Upper Tribunal Immigration and Asylum Chamber

[2024] UKUT 00142 (IAC)

Fecha: 21-Dic-2023

The Issues

The Issues

16.

The parties have agreed a schedule of issues:

Whether Mr Varkey cheated in his TOEIC English language speaking test in 2012, which will require consideration of:

The correct approach to the standard of proof where fraud is alleged;

Whether the evidence adduced by the SSHD is sufficient to meet the evidential burden;

The correct approach that a Tribunal should take to assessing whether, where there is a case to answer, the SSHD’s evidence is to be preferred to that of an individual who denies fraud;

ii)

Whether, in light of the answer to Issue i), the appeal should be allowed under Article 8 ECHR.

17.

The appellants submit that in addressing issue (i)(b), the Tribunal should address:

What evidence in respect of what was actually happening in the college in question, must the SSHD be expected to furnish before an allegation of fraud requiring an answer will be raised;

ii.

The extent to which ETS is a reliable organisation that can be simply presumed not to have made an error in producing, transmitting and storing data;

iii.

The significance of the fact that a test was taken at a so-called ‘fraud factory’.

18.

The appellants also submit that in addressing issue (i)(c), the Tribunal should address:

iv.

The relevance of the question of whether a person needs to cheat;

The relevance of a delay in the accusation being made and/or a right of appeal being provided.

19.

The appellants claim that in relation to these generic issues, 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) in light of the additional disclosure provided by the respondent and the additional expert evidence, in particular that of Christopher Stanbury.