United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: IA/31490/2015

THE IMMIGRATION ACTS

Heard at Field House	Decision & Reasons Promulgated
On 5 January 2018	On 21 February 2018

Before

Upper Tribunal Judge Gill

DEPUTY UPPER TRIBUNAL JUDGE SHERIDAN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

MOHAMMAD AMINUL ISLAM

(ANONYMITY DIRECTION NOT MADE)

Respondent

Representation :

For the Appellant: Mr T. Wilding.

For the Respondent: Mr Z. Malik.

DECISION AND REASONS

1.       The respondent (hereinafter "the claimant") is a citizen of Bangladesh born on 19 May 1979.

2.       On 26 September 2014, having resided in the UK continuously for over ten years, the claimant applied for indefinite leave to remain under Paragraph 276B of the Immigration Rules. By a decision dated 7 March 2015, the application was refused by the Secretary of State on the basis that the claimant did not satisfy Paragraphs 276B(ii)(c) and 276B(iii) of the Immigration Rules. She also refused the application under paragraph 322(1A) of the Immigration Rules.

3.       The claimant appealed to the First-tier tribunal where his appeal was heard by First-tier Tribunal Judge Scott-Baker. In a decision promulgated on 6 February 2017 the judge allowed the appeal under paragraph 322(1A) and then said: "... it follows that the Secretary of State must consider the [claimant's] application for indefinite leave to remain under the Immigration Rules". In other words, she remitted the case to the Secretary of State for consideration of paragraph 276B.

4.       The Secretary of State is now appealing against that decision.

Background

5.       In order to support a previous application for leave to remain (as a student), made on 18 June 2012, the claimant submitted to the Secretary of State a Test of English for International Communication ("TOEIC") certificate from Educational Testing Service ("ETS"). This concerned English language tests taken on 21 February 2012 and 22 February 2012 at the Synergy Business College of London.

6.       The reason given by the Secretary of State for rejecting the claimant's application made on 26 September 2014 for indefinite leave to remain was that ETS had undertaken a verification of the claimant's tests taken on 21 February 2012 and 22 February 2012 and decided that there was significant evidence to conclude that the certificate was fraudulently obtained by the use of a proxy test taker.

7.       The application for indefinite leave to remain was consequently refused under Paragraph 276B(ii)(c) of the Immigration Rules because the Secretary of State considered that the claimant's presence in the UK was not conducive to the public good and under Paragraph 276B(iii) (with reference to Paragraph 322(1A) of the Rules) because she considered that he had used false representations when making the application on 18 June 2012. She said she was not prepared to exercise her discretion in his favour.

Decision of the First-tier Tribunal

8.       The sole factual issue in contention before the First-tier Tribunal was whether the claimant had used deception through the use of a proxy test taker in respect of the tests taken at Synergy Business College of London in February 2012.

9.       The evidence adduced by the Secretary of State to establish that there had been deception included:

a)       Witness statements from Home Office civil servants, Ms Collings and Mr Millington. These statements are not specific to the claimant's case and have been relied on in multiple cases before the First-tier Tribunal. They explain the process by which ETS has identified where deception has been used.

b)      An "ETS TOEIC Test Centre Look Up Tool" spreadsheet (Annex A) showing that all eight of the claimant's tests taken on 21 February 2012 and 22 February 2012 had been identified by ETS as "invalid". This spreadsheet identifies the claimant by name and lists all eight of the tests he took.

c)       An "ETS TOEIC Test Centre Look Up Tool" spreadsheet (the first page of Annex B) showing that on 21 February 2012 125 tests were taken at Synergy Business College of London, of which 58% were found to be "invalid" and 42% were found to be "questionable".

d)      An "ETS TOEIC Test Centre Look Up Tool" spreadsheet (the second page of Annex B) showing that on 22 February 2012 104 tests were taken at Synergy Business College of London, of which 68% were found to be "invalid" and 32% were found to be "questionable".

e)       A report by Professor French commenting, inter alia, on the likelihood of false positives arising from the ETS methodology in identifying where a proxy test taker has been used.

