The appellant is a national of India, now aged 33. He first came to this country on 19 September 2011 on a student visa, and in June 2013 he was granted a Tier 1 entrepreneur visa. His immigration history thereafter is a little complicated, but what matters for present purposes is that on 13 January 2020 the Secretary of State refused an application by him for further leave to remain on suitability grounds. What she alleged was that for the purpose of the application for the entrepreneur visa, which was eventually granted in 2013, he had submitted a certificate of proficiency in English (the so-called TOEIC certificate) which he had obtained by having the oral part of the test taken for him by a proxy. The test was administered by Educational Testing Services ("ETS") and taken by the appellant at New London College ("NLC") on 18 July 2012.

The appellant appealed against that decision. His appeal was initially dismissed by the First-tier Tribunal ("FTT"), on appeal to the Upper Tribunal ("UT"). The decision of the FTT was set aside, and it was directed that the decision should be remade following a de novo hearing before the UT itself. On 21 July 2022, UT Judge O'Callaghan dismissed the appeal. On 19 August 2022, he refused permission to appeal.

On 27 March 2023, Snowden LJ granted permission to appeal to this Court on two grounds, which he summarised as follows:

The appellant has been represented before us by Mr Susheel Bellara of counsel, who also appeared for him in the UT and indeed the FTT. The Secretary of State has been represented by Mr Colin Thomann of counsel, although in the UT she was represented by a senior presenting officer.

I need not recapitulate the history of the TOEIC litigation, which has generated a great deal of case law. The correct approach for a tribunal which has to determine whether an applicant for leave to remain used a proxy in the spoken English part of the ETS test was most recently set out by a panel of the UT comprising the President, Lane J, and the Vice President, Mr Mark Ockelton, in DK and RK, being the decision referred to in ground 1. It carried out a careful review of the evidence about both the reliability of the method by which ETS determined particular results to be invalid and of its system for matching results to individual candidates (the so-called chain of custody). It also noted the evidence that some ETS test centres were "fraud factories", where organised cheating was widespread, if not universal. One of those centres was NLC, where the appellant took his test. The organisers at NLC had been convicted of conspiracy to facilitate breaches of immigration law, and the UT quotes extensively from the judge's sentencing remarks. At paragraphs 119 to 125 of its reasons the panel examined what it called two strands of the evidence about such fraud factories. At paragraphs 126 to 129, under the heading "General Conclusions", it said:

Turning to the present case, the Secretary of State's case in the UT that the appellant had cheated in taking the TOEIC test was based partly on the evidence of the ETS audit results and look-up tool but also on the fact that NLC was established in DK and RK to have been a fraud factory. More particularly, the evidence showed that in 12 of the 16 spoken English tests taken at NLC on 18 July 2012, including the appellant's, a proxy had been used, with the tests in the remaining four cases being "questionable". Likewise, over the period between March 2012 and May 2013, 74% of TOEIC speaking and writing tests were found to be invalid, with the remainder being questionable. The presenting officer also submitted that the appellant's failure to ask ETS for a copy of the tape of his test was indicative of guilt; but, to anticipate, that was a matter to which the judge said he did not intend to attach weight in his decision.

The appellant's evidence in rebuttal consisted of a witness statement, initially prepared for the FTT hearing but used again in the UT, in which he asserted in terms that he took every component of the test himself and that he was deeply aggrieved and upset by the allegation that he had cheated. He said that he had no motive to cheat, because his level of spoken English was always very good, referring among other things to the fact that he had been educated in English in India and that he had had to demonstrate proficiency in English when he applied for his student visa. He also referred to the fact that he had to use English in his business, but that of course was a business which had not been started at the time that he took his test because it was dependent on the grant of his visa.

The appellant gave oral evidence to the UT confirming the contents of his statement and was cross-examined by the presenting officer. We have been supplied with the appellant’s solicitor's note of his evidence, which Mr Thomann confirmed was agreed as far as it went. Though it is by no means a perfect note, it is sufficient to make the points which Mr Bellara sought to draw from it. It shows that the appellant amplified his witness statement to a limited extent, among other things by referring to the test which he used for the purpose of his initial application for admission as a student, which was a so-called IELTS test taken in 2009. On that test he scored 5.5, which corresponds, to quote from the official notes, to what is described as being a “modest user” who “… has partial command of the language, coping with overall meaning in most situations, though is likely to make many mistakes … should be able to have basic communication in his own field.”

The judge gave a full and careful summary of both parties' evidence at paragraphs 14 to 18 and 19 to 27 of his reasons respectively, and of their submissions at paragraphs 28 to 35. His analysis and conclusions appear at paragraphs 36 to 45. He begins by referring to the approach to the burden of proof established in DK and RK. In that connection, he notes that Mr Bellara conceded that the Secretary of State had a strong prima facie case. That concession was in truth inevitable in view of the passage from the judgment in DK and RK which I have already quoted.

