[2024] UKUT 00142 (IAC)

We do not accept that this Tribunal should address each of the generic issues that we are invited to, as set out in paragraphs [17] and [18] above. Whilst we accept it is helpful for us to address the general principles and the evidence that we have heard and has been drawn to our attention, the evidence relied upon by the parties in a particular appeal is a matter for the parties and is fact specific.

As in this appeal, the single factual question that will arise in all appeals such as this is whether or not the appellant cheated in the TOEIC test in question. The appellants accept there is no room for doubt that there was widespread cheating in TOEIC tests. The appellants case is that all cases are not alike and the evidence varies significantly as between colleges and as between individuals.

It would be wholly inappropriate for us to provide prescriptive guidance setting out, for example, the evidence that must be provided by the SSHD in respect of what was actually happening in the college in question, before an allegation of fraud requiring an answer will be raised. The evidence will vary from college to college. In some cases, the evidence of a fraud will be perfectly obvious and the individual will be complicit, whereas in others, the fraud may be more discrete and in some cases, as is claimed by the appellants here, unknown to the individual.

Providing prescriptive guidance in the way we are invited to by the appellants risks being interpreted as exhaustive or considered to be a bare minimum and is inimical to the interests of justice. As will be apparent from this decision, a fact sensitive analysis of the evidence is required. We therefore focus upon the issues as set out in paragraph [16] above. Our consideration of the issues set out in 1(b) and (c) will however require us to have some regard to the extent to which ETS is a reliable organisation and the significance of the fact that a test was taken at a so-called ‘fraud factory’.