f)        A report titled "Project Facade- criminal enquiry into abuse of the TOEIC Synergy Business School" (hereinafter "the Project Facade Report"). The Project Facade Report summarised the outcome of a criminal investigation into Synergy Business School and concluded as follows:

"Between 24/11/2011 and 15/01/2013, Synergy Business College undertook 4894 TOEIC speaking & writing tests of which ETS identified the following:

Invalid 2410

Questionable 2484

Not withdrawn (no evidence of invalidity) 0

Percentage invalid 49%"

"17. ... Invalid was termed as those where evidence existed of proxy test taking and/or impersonation and questionable were when test takers should retest due to administrative irregularities. A report into Synergy Business College showed that between 24 November 2011 and 15 January 2013 4,894 TOEIC speaking and writing tests had been undertaken which showed that 49% were considered invalid.

19. The Tribunal has considered these documents in the decision of SM and Qadir and it was accepted at head note 1 that this evidence combined with evidence particular to appellants [sic] sufficed to discharge the evidential burden of proving that the TOEIC certificates had been procured by dishonesty.

20. The evidence of Ms Collins [sic] and Mr Millington was considered in detail at paragraphs 14 to 26 of the judgment.

21. I was asked to note by Mr Gill that the only evidence relied upon by the [Secretary of State] were the documents produced at the outset of the hearing , there was no other evidence such as any voice recording or records. The general assertion was that because of the propensity of Synergy Business College results and that there had been a number of invalid decisions that an inference should be drawn that this decision [sic] was invalid but this was an inadequate assessment. He objected to the late production of the evidence and I was asked to note that the report by Professor Harrison had been dealt with in the decision of SM and Qadir but asked to note that before me there was not the same evidence as in SM and Qadir and in particular ETS had not produced any documents relating to the [claimant]. I was asked to note in particular that the [claimant] had produced a valid IELTS certificate from 2002 which had been accepted as genuine by the [Secretary of State]. He had also studied in English in the United Kingdom and he had produced those certificates. Those results had not been forged and he had been given leave to remain year by year. Mr Gill submitted that the [claimant] had done more than enough to offer an innocent explanation and the [Secretary of State] had failed to establish that his test result was invalid. The [claimant]'s ability in the English language was supported by his academic achievements. No test results have been submitted from ETS and if they had been submitted there could have been some cross-examination and insufficient evidence had been produced to show that the Section 322 refusal had been made out.

22. In SM and Qadir the Tribunal had considered the evidence from Ms Collins [sic] and Mr Millington. It was noted that neither witness had any qualifications or expertise vocational or otherwise in the scientific subject matter namely voice recognition, technology and techniques. The Home Office had been entirely dependent on the information provided by ETS. At that time it stated that the Home Office had no advice or input from suitable experts and there had been no evidence from any ETS witness.

23. I noted in particular from Mr Millington's evidence that to his knowledge the Home Office had not at any time requested ETS to provide the voice recordings in respect of any individual. Nor had the Home Office ever asked for the software used by ETS. The Tribunal noted that in the trial ETS had communicated its unwillingness to provide any of the voice recordings absent judicial compulsion to do so.

24. There was before us a report from Professor French which does not appear to have been before the Upper Tribunal in SM and Qadir. His report before me is dated 20 April 2016 which post-dated the case of SM. He was asked to comment on the likelihood of false positives having occurred and he confirmed for the reasons given that ETS was extremely unlikely to have produced some false positives and he concluded that the number of false positives emanating from the overall process followed by assessment of two trained listeners to be very small.

25. There was no specific evidence against the [claimant]. What is evident from the refusal letter is that ETS had undertaken a check of his test and confirmed to the SSHD that there was significant evidence to conclude the certificate was fraudulently obtained by the use of a proxy test taker but there is no actual evidence before me to support that assertion. All that is known about Synergy Business Centre is what is set out in the Project Facade report which stated that 49% of the results of that college were invalid. As it was pointed out at the hearing that meant that 51% of results were valid.