The judge then goes on at paragraph 37 to say:

At paragraphs 38 to 41 the judge summarises in very broad terms the background to the TOEIC cases and the conclusions in DK and RK. At paragraph 42 he summarises the evidence supporting the Secretary of State's case that the appellant was guilty of fraud, namely both the result of the ETS audit in his own case and the pattern of cheating at NLC. He continues at paragraphs 42 to 45 as follows:

I have already quoted the grounds on which Snowden LJ gave permission to appeal. As developed by Mr Bellara in his skeleton argument and more particularly in his oral submissions before us, ground 1 can be summarised as follows. It is clear from paragraph 127 of the judgment in DK and RK that the strong prima facie case established by the generic evidence can be rebutted by "credible evidence" adduced by the applicant. The appellant in this case had given clear and explicit evidence both in his witness statement, and more importantly, in his oral evidence asserting that he had taken the test himself. That evidence had been consistent, both in the original hearing in the FTT and in the UT, and had not been shaken in cross-examination. The judge had not in his reasons addressed that evidence with any specificity or said why he rejected it. In the absence of reasons for rejecting it, the judge should in fact have found that it was sufficient to discharge the evidential burden of proof resulting from the generic evidence; or, even if that were not the case, the appeal should still be allowed for inadequacy of reasons.

I cannot accept that submission, which does not fairly reflect the approach taken by the judge. He was entitled to, and did, take as his starting-point in paragraph 42 both the fact that the appellant's result was found to be invalid by ETS – that is, on the basis that the voice was that of a proxy – and the fact that NLC was an established fraud factory. Those findings, as the UT makes clear in DK and RK, make it not only probable but highly probable that he had in fact cheated. He was nevertheless obliged to consider the appellant's evidence to the contrary. He recognised that and considered it fully at paragraph 43, focusing on the main point which had been made before him by Mr Bellara related to the standard of the appellant's English. But it is one thing to say that the appellant’s evidence had to be considered; it is another to say that it was obliged to be accepted. It was the judge's task to decide whether that evidence outweighed the effect of the generic evidence; and the message of DK and RK is that a mere denial is very unlikely to do so.

Mr Bellara says that the appellant's evidence amounted to more than a mere denial, but except in the most literal sense I cannot accept that. It is true that he adds a few details to his account of having taken the test himself - about how he chose NLC as the college to take his test, how he travelled there, and the numbers of people present and the like. He also (a point to which I will return) gives evidence about his proficiency in English. But none of that very limited amplification of the bare assertion that he took the test was capable of casting serious doubt on the reliability of the results. The fact that the oral evidence was given consistently and with apparent conviction, and thus was credible if viewed in isolation, is not enough. The question for the judge was whether it was sufficient to discharge the evidential burden of proof created by the generic evidence, and he was fully entitled to reach the conclusion that it did not.

As regards the evidence about the appellant's standard of English at the time that he took the test, which is the subject of ground 2, I can see nothing wrong with the judge's reasoning in paragraph 43 and, certainly nothing amounting to an error of law with which the court could interfere. Mr Bellara effectively acknowledged that this was very much a secondary point in his grounds of appeal, as Snowden LJ had already observed.

One other point which was initially relied on by Mr Bellara was that there was no evidence to support the judge's finding at the end of paragraph 44 that all the tests taken at the NLC on 8 July 2012 were fraudulent. It is not clear to me that by the end of his oral submissions Mr Bellara was persisting in this point, but in any event I do not accept it. It was a finding which the judge was fully entitled to make on the basis of the evidence that 12 out of the 16 results were invalid, and the remaining four were questionable.

Finally, and very much as a footnote, I should note that Mr Thomann drew attention to what he said was a typographical error in paragraph 100 of the judgment in DK and RK, where the figure of 80 in the eighth line of the paragraph should, he says, be 18. The paragraph in question relates to Mr Thomann's own cross-examination in that case, so he is in a good position to help on this. I only mention this because in his written submissions Mr Bellara had sought to make a point about the difference between the numbers being tested in RK's case and the numbers in the present case, though that was not in fact a point that he adopted in his oral submissions. I find it hard to see how the error in question could be relevant in another case, but out of abundance of caution I am happy to record what Mr Thomann told us.

For those reasons, I would dismiss this appeal.

I agree. It seems to me that the judge dealt fully and fairly with the evidence, as my Lord has said, and that any attempt by this court to go behind that evidence would be contrary to principle, see in particular paragraphs 114 to 115 of FAGE v Chobani [2014] EWCA Civ 5, and Volpi & Delta Ltd v Volpi [2021] EWCA Civ 464, in particular paragraph 2.

I agree with both judgments.