Abbas, R (On the Application Of) v Secretary of State for the Home Department

The Claimant is a citizen of Pakistan. In May 2011 he was granted leave to enter the UK as a Tier 4 General Student. The course in respect of which leave was granted was ESOL (English for speakers of other languages) at the Learning and Skills Academy in Luton. The course apparently ran for a year and concluded at the end of April 2012. Whilst he was undertaking the course he met a woman named Sofia Damji. She was a British citizen. They developed a relationship. In January 2012 they were married in a religious ceremony. On 9 March 2012 a civil ceremony took place at which point the Claimant became the spouse of a British citizen.

The Claimant decided to change his immigration status to that of spouse of a British citizen. Although his leave to remain pursuant to his student visa did not expire until August 2012 he took immediate steps to obtain leave to remain as the spouse of a British citizen. As part of the process he provided a certificate indicating that he had undertaken a TOEIC test (Test of English for International Communication). Although it is not stated on the face of the certificate, it is known that it resulted from a test said to have taken place at an institution called Thames Education Centre. Such leave was granted in May 2012 for a period of two years. In 2014 he applied for indefinite leave to remain on the basis that he had completed a period of two years as the spouse of a British citizen. Indefinite leave to remain was granted on 2 September 2014. Following that in May 2015 the Claimant applied for naturalisation as a British citizen.

On 23 September 2015 the Secretary of State for the Home Department revoked the grant of indefinite leave to remain which had been granted in September 2014. She purported to exercise her power under Section 76(2) of the Nationality Immigration and Asylum Act 2012 i.e. on the ground that the Claimant had used deception to obtain his indefinite leave to remain. The deception alleged was the use of a fraudulently obtained TOEIC certificate when applying in 2012 for leave to remain. At that point the application for naturalisation was outstanding. On 13 October 2015 this application was refused because the Secretary of State considered that the Claimant did not satisfy the requirement of good character. She reached that view on the basis that he had obtained and used a TOEIC certificate fraudulently in 2012.

The Claimant now applies for judicial review of both decisions. His case is that the TOEIC certificate in question was not fraudulent so the Secretary of State was wrong in revoking his indefinite leave to remain and in refusing his application for naturalisation. The Secretary of State maintains that her determination was factually sound. There is an issue as to the interpretation of Section 76(2) of the 2002 Act to which I shall return. However, the principle issue is one of fact.

This is the latest in a long line of cases arising from action taken by the Secretary of State in the wake of a BBC “Panorama” programme broadcast in February 2014. That programme revealed that there had been widespread fraud in the taking of language tests provided by an entity called Educational Testing Services (ETS), a non-profit organisation based in the United States. The fraud principally consisted of the taking of tests by a person other than the person named on the certificate as subsequently issued. Following the programme ETS reviewed all of the tests taken at centres in the UK. The conclusion of the review process was that many thousands of tests had been taken by someone other than the person named on the certificate. ETS provided the results of its review to the Secretary of State. The Claimant’s test was one of those identified as fraudulent by ETS. So it was that the Secretary of State made the two decisions now under challenge.

I have been referred to and considered the following authorities:

It is agreed that the relevant principles to be applied are as follows:

The Secretary of State adduced evidence from Peter Millington, Rebecca Collings and Adam Sewell, all civil servants within her department. She also adduced evidence from Professor Peter French, the pre-eminent expert in the UK on speaker identification. Mr Sewell gave oral evidence and was cross-examined. The Claimant gave evidence and was cross-examined. He also adduced evidence from Dr Philip Harrison, an expert on speaker identification.

The TOEIC test as administered by ETS involved two separate sessions. The first was a speaking and writing test. It was computer delivered and included digital recording of the candidate’s voice. The test in due course was marked by a person. The second session involved a listening and reading test which was paper based and was scored by machine. The TOEIC test was accepted and used by the Secretary of State between April 2011 and March 2014 for the purpose of assessing applications for leave to enter or remain in the UK.