26. The [claimant] stated that he had completed an IELTS examination and a copy of the certificate from 2002 was before me. There was no allegation by the [Secretary of State] that this certificate was false. Further he had been in the United Kingdom since 2002 studying in English and he had satisfactorily completed a BBA in 2006 and been taught in English and he had then gone on to do other postgraduate qualifications. I also had the opportunity of receiving oral evidence from the [claimant] at the hearing and noted he was able to adequately express himself in the English language.

27. On the basis of this evidence I find that the [Secretary of State] has failed to establish that the [claimant] fraudulently obtained the TOEIC certificate. This evidence produced, looked at in the round, suggests that there is a possibility that the [claimant] fell within the 51% of students whose certificates had not been cancelled."

(our emphasis)

Grounds of Appeal and Grant of Permission to Appeal

a)       Ground 1 is that the judge failed to follow the correct approach to the burden of proof in line with SM and Qadir (ETS-Evidence-Burden of Proof) [2016] UKUT 229.

b)      Ground 2 is that the judge misunderstood the Secretary of State's evidence. There were two specific points raised on the Secretary of State's behalf under ground 2, which we will refer to as ground 2(a) and ground 2(b) and which are as follows:

i)            Ground 2(a): That the judge misunderstood the Project Facade report: at paragraph 25 of the decision the judge stated that the report recorded that 51% of results were valid when in fact no tests were found to be valid.

ii) (Ground 2(b)) The judge overlooked relevant evidence when she said, in the first sentence of paragraph 25, that " there was no specific evidence against the [claimant]".

c)       Ground 3 is that the judge failed to recognise that a person who is proficient in the English language may nonetheless engage in fraud, as explained in MA (ETS - TOEIC testing) [2016] UKUT 450 at paragraph 57, where the Upper Tribunal said:

"... we acknowledge the suggestion that the Appellant had no reason to engage in the deception which we have found proven. However, this has not deflected us in any way from reaching our main findings and conclusions. In the abstract, of course, there is a range of reasons why persons proficient in English may engage in TOEIC fraud. These include, inexhaustively, lack of confidence, fear of failure, lack of time and commitment and contempt for the immigration system. These reasons could conceivably overlap in individual cases and there is scope for other explanations for deceitful conduct in this sphere. We are not required to make the further finding of why the Appellant engaged in deception and to this we add that this issue was not explored during the hearing. We resist any temptation to speculate about this discrete matter."

d)      Ground 4 is that the judge failed to give adequate reasons why the Secretary of State's evidence was not sufficient to discharge the legal burden.

e)       Ground 5 is that the judge failed to recognise that a consequence of the claimant's certificate being cancelled by ETS was that the basis of his leave was removed. The judge should have dismissed the appeal rather than remit the case for the Secretary of State to consider paragraph 276B.

Assessment

a)       "All that is known about Synergy Business Centre is what is set out in the Project Façade report which stated that 49% of the results of that college were invalid. As it was pointed out at the hearing that meant that 51% of results were valid" (our emphasis) (paragraph 25); and

b)      "... there is a possibility that the [claimant] fell within the 51% of students whose certificates had not been cancelled" (paragraph 27)

"... [ETS] used voice analysis software corroborated by two human assessors independent of each other to assess the scale of the abuse. They identified 33,725 test scores that were found to be invalid and 22,694 that were questionable. Invalid was termed as those where evidence existed of proxy test taking and/or impersonation and questionable were when test takers should retest due to administrative irregularities. A report into Synergy Business College showed that between 24 November 2011 and 15 January 2013 4,894 TOEIC speaking and writing tests had been undertaken which showed that 49% were considered invalid."

(i) Firstly, he submitted that the error was not material because, at paragraph 27, the judge mentioned the fact " there is a possibility that the [claimant] fell within the 51% whose certificates had not been cancelled " after she had already found, at paragraph 27, that " On the basis of this evidence I find that the [Secretary of State] has failed to establish that the [claimant] fraudulently obtained the TOEIC certificate ". He submitted that, given that the judge had already made her finding that the Secretary of State had failed to establish that the claimant fraudulently obtained the TOEIC certificate before she mentioned that the claimant fell within the 51% whose certificates had not been cancelled, her misapprehension of the evidence was not material to this finding.

