[2024] UKUT 00142 (IAC)

We have already set out the key factual background. There is evidence before us that Mr Varkey obtained a BA degree in English Literature (3rd Division) from the Mohanlal Sukhadia University in Udaipur, India in 2005. He was also awarded a Diploma in General Nursing, by the Directorate of Medical Education in Karnataka, Bangalore, in August 2007. He entered the United Kingdom on 27 August 2010 with entry clearance as a Tier 4 (General) Migrant for the purposes of studying an NVQ Level 3 qualification valid until 27 June 2012.

Between 21 August 2010 and 28 April 2012 Mr Varkey sat the International English Language Testing System (“IELTS”) secure English language tests. His scores were as follows:

Mr Varkey claims that he had been offered a place to study for an MBA, subject to him meeting the relevant English language requirement. His evidence is that there were no IELTS test slots available either in the UK or in India, and so after some on-line research he became aware of ETS TOEIC tests being offered by the London College of Social Studies. He called the test centre and then attended the centre to book the test. He was given a slot to take the tests on 21 May 2012. He claims that on that day he travelled to the test centre from his home in Seven Sisters. He claims there were around 12 to 15 candidates in the examination room and each individual completed the tests at a computer and were given sheets to mark answers. He claims the centre was very noisy and everyone was speaking loudly which meant he could not concentrate. Mr Varkey claims that he received the score report relating to the ‘listening and reading’ tests about a week later, but no report concerning the ‘speaking and writing’ tests. He telephoned the test centre and was informed that he had not passed the ‘speaking and writing’ test. He asked for the test scores and when he returned to the test centre he was informed that his scores were much lower than required to pass and, that he would have to retake the test. He claims he booked to retake the test on 19 June 2012 and paid for that test.

Mr Varkey left the United Kingdom on 27 June 2012 and returned to India. His friend called him in India and he learnt that he had passed the speaking and writing test. He applied to return to the UK. In support of his application for entry clearance, Mr Varkey relied upon two TOEIC test certificates issued by ETS, which set out the following scores.

We have been provided with a copy of the official score reports relating to both tests. The official score report relating to the appellant’s ‘speaking and writing test’ issued by TOEIC confirms the appellant’s name and date of birth. It records a 16 digit ‘registration number’ relating to a test completed on 19 June 2012.

In a witness statement of Darren Morley dated 17 May 2020, which we accept, it is said that the appellant’s test result had been cancelled by ETS on the basis that its own analysis indicated that the test result had been obtained via the use of a proxy tester. Mr Morley states the Home Office was notified by way of an entry on a spreadsheet, an excerpt from which he exhibits.The excerpt refers to the relevant ‘certificate number’ and claims the test is ‘invalid’. Although that excerpt refers to a ‘certificate number’, the TOEIC score reports do not have a ‘certificate number’. The ‘speaking and writing score report’has a ‘Registration number’ which matches the excerpt from the spreadsheet that is exhibited to the statement of Darren Morley. We are satisfied the test now referred to as ‘invalid’ by ETS is the test Mr Varkey claims that he took on 19 June 2012. Mr Varkey has obtained a copy of the voice recording and he accepts the voice on that recording is not his.

Adam Sewell has exhibited to his witness statement, a spreadsheet providing a summary of the TOEIC test data relating to LCSS which includes the test sessions attended by, and attributed to the appellant. Between 15 November 2011 and 15 January 2013 the LCSS completed a total of 1,281 ‘speaking tests’ that were later subject to voice analysis by ETS. Of these, 895 tests were deemed invalid, and 386 were deemed questionable. There were no tests that were found to be genuine. The ‘speaking tests’ were completed during the course of 100 test sessions. Proxy test taking was identified in 97 of the 100 test sessions. The three test sessions in which proxy test takers were not identified were sessions during which there were one to three candidates.