ETS did not have its own test centres. Rather, it had a network of third party suppliers and quasi-educational institutions around the world. There were and are many such suppliers and institutions in the UK. One such was Thames Education Centre. After the Panorama programme the review conducted by ETS was in two stages. First, all voice tests from UK test centres were assessed by voice recognition technology. These assessments led to a very large number of tests being considered to be suspect. Second, all suspect tests were analysed by ETS staff trained in voice recognition analysis. Every suspect test was analysed by two ETS staff acting independently. Only if both analysts confirmed that the test was an example of an individual having taken tests in place of many candidates was the test deemed to be invalid.

The expert evidence is that voice recognition software cannot be compared with the kind of analysis which a voice recognition expert would carry out if a voice sample were in issue. One indication of the validity of that evidence is the proportion of tests which were flagged as suspect by the voice recognition technology being verified as invalid by the human analysts. Of the 58,464 tests flagged as suspect by the voice recognition software, 33,735 were deemed invalid after human analysis. Further, the training given to ETS staff was modest in comparison to the training and experience of an expert such as Professor French or one of his colleagues. This was bound to reduce the weight of the conclusions reached by ETS staff. Dr Harrison’s view was that it was impossible to assess the reliability of the results of the ETS review and that he could not assess the potential number of cases in which a test wrongly had been declared invalid. Professor French, whose report was prepared after further information had been forthcoming from ETS, concluded that the overall number of what he called false positives was likely to be modest i.e. less than 1% of the overall number of results.

In the judgment of the Upper Tribunal in Majumder and Qadir the effect of Dr Harrison’s evidence was subjected to close analysis. The Upper Tribunal concluded that this evidence reduced very significantly the probative effect of ETS having declared a particular test as being invalid. However, the Upper Tribunal noted that in subsequent cases the fact finding tribunal might be provided with further evidence which could introduce a fresh ingredient. The evidence of Professor French, who had more information about the ETS methodology available to him, is a fresh ingredient. Mr Malik invited me to give little weight to this evidence since Professor French had not been called to give live evidence. I decline that invitation. No particulars were advanced of the apparent weaknesses in Professor French’s approach which would have laid his evidence open to attack. Professor French does not suggest that the conclusion of the ETS review in any particular case is correct nor does he suggest that a specified degree of certainty can be attached to any individual finding of test invalidity. Mr Colin Thomann appearing for the Secretary of State conceded that in the context of my fact finding exercise the expert evidence could not be determinative any more than could be the notification of invalidity in respect of the Claimant’s test by ETS. Rather, he argued that the evidence of Dr Harrison supplemented by that of Professor French is the backdrop against which the significance and weight of the notification relating to the Claimant should be judged. I am satisfied that this is a proper approach. Moreover, the evidence of Professor French in particular allows real weight to be given to the result of the ETS review in the Claimant’s case.

Mr Sewell’s evidence also was given as an expert as was conceded by Mr Malik. Mr Sewell’s expertise is in statistical analysis. He was able to provide a view as to the statistical significance of notifications of invalidity, both in respect of the session said to have been attended by the Claimant and in relation to all tests said to have been conducted at Thames Education Centre. The point is made by Mr Malik that Mr Sewell was wholly reliant on the data supplied to him by ETS for his conclusions and that Mr Sewell had no means of verifying the reliability of the data. That proposition is correct but it does not take Mr Malik very far in any effective attack on the foundation of Mr Sewell’s conclusions. The evidence of Mr Millington and Ms Collings may have been criticised in other cases heard by the Upper Tribunal. That criticism did not extend to the substance of their evidence about the raw data provided by ETS. I am satisfied that Mr Sewell’s reliance on the data for statistical purposes is justified.

