entered a room with six ‘test takers’ present. Only one had their ID. He was told by the TCA that the ID documents for the other test takers were being copied. During the ‘speaking’ element of the test, only one of the ‘test-takers’ (the one who had his ID) was speaking. The room was left unattended by the TCA on two occasions, and during one of those, Mr Shury observed test takers glance at each other’s screens and appear to communicate. During the test, one of the TCA’s came in and asked one of the ‘test takers’ to leave ‘due to difficulty logging on’. Ahmad Bdour entered the room with a copy of the ‘attendance list’ and they proceeded to check the ID of those in the room. Two of the ID’s matched the test-takers and the attendance list. Two others had provided provisional driver licences and were not on the attendance list. One had provided a national ID which was on the list and appeared to match. The two who were not on the attendance list were asked to leave the room by TCA’s. Mr Shury states he saw a TCA flick a switch, and two of the remaining test takers told him they had been disconnected. He states that at that point, they left the test room, and there was an apparent power outage in the building which lasted a few seconds. Ahmad Bdour told the TCA that all tests were cancelled due to irregularities, and the test takers left the building. Mr Shury was told by Ahmad Bdour that he suspected the sessions were being ‘run remotely’. Having left the building, they realised they may need to check the computers further, so they headed back to the test centre. The audit report records:

“We would have arrived back at around 15:25. We entered the second test room, and looked at the computers, asking questions to the TCAs about how the sessions had been run. At this point, the director of the college took us into this office, and admitted to us that he had allowed the sessions to be run remotely; he showed us the set up of how this was done, via a host computer in a back office, and a bank of computers further inside this room.

We then left the test centre.”

In his witness statement Mr Shury states the significance of power outages are that the test would not be uploaded. He also confirms that Mr Bdour had told him that he had seen ‘writing appear on computer screens when the test-taker was not typing’. Enquiries were instigated by Mr Bdour with YBM in Korea to establish whether it would be possible for someone to control a computer being used for a speaking and writing test’ so that a ‘proxy test taker’ could take the test on a candidate’s behalf, without having to be physically present at the test centre.He described what he had seen in the following way:

“In a test center they had 2 testing rooms, one was a hidden room in which they had proxy test takers, I will refer to as room (X) and in the other room they had the real test takers which I will refer to as room (1). In room (1) we noticed that the test takers typing was not in sync with what was typed on the monitor, I held a test taker’s hand the typing went on, I then realized that it was the same for all test takers.

After investigations, we were shown Room (X) which had all the computers that were running in the exam, this is where they have the proxy test takers and the exam software running and it appears that in room (1) they only have a projection on the screens of the real test takers of the screens of the test that is running in Room (x).

Through our investigation we understood that they are not using any special software but a “panel” I don’t exactly understand what that means but I saw a lot of switches and cables in Room (x), I believe that they could not have done this from outside the cabled network as they would if they had the chance, so I believe that all computers in room (1) and (X) are on the same network and connected through Ethernet cables.”

The response received from YBM was:

“Our development group has reviewed the case based on the limited information provided below, but found no concrete clue about what this center did for cheating. I was advised that there is a clear limitation in controlling the security by technology, unless the center supervisor is on the test‐taker’s side and cooperates each other (sic) for cheating. At the moment, it is very hard for us to know that any software was used at this center for cheating or dual monitors were used to hide proxy test‐taking….”

In a further email Ahmad Bdour explained that he had personally attended the test centre and provided the following information:

“The test administrator was indeed part of this setup and coordinating all the activity as they had a hidden room as I explained earlier in which the proxy test takers were seated in, and the real test takers seated in the real test room and were pretending to answer the speaking section and the typing, while actually all they had was remote access to the computers in the hidden room in which the proxy test takers were taking the tests for them, making any inspector think that they are actually answering the questions themselves.

As far as the test center administrator explained to me when he showed me the hidden room, there was no software involved, they only used “panels” I don’t know what that exactly means, but all the computers in the hidden room were hooked up directly to a switch through ethnic cables, I am not sure if you can share monitors through ethnic (sic) cables…”

Ahmad Bdour was told that YBM were unaware of ‘panels’ and that they were unable to ‘capture the situation’ from the information provided.

The evidence of Mr Shury, which we accept, certainly raises concerns about the willingness of ETS Global, France, and its management to intervene directly and address or bring to an immediate end, the contracts entered into with colleges, and to tackle the frauds being identified. It is clear that those such as Mr Shury and Mr Bdour continued in their efforts to identify those tests centres about which they were particularly concerned between 2012 and 2013, albeit the resources made available were likely to have been inadequate.