On 19 June 2012, the LCSS reported to ETS that the first appellant had sat a ‘speaking and writing’ test. On that day, the LCSS ran a speaking and writing test during the morning that was attended by ten candidates. It also ran a ’speaking only’ test in the morning that was attended by three candidates and another in the afternoon that was attended by six candidates. Mr Sewell states that the voice recordings of all ten candidates that completed the speaking and writing’ test were assessed by ETS and nine recordings, including that of the first appellant, were matched to the voice recordings of other TOEIC candidates. The nine candidates deemed to have used proxy test takers were reported to the Home Office as having ‘Invalid’ results, while the other one candidate was reported to the Home Office as having a ‘questionable’ result.

Mr Sewell referred to the claim made by the appellant he had taken a ‘speaking and writing test’ on or around 21 May 2012. He has been unable to find any record of the LSCC operating any ‘speaking and writing’ test on 21 May 2012. The nearest recorded sessions for ‘speaking and writing’ tests at the LSCC were on 16 May 2012 and 23 May 2012.

Mr Varkey maintains he completed the tests himself and has a very good English language speaking ability. He refers to the IELTS tests that he previously passed. He also refers to the IELTS test he has since completed, that reveal the following scores:

In cross-examination, Mr Varkey said his first language is Malayalam, and that when he studied his BA in English Literature, students had a choice of taking exams in either English or Hindi. He chose English. He was referred to the ‘Statement of Mark’ issued by the University. He accepted that in the first year, for English Literature he attained 80 marks. In the second year, he attained 79 marks and in the third year he attained 72 marks. The minimum mark required each year was 72 and the maximum mark possible was 200.

Mr Varkey said that he was planning to start an MBA in September 2012 and that is why he sat the IELTS test on 28 April 2012. He said that the test is hard and accepted that he was only achieving modest scores to the lower end of what was required. He accepted that his leave to remain was about to expire on 27 June 2012 and that he only had limited time to successfully complete the test. He claimed that no IELTS slots were available and that is why he chose to complete the ETS test. He accepted he could have completed an IELTS test in India, but claimed he wanted to complete the test as early as possible. He had spoken to the University and he had been advised to search on-line for test centres. He denied that he had chosen the test centre because he was tipped off that there were centres that could guarantee him the required score. He said that when he attended the test centre to book the test, he had paid for the test in cash.

Mr Varkey claimed that on 21 May 2012 he had completed the ‘speaking and writing’ test in the morning, and completed the ‘reading and listening’ test that afternoon. He said that when he attended to retake the test on 19 June 2012 he did not notice anything strange. In cross-examination he claimed there were about 12 – 15 people there. When asked about the absence of any information in his witness statement about the test he claims to have taken on 19 June 2012, he denied that that was because he had not taken the tests on that day.

We have received witness statements and heard oral evidence from Mr Rodney Ellington, the second appellant, and Mr Jijo Johnny. We accept that each of those witnesses were doing their best to assist the Tribunal, but we gain little assistance from their evidence. There can be no way of knowing the yardstick by which the witnesses called measure the appellant’s English language ability. The question for us is not whether the appellant was competent in his use of the English language in 2012, but whether he acted dishonestly. An ability to speak English does not mean that the individual was bound to pass any particular component of the tests and in any event, as has been recognised previously, there can be a myriad of reasons why even someone that has a reasonable grasp of the English language might nevertheless cheat in a test. We have no doubt that the second appellant sincerely believes that her husband is entirely honest and that he would not cheat, but as she was bound to accept, she was not in the UK at the material time and only joined her husband in November 2012.

Mr Stanbury expresses the opinionthat the first appellant’s test recording was never made because the LCSS was falsifying all tests, or if it was made, it was lost, replaced or confused with another recording later in the process, either deliberately or accidentally. In either case, that was done potentially without the knowledge or involvement of the first appellant. We are unable to attach any weight to his opinion. Although we accept the opinions expressed by Mr Stanbury regarding matters that are within his expertise, the difficulty with much of the evidence of Mr Stanbury is that he is prone to speculation. His opinion is based upon what he considers to be possible. He accepts however that he did not know what was actually happening at test centres in 2012. Any opinion expressed by him as to what the LCSS did strays beyond his knowledge or expertise. It is not for him to speculate as to what may have happened to any recording made.