Between December 2011 and May 2013 Thames Education Centre submitted 1,293 speaking tests to ETS. In its review ETS did not validate a single one of those 1,293 tests. Taken at its lowest the evidence shows that the tools used in the ETS review were reasonably successful in identifying fraudulent tests. Thus, Mr Sewell was able to state with some confidence that the available figures tend to show that Thames Education Centre was a fraudulent institution. In relation to the speaking test on 21 March 2012, the day on which the Claimant is said to have attended Thames Education Centre, Mr Sewell was provided with the reference numbers of those who were given test results on that day. ETS records showed that 24 tests were said to have been conducted in the session which commenced at 10.10 a.m. Of those, 6 were deemed to be questionable. All of the others were rejected outright as being invalid. Mr Sewell could not draw any statistical conclusion from the range of scores initially given to the 24 so-called candidates because the potential score range was not wide enough to permit any proper statistical analysis. Equally, it is of evidential significance that there were no apparently genuine candidates on the day in question. In relation to the listening and reading test on 26 March 2012 at which the Claimant is said to have been present, Mr Sewell said that ETS records showed 35 candidates to have attended at the 10.10 a.m. session. ETS carried out no ex post facto validation of this part of the process. It had no means of doing so since it was a paper exercise. In relation to this session, Mr Sewell was able to provide a statistical view. The test is scored at intervals of 5 from 5 to 495 i.e. 99 scoring intervals. In a genuine TOEIC test of a group of people, one would expect to see a bell curve distribution with the majority of candidates scoring somewhere in the middle. In the case of the session relating to the Claimant, there were two statistical anomalies. First, the results were heavily weighted towards to the higher end of the scoring range with no scores at all in the mid or lower range. Second, there were significant batches of results showing exactly the same score. Mr Sewell concluded that such anomalies were not consistent with the results of TOEIC tests taken by a group under true test conditions. He reached that view after consideration of data from other test centres including those at which there was no suggestion of fraudulent conduct.

Mr Sewell at some point in 2016 considered the position of Thames Education Centre as a whole and produced an overarching report for the purposes of the Crown Prosecution Service. It appears that prosecution of those involved with the Centre was being contemplated. In the event no prosecution took place. Mr Sewell was unable to say why or precisely when a decision not to prosecute was made. Mr Malik suggested that I could and should use the CPS decision not to prosecute as a basis for concluding that Mr Sewell’s evidence was unreliable. I reject that proposition unreservedly. The opinion of a Crown Prosecutor as to the value of a witness’s evidence is of no relevance to my consideration of a witness I have seen and heard myself. In any event, I have no evidence at all as to why Thames Education Centre was not prosecuted. I do not know who was involved in running the centre or what evidence there was to implicate such individuals in fraud. It is one thing to say that an institution is a cover for fraud. It is quite another to be able to fix a particular person with knowledge of or involvement in the fraud.

Overall I conclude that Mr Sewell’s evidence provides significant circumstantial support for the proposition that anyone who supposedly took the TOEIC test at Thames Education Centre on 21 and 26 March 2012 was party to a fraud. As Mr Thomann put it, it would be an odd state of affairs if the Claimant had been the only genuine candidate on those days.

If I had had only the evidence called by the Secretary of State, I would have been able to conclude on a balance of probabilities that the Claimant was party to the provision of a fraudulent TOEIC certificate in 2012 i.e. the circumstantial case would have been quite sufficient to meet the legal burden of proof which rests on her.

What then of the Claimant’s evidence? Mr Malik offered the view that it was “not great”. I would go rather further than that. In my judgment the Claimant’s evidence was in general wholly unconvincing and at some points demonstrably false. He had made two witness statements prior to the hearing. The first was dated 7 October 2015. It was brief and simply stated that the Claimant had attended Thames Education Centre on the date in question and that he had taken the test himself without any deception being involved. His second statement was dated 16 December 2016 and gave a much fuller account of the events of 2012. It was in relation to material in that statement on which he was cross-examined.