In DK and RK, the Tribunal noted the absence of evidence from ETS, albeit ETS had had some direct input into some of the witness statements. The Tribunal said, at [109], there was nothing in the material before it in the appeals under consideration to suggest that the lack of evidence directly from ETS ought to raise any suspicion that evidence that might exonerate the appellants was being concealed. The Tribunal evaluated the evidence without hypothesising about what might be the effect of other evidence.

The Tribunal said:

“110.

… The witness statement of Ahmad Bdour, who worked for ETS and was involved in inspecting testing centres in the UK and elsewhere, does not help the appellants either. It may show that both ETS and the Home Office were or ought to have been aware that fraud was taking place. But it is very far from suggesting that there was any error in the process of transmission of entries, and of course it is not relevant to the question whether frauds were actually committed by particular individuals, except that it contains personal observations of frauds of the sort alleged in the other evidence.”

As to ETS itself, the Tribunal said:

“120.

… there is no good reason to think of any error in linking the entries examined and classified by ETS with the entries actually submitted on behalf of the candidates to whom they are attributed. The academic evidence was that the “chain of custody” was not absolutely secure and could have been better. That is a world away from saying that it was not in fact wholly reliable. The assertions are made in wholly general terms and any general assertion of that sort is an assertion that ETS has not been reliable in attributing test entries to candidates. But ETS is not concerned only with centres administering TOEIC to those who need a particular result for UK immigration purposes. ETS is, as we have noted above, an organisation with an international portfolio of important and well-regarded tests. We have not heard of any substantiated claim that in respect of any test they have failed in the most basic duty of an examining board, to ensure that the entry examined and attributed to a candidate is the entry made by or on the authority of that candidate. It is in our view inconceivable that ETS would retain the work that they do, if it was thought that their administration was in this respect unreliable.

The number of staff employed by ETS Global to oversee the test centres in the UK was, with hindsight, inadequate. Steps were taken to address concerns regarding particular colleges once it became apparent that there were concerns about the reliability of certain test centres. Mr Shury was clear in his evidence that with more resources and permission from senior management, more could have been done. The reluctance to address the concerns within the higher management of ETS Global may, as Mr Ó Ceallaigh submits before us, be because financial considerations such as the need to recover outstanding debts from fraudulent test centres were prioritised, but we are not prepared to speculate upon the commercial risks that ETS Global may have been exposed to, if it had simply pressed ahead with withdrawing from its commercial contracts.

Mr Ó Ceallaigh submits the Post Office litigation has revealed that ‘computer evidence’ must be treated with caution and cannot simply be assumed to be accurate. That is undoubtedly true, but the position in not analogous. The fraud here is not established because of some possible glitch, bug, malfunction or manipulation with the hardware and software operated by ETS, but by positive steps taken to manipulate the test results by those charged with administering the tests by ETS, and the candidates taking the tests.

The issues in relation to the manner in which ETS Global internally addressed the concerns regarding the frauds does not in our judgment 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. If ETS Global were seeking to bury their heads in the sand and avoid having to face the extent to which fraudulent tests were being undertaken, it would, if anything, under-report the extent of the fraud.

We have no doubt that there may have been weaknesses in the security systems and with the benefit of hindsight, additional security features could have been implemented to ensure that there was greater certainty that the correct candidate had taken the test marked. It is the nature of a fraudulent enterprise that the perpetrators of the fraud will endeavour to be one step ahead of those seeking to combat the fraud. The introduction of additional security features is very often no answer because no security feature would be infallible and there is a wealth of evidence that on the whole, test centres and candidates were working in tandem and implicit in the fraud together. A candidate was able to take the test in the knowledge that they would pass and the test centre was able to benefit from the revenue generated by the fraudulent enterprise.

As to the evidence of the fraud itself, in DK and RK, the Tribunal said:

“122.

… there is no reason to consider that anybody other than the candidates and the test centres in collusion would have wanted to falsify results in this way. We may test this strand by seeing what opportunities there might be for interference with a genuine entry to turn it (as it were) into a fraudulent one. We use that phrase because it is important to be clear that it would be necessary both to add the fraudulent (proxy) entry to the material examined by ETS and to remove the genuine entry. The genuine entry could not be left with its original identity, because that would prevent the addition of another entry having the same co-ordinates; and it could not be exchanged with another genuine entry because that would result in unexpectedly low marks for the victim of that exchange, with consequent appeals, comparisons of the candidate’s voice and that on the test, and clear evidence of the sort of failure of administration that we have just indicated in our discussion of the first strand as completely absent.

123.

What would be needed therefore is a process after a candidate’s genuine entry that could substitute an entry consisting of answers given by a proxy tester. As the evidence before us showed, unsurprisingly, this would require considerable technical ability in breaching the security of the test system. There is no evidence that that could even be achieved. If it could be achieved, it is virtually inconceivable that it would be undertaken without any reward for those taking part. Why should anybody go through the test entries, and take great trouble manufacturing better entries and substituting them, if not at the instance of the candidate? In any event there is not the slightest evidence that anybody did or would act in this way.