We drew Mr Malik's attention to the fact that the judge had also said, at paragraph 25, i.e. before her finding at paragraph 27, that the 51% of the test certificates were valid. Mr Malik did not wish to address us further, asking us to assess his submission.

Mr Malik seeks to rely upon the form of the judge's language at paragraph 27. One should not focus on form over substance. In any event, even on the basis of form, the fact is that the judge made a similar finding at the end of paragraph 25 which Mr Malik ignores.

In terms of substance, it is clear that the judge relied upon her view that 51% of the test results were valid in order to reach her conclusion, taking into account the claimant's oral evidence, that the Secretary of State had not discharged the burden of proof upon her. We have no hesitation in rejecting Mr Malik's submission on this issue.

(ii) Secondly, Mr Malik submitted that any errors in relation to ground 2(a) as well as ground 2(b) are not material for reasons which he relied upon to resist grounds 3 and 4.

i) Annex A to the ETS Look Up Tool shows that all eight of the tests he took at the Synergy Business College were declared invalid, as opposed to questionable. Mr Wilding submitted that this was specific evidence against the claimant.

ii) Annex B was in two parts, the first relating to all the tests that took place at the Synergy Business College on 21 February 2012 and the second relating to all the tests that took place at the Synergy Business College on 22 February 2012. In relation to the tests that took place on 21 February 2012, 125 tests were taken, of which 42% were questionable and 58% invalid. In relation to the tests that took place on 22 February 2012, 104 tests were taken of which 32% were questionable and 68% were invalid. It follows that none of the tests that took place on 21 February 2012 and 22 February 2012, the dates upon which the claimant took his tests, were valid. Mr Wilding submitted that this was specific evidence against the claimant as it was capable of showing that the claimant did not take the tests that resulted in the award of his certificate, which the judge failed to consider.

"There was no specific evidence against the [claimant]. What is evident from the refusal letter is that ETS had undertaken a check of his test and confirmed to the SSHD that there was significant evidence to conclude the certificate was fraudulently obtained by the use of a proxy test taker but there is no actual evidence before me to support that assertion...."

(our emphasis)

"13. Another reason given in the determination is the recent case decided by the UT, Home Secretary v MA [2016] UT 00450, in which, in a decision promulgated on 16 September 2016, the UT observed that there was far more evidence, both general and specific, than there was in the cases before us. The Tribunal stated that there was clear evidence of TOEIC corruption at the test centres where MA claimed to have been examined, and outlined the nature of the new expert and individual evidence. The schedule, however, did not explain how the fact that, in cases that will come before the UT in future, there may be more evidence can affect the large number of applications and appeals that are pending in this court, many of which have been through the Tribunal. There is also no explanation as to why guidance by this court is no longer necessary for cases already decided in the UT, either before or after its determination in the cases of these respondents, on similar evidence to the evidence in their cases.

18. I have stated that the UT decided that the Secretary of State had discharged the evidential burden that lay on the Secretary of State so there was a burden, again an evidential one, on Mr Majumder and Mr Qadir of raising an innocent explanation. The UT accepted (at [69]) the submission on behalf of the Secretary of State, that in considering an allegation of dishonesty the relevant factors included the following: what the person accused had to gain from being dishonest; what he had to lose; what is known about his character; the cultural environment in which he operated; how the individual accused of dishonesty performed under cross‑examination, and whether the Tribunal's assessment of that person's English language proficiency is commensurate with his or her TOEIC scores; and whether his or her academic achievements are such that it was unnecessary or illogical for them to have cheated. There was no criticism in this court by Mr Kovats of that approach."

Notice of Decision

Signed
Deputy Upper Tribunal Judge Sheridan	Dated: 28 January 2018