The Claimant said that, immediately after his civil marriage in March 2012, he went to a firm of solicitors to discuss an application for leave to remain. He said that he wanted to submit an application as soon as possible. When he was told that he would need to take a TOEIC test, he set about trying to find a test centre. At this time the Claimant was based in Hounslow and he enquired with test centres there. This was on 13 March 2012. He discovered that he would have to wait 2 to 3 weeks for a test. Because the matter was urgent, he tried further afield which is how he came to find Thames Education Centre which could accommodate him just over a week later. According to the Claimant the premises of the Centre were in East London near Whitechapel station. The need for this urgency was not apparent from his witness statement. When first asked in cross-examination what the hurry was, the Claimant said that his visa was going to expire. It then was pointed out to him that his leave to remain would not have expired until August 2012. The Claimant then said that his new wife wanted to go to Pakistan and his ESOL course was about to conclude which would allow him to travel with her. As it turned out the trip to Pakistan did not take place till May or June 2014 and in any event his ESOL course did not finish until 30 April 2012. No satisfactory explanation ever was forthcoming as to why there was any need for such urgency. On his own evidence he could have attended a test centre close to his home within 3 weeks. He never explained why bringing the test forward by around 10 days was so vital. I conclude that the claim that matters were urgent was made to try and explain the failure to use a test centre close to home and the requirement to go to a centre which was geographically inconvenient.

The Claimant’s evidence was that he paid the fee due to the Thames Education Centre in cash. He said that on 13 March 2012 travelled to East London – apparently a journey of around an hour and three quarters – in order to make this payment. In his witness statement he gave a convoluted (if not impenetrable) explanation of why this was done, namely

“… my wife informed me that we have to deposit money into the bank and I couldn’t make a card payment, so I decided to call (the Centre) to see if it was possible to make a cash payment in person…”

In his oral evidence the Claimant said that his wife had said that it would be better to pay cash. The apparent contradiction involved was never explained. One obvious reason to pay cash in the context of an English language test which otherwise would seem to be a legitimate exercise is if the test is to be conducted fraudulently. A hallmark of any criminal transaction is the use of cash to prevent any tracing of those participating in the transaction. Mr Malik argued that this feature could not be considered in the absence of specific evidence that cash payments were the general practice where the test was bogus. I do not agree with that argument. Payment in cash is not a determinative feature of the fraudulent transaction of whatever ilk but it is consistent with criminality.

The Claimant in his witness statement gave a very detailed account of what happened when he arrived at the Centre. It involved a description of the minutiae of conversations he had with the receptionist and another candidate. It will be recalled that this witness statement was dated nearly 5 years after the event. The Claimant was asked how he was able to remember this kind of detail so many months and years later. He had no coherent answer to this question. His statement was to the effect that he could not remember anything of the questions in the tests themselves. When asked why he could not recall the content of the tests when his memory of other aspects of his visit to the Centre was so vivid, the Claimant said that he had already taken other English tests in the UK prior to this one which is why he could not recall the questions posed in March 2012. It was then established that the tests in March 2012 were the first English tests he had taken in the UK. The Claimant then had no answer to the question posed. Mr Malik submitted that it was not surprising that the Claimant could not recall the questions in the test since it was all so long ago. That submission would have some force had it not been for the Claimant coming up with such detail about other aspects of the supposed visit. The vivid account given in his witness statement has every appearance of being pure invention.