124.

Professor Sommer speculated that a test centre might act in this way in order to manipulate results and so achieve a favourable reputation. That will not do at all. A college might possibly want to make sure that its students did well. If they did, the college could advertise its success in bringing students to the necessary standard and so get more students. But a test centre could not advertise itself in that way: if the tests are administered properly there is no good reason for examinees at one test centre to do better than at another. Even without advertising, the results, if they became known, would risk exciting suspicion (indeed the level of success at certain test centres was one of the features leading to the analysis in these cases). Anyway, a test centre has no particular interest in getting candidates through a test: if they pass it never sees them again, but if they fail, they have to pay to take the test again.

125.

There is no perceptible way in which the proxy test entries could have been inserted in the system after the candidates had taken honest tests; and there is no perceptible reason for anybody to insert or substitute them, except at the instance of the candidate. We are left, therefore, with the time of the taking of the test. The material that achieved notoriety in the Panorama investigation and which was used in the criminal trials as well as in earlier episodes of the ETS litigation in these Tribunals shows what happened there. Two observations need to be made. The first is that it is highly unlikely that any candidate present on one of the occasions when proxies were being used was not fully aware of what was going on. The second is that it is if anything even more unlikely that such a system would then attribute proxy entries to anybody who had not taken part in the dishonest scheme, making whatever payment or other arrangement was in place.

Mr Stanbury noted the SSHD is reliant on ETS for proof of fraud. He noted that ETS have tested the files using voice recognition software backed up by human checking and have found files where the same voice is attributed to more than one user's test. They also found files attributed to a single user with more than one voice. In his opinion the explanations are:

He considers the possibility that the files have been wrongly attributed to a candidate to be remote. He accepts ‘voice recognition’ is an area outside his expertise, but has been considered by Professor French previously. He accepts it seems unlikely that the voice recognition software and human checkers were wrong. Similarly he accepts that given the number of times files have common voices across different users makes it likely that there was considerable fraud being committed. Mr Stanbury accepts he has not seen any evidence to suggest how robust, or not, the lookup tool that is relied upon by the SSHD and its related data might be.

We are conscious of the evidence of Mr Shury regarding the lack of adequate oversight of test centres at a time when it was becoming increasingly apparent that there was widespread cheating across a number of test centres. The reliability of the ‘Look Up Tool’ is dependent on the reliability of the internal processes adopted by ETS. However, despite the wealth of evidence before us, as the Tribunal said in paragraph [120] of DK and RK, there remains an absence of evidence that in respect of any test identified, ETS has failed in its duty as an examining board, to ensure that the entry examined and attributed to a candidate is the entry made by or on the authority of that candidate.

The evidence has evolved with the passage of time. In his report, Mr Stanbury refers to a number of methods by which a candidate’s speaking and writing test can be substituted. Contrary to what is said by Mr Ó Ceallaigh, there was only one fraud. That is, a candidate cheating in a TOEIC test to ensure they achieved a pass. We accept, as Mr Ó Ceallaigh submits, that there was more than one method by which that fraud was perpetrated, and that different methods may have been operated at different test centres. The parties have identified at least six potential methods.

As Mr Stanbury himself accepts, as to the "types of fraud", much is speculation. We accept his evidencethat there appears to be good evidence of direct replacement as depicted in the episode of Panorama where pilots replace candidates in the test room (Direct substitution), and the use of TeamViewer (Remote control (includes Team-viewer type software).

We accept there is evidence of the use of ‘hidden rooms’ at some test centres, but that tells us very little about the actual way in which the fraud was operated by a test centre at any particular time. Mr Stanbury refers to the fact that Richard Shury and Michael Kossew previously believed that some form of automated cloning system would have been possible. He also refers to the Project Façade reports for ‘Queensway College’ and ‘College of skills and learning, Birmingham’

The fact that some form of automated cloning system might be possible is not evidence of what was in fact happening. The difficulty with the contemporaneous audit reports and emails that outline the concerns expressed by individuals is that the language used to describe what they saw is vague. Quite understandably, those individuals will not have had the technical expertise to establish precisely how the tests were being conducted, and they used loose and unspecific language, doing their best to describe what they had seen.

An audit of Queensway College on 17 September 2013revealed that a ‘secret room was identified where ‘pilots’ were taking the ‘speaking and ‘writing’ test on behalf of candidates that were located in the examination room. At the College of skills and learning, Birmingham, an audit visit and analysis of computers seized from the test centre revealed that ‘Team viewer’ software had been installed. This is evidence of the less sophisticated types of fraud involving a ‘hidden room’. The evidence of the operation of more sophisticated methods such as ‘parallel testing’ with a cloned PC manager is less clear, and as Mr Stanbury accepts would require at least some level of technical expertise.