We reject the first appellant’s claim that he had taken a ‘speaking and writing test’ on the morning of 21 May 2012. That was the third Monday in May 2012. The unchallenged evidence of Mr Shury is that the ‘speaking and writing’ tests occurred on the first, third and fourth Wednesday and the third Tuesday each month. Mr Varkey could not therefore have taken a ‘speaking and writing’ test on Monday 21 May 2012. The spreadsheet exhibited to the witness statement of Adam Sewell providing a summary of the TOEIC test data relating to LCSS confirms that on 21 May 2012, the LCSS completed 18 ‘listening and reading’ tests. His claim in his witness statement that there were 12 to 15 candidates and that it was very noisy is simply not credible. Quite apart from the fact that the LCSS would not have had any access to a ‘speaking and writing’ test on that day because no session had been assigned to them, there is no reason let alone credible reason why the LCSS would have mimicked a ‘speaking and writing’ test that the first appellant, and according to him 11 to 14 other candidates would think they were taking. That significantly undermines his credibility.

On 19 June 2012, the LCSS undertook speaking and writing tests during the morning and afternoon. Mr Varkey’s written evidence of that test is devoid of any detail and his evidence overall is vague at best. He said in his oral evidence that there were about twelve to fifteen people there. That, we note, is precisely the same number of candidates that he claimed he had taken the test with previously on 21 May 2012. In fact, his test was completed amongst a cohort of ten test takers. The evidence of Mr Sewell, which we accept, is that the voice recordings of all ten candidates that completed the speaking and writing’ test that morning were assessed by ETS and nine recordings, including that of the first appellant, were matched to the voice recordings of other TOEIC candidates. The nine candidates deemed to have used proxy test takers were reported to the Home Office as having ‘Invalid’ results.

Having considered all the evidence before us, we find that having failed in the IELTS test on 28 April 2012 to attain a minimum B2 proficiency score of 5.5 in reading, notwithstanding the score achieved for speaking and writing, the appellant was anxious to ensure that he completed the English language tests to ensure that he would be able to return to the UK after his leave to remain expired, so that he could enrol on an MBA course. He was, we find, aware that he could ensure that he would pass the tests by taking the test at a centre like the LCSS which was involved in widespread fraud and would facilitate a test by a proxy.

There is no credible evidence before us that in May 2012, the LCSS either had the expertise or was operating a method of fraud that involved parallel testing with a cloned manager PC. The audit report of the visit to LCSS by Mr Shury and Mr Bdour on 16 January 2013, and the subsequent enquiries that were instigated by Mr Bdour with YBM in Korea, refer to ‘proxy test takers’ taking the test on a candidate’s behalf, without having to be physically present at the test centre. Importantly, what Mr Bdour described to YBM was that they noticed that the test takers typing was not in sync with what was typed on the monitor. Mr Bdour said that he held a test takers hand, the typing went on, and he then realized that it was the same for all test takers. That is not indicative of the sophisticated setup required for parallel testing with a cloned computer, but evidence of the ‘remote control (including TeamViewer-type software)’ method identified by the parties. The parties accept that method operates so that the candidate is complicit in the fraud.

Standing back and having considered the evidence before us as a whole, including the evidence of the appellant and his witnesses, we are entirely satisfied that the respondent has discharged the burden that the first appellant employed dishonesty to secure the TOEIC ‘speaking and writing’ score that he relied upon in support of his application for entry leave to enter the UK as a Tier 4 student that was granted and was valid until 27 June 2013.

It follows that we dismiss the appeals.