The last matter on which the Claimant was tested in cross-examination was why he had not pursued the option of obtaining the recording of his speaking test. On 2 November 2016 the Government Legal Department confirmed to the Claimant’s solicitors that they did not hold the recording but that it was available from ETS via that organisations’ London solicitors. No steps were taken by the Claimant to obtain the recording. The Claimant was cross-examined on this issue. The cross-examination was not excessive but at least two attempts were made by Mr Thomann to obtain a clear account as to why the Claimant had not obtained the recording. Mr Malik re-examined on the point. Two themes emerged though it would be wrong to say that either did so with any consistency or clarity. First, the Claimant appeared to be saying that he had no faith in ETS returning the correct recording to him. He said that he had found cases on the internet in the Upper Tribunal where it was not the right recording. It may be that he was referring to three linked cases considered by the Upper Tribunal: MA (promulgated in September 2016), Mohibullah (promulgated in December 2016) and Saha (finally decided in January 2017). In each of those cases the relevant recording had been retrieved and in each case it was accepted that the voice was not that of the relevant applicant. In the only case where any live issue arose as to whether the right recording had been returned (MA) the applicant’s case was dismissed. Whether that the Claimant was referring to those cases or some other line of authority, it provided no explanation for his complete failure to take up the offer of the Government Legal Department. The second suggestion made by the Claimant was that he had no money. That may be true but it would have been of no relevance in the first step i.e. obtaining the recording, a step which would have involved no cost. Mr Malik attempted in re-examination to obtain some clarity on this point. It was not his fault that he failed completely in this attempt.

The Claimant had no sensible explanation for his failure to obtain the voice recording. Mr Malik made the point that it is not for the Claimant to prove his case and that the Secretary of State could also have obtained the recording. That would have not have got her very far in the absence of a sample of the Claimant’s voice with which to compare it. Be that as it may, the point arising from all of this is that the Claimant purported to give explanations for his actions which were patently untrue and/or efforts at obfuscation.

It is on the analysis of what the Claimant said (as opposed to how he said it) that I conclude that his evidence is unworthy of belief on the critical factual issues in the case i.e. whether he undertook a legitimate TOEIC test and whether he engaged in deliberate deception in submitting the TOEIC certificate in support of his 2012 application. I should also say that the way in which the Claimant gave evidence was profoundly unimpressive. One must make allowance for the stress of giving evidence in the High Court and for the unfamiliarity of the surroundings so far as the Claimant was concerned. Even allowing for that his use of the English language and his understanding of the questions put to him was completely at odds with the picture supposedly painted by his various test achievements.

Mr Malik pointed to the criteria identified by the Upper Tribunal in Qadir [2016] UKUT 229 (IAC) as the factors to be considered when assessing whether the Secretary of State has discharged her legal burden in any given case. He pointed out that the Secretary of State had not addressed the criteria in argument, his suggestion being that the criteria in fact fell to be assessed in the Claimant’s favour. However, Mr Malik also concedes that every case of this kind is to be determined on its own facts. I have considered the relevant evidence in this case as set out above. At no point does the Claimant or his case emerge with any credit.

Mr Malik invited me to conclude that the Claimant had nothing to gain from engaging in a fraudulent exercise given his apparent skills and that he had no need to cheat or engage in deceit. That invitation would carry more force if the Claimant had not been so unimpressive when giving evidence. In any event it will be difficult if not impossible for a fact finding tribunal (whether in my position or that of the First Tier Tribunal) to reach clear conclusions as to motive. As the Upper Tribunal observed in MA (supra) there may be many reasons why even someone proficient in English may engage in TOEIC fraud. The crucial issue is whether the evidence in a particular case proves to the necessary standard that the individual concerned has knowingly provided a fraudulent TOEIC certificate. In this case the evidence quite clearly does just that.

That means that in respect of the factual circumstances the Secretary of State was wholly entitled to reach the decisions she did. That part of the Claimant’s case must fail.

In relation to the refusal to grant naturalisation that is an end of the matter. Given the facts as I have found them to be, the Claimant was not of good character. His application for naturalisation was properly refused. In relation to the revocation of indefinite leave to remain, Mr Malik argued that the Secretary of State’s power to revoke such leave depended upon deception having been used directly when the application was made for indefinite leave to remain. He relied on the words of the statutory power.