Mr Stanbury is certain that it is possible that a candidate’s voice files could have been swapped or falsified with or without their knowledge. We accept it is possible but that is not the question in either this or any other appeal of this nature. It is trite to say that all of the methods identified by Mr Stanbury and others, and perhaps other methods that have not yet been identified, are possible. The fact that something is possible is not to say that is what happened. Beyond saying what is possible on a general level, as Mr Stanbury was bound to acknowledge, it is impossible for him to say in a particular case what method was adopted by a test centre and whether a particular candidate knowingly participated.

Mr O’ Ceallaigh accepts in his closing submissions to us that none of the witnesses is able to say with any confidence, what was going on at test centres in 2012. There is simply no way of knowing. The parallel testing method that has long been suspected by Mr Stanbury is simply one possible explanation for the fact that a person who had no reason to cheat, does not have his voice on the voice file. It is, however, he submits, more than a theoretical possibility.

There is evidence of some methods having been adopted by test centres and there is hypothesis about other methods. We accept there are, at least in theory, a range of ways in which the fraud and cheating was capable of being perpetrated. We say ‘in theory’ because although the theoretical possibility of any method cannot be ruled out, and there is a wealth of evidence of the less sophisticated methods adopted in which the candidate is complicit in the fraud, the evidence regarding more sophisticated methods is sparse and borders on simple speculation.

Take for example a method referred to by Mr Stanbury in his report. He accepts that in theory, a candidate might be able to gain access to the files on their computer and manipulate the results. That would require excellent computer skills and a poor level of security by the test centre. Having set out what would be required on the part of the candidate and test centre, he states:

“I believe this scenario is so unlikely that, although technically feasible, it can be reserved for a movie plot rather than real life.”

We accept the evidence of Mr Stanbury that where a test centre uses a ‘hidden room’, it is more likely that the administration staff would take the easier option of replacing all the candidate's results with those of proxy test takers. Adopting that course would be less prone to error.

The difficulty with all the candidates tests during a particular session being substituted with the tests completed by proxies, as Mr Stanbury accepted in cross-examination, is that it would mean the test centre has a 100% pass rate for that session, unless one of the proxy’s has been instructed to perform badly. However, he acknowledges that the use of a hidden room on a ‘per candidate basis’ would, although feasible, be difficult to administer.

He suggests there is a possibility and perhaps a probability, that on some days all the tests taken at a college are taken by genuine candidates. Again, that is entirely speculation, and in any event, will not assist any appellant in an appeal such as this because where the test is taken by a genuine candidate without the assistance of a proxy, the result, whether it is a pass or a fail, will not be ‘invalid’, because of the absence of the use of a proxy at all.

Mr Stanbury’s evidence that the test centre would only upload the tests completed by the proxies taking the test in a hidden room without a genuine candidate being aware, so that all the candidates would pass the test regardless of whether they were paying extra or not, is again, nothing more than speculation. In fact, it is contrary to the evidence. Mr Stanbury relies upon the email sent by Riaz Ashfaq to Richard Shury on 16 July 2013, regarding Queensway College that supports his claim that ‘hidden rooms’ are used. However in that email, Mr Ashfaq states that he had taken his nephew to do the test but his nephew was not allowed to take his own test. He provided the names of those responsible for maintaining the system and marketing, and again confirmed that “They do not allow anyone to take exam on their own”. What this evidence demonstrates is that where the use of a hidden room is operated, whatever sophisticated method is devised to avoid detection, the candidate is likely to be aware that they will be unable to complete a genuine test, and a candidate who proceeds to take a test at such a test centre is likely, as a starting point, to be as complicit as if there were simple ‘direct substitution’. It is evidence of the operation of a ‘fraud factory’, where the test centre has no interest in allowing genuine candidates to sit the test themselves.

Standing back, we ask ourselves whether the generic evidence relied upon by the SSHD is undermined by the evidence we now have, and is so tenuous, that taken at its highest, a Tribunal could not be satisfied on a balance of probabilities that an individual has dishonestly cheated. The general conclusions reached by the Tribunal in DK and RK are not in our judgment in any way undermined by the evidence of Mr Shury and Mr Stanbury. We are left in no doubt that in general, there was widespread cheating and test centres adopted the less sophisticated methods available of manipulating test results, working in collusion with candidates. It is possible that another method was adopted by a test centre but an appeal is not determined on what is possible. That something is possible is not to say it is probable. The question for a Tribunal is whether it is more likely than not, that the particular appellant they are considering in the case before them cheated.