As already indicated the Secretary of State exercised the power provided in Section 76(2) of the 2002 Act which is in these terms:

Mr Malik argued that “the leave” in Section 76(2) was the leave obtained in 2014. No fraudulent document was relied on when application was made for that leave. He submitted that, if the use of a fraudulent TOEIC certificate in an earlier application was intended by Parliament to be capable of being treated as relevant deception by the Secretary of State, the sub-section would have included the words “or any previous leave” after the word “leave”. He pointed to the wording of Rule 322(2) of the Immigration Rules as support for this submission i.e. the use of the words “or a previous variation of leave” in one of the grounds for the Secretary of State to refuse leave to remain or variation of leave to enter. The fact that those words were in the Rules showed that express words were needed to allow the Secretary of State to rely on some previous or earlier deception.

Mr Thomann accepted that the words of Section 76(2) require an effective deception to be exercised when the indefinite leave to remain was obtained. His submission was that one part of the application for indefinite leave to remain was the fact that the Claimant had been resident lawfully in the UK for 2 years (as the spouse of a British citizen). This was a “necessary building block” (to use Mr Thomann’s phrase) of his application. Since the leave obtained in 2012 had been obtained by use of a fraudulent TOEIC certificate, the condition precedent for the application in 2014 was only satisfied due to deception. Mr Thomann’s alternative submission was that it was implicit in the 2014 application that the earlier grant of leave to remain had been obtained lawfully. He relied on the unreported decision of the Court of Appeal in Durojaiye v SSHD (13 June 1990). In that case D in 1987 had obtained leave to remain as a student by deception, namely lies about the extent of his attendance at a particular college. In January 1988 he had returned to the UK from a holiday abroad. An immigration officer at the airport at which he arrived renewed his leave to enter on the basis of the stamp in his passport reflecting his earlier grant of leave. Some two months later he was seen by an immigration officer who served him with a notice stating that he was an illegal entrant. Judicial review of the decision to serve of that notice was refused. The Secretary of State’s case was that leave to enter on return from the holiday had been obtained by deception. The Court of Appeal upheld that proposition on the basis that D had exercised a deception in January 1988 in that he had asserted by his conduct and by implication that he had been granted leave to enter as a student validly on the occasion to which the stamp in his passport referred.

The requirement in Rule 287 of the Immigration Rules in relation to indefinite leave to remain is for an applicant to have been given an extension of stay for a period of 2 years in accordance with paragraphs 281 to 286 of the Rules. The Claimant had been given such an extension of stay. That was something within the knowledge of the Secretary of State. The mere fact that the “necessary building block” of the 2014 application had been obtained by deception does not mean that the leave obtained in 2014 was obtained by deception. Section 76(2) requires the indefinite leave to remain to have been obtained by deception for the Secretary of State’s power to revoke to be operative. That is, the deception must be part of the application for indefinite leave to remain. It follows that I reject the first limb of Mr Thomann’s submission in relation to the ambit of Section 76(2) of the 2002 Act.

However, the ordinary meaning of the word “deception” does not require some direct fraudulent act at the point at which it has its effect. When the Claimant applied for indefinite leave to remain, it was implicit in his application that the two year period of residence on which he relied was lawful. He asserted by implication that he satisfied all of the necessary criteria under Rule 287. In the light of my findings in relation to the TOEIC certificate from 2012, that implicit assertion was false. The Claimant thereby obtained his indefinite leave to remain by deception. Mr Malik argued that the judgment in Durojaive (supra) related to a different statutory provision so that the conclusion in that case could not be read over to Section 76(2). The fact that Durojaive concerned a different provision does not affect the general principle enunciated in that case. It is akin to the principles which were applied to the offences of obtaining property or a pecuniary advantage by deception prior to their abolition by the Fraud Act 2006 as set out in DPP vRay [1974] AC 370. The principle must apply equally to the use of the word “deception” within the 2002 Act.

It follows that the indefinite leave to remain was obtained by deception as required by Section 76(2) of the 2002 Act. Taken in conjunction with my findings of fact in relation to the TOEIC certificate, this claim for judicial review must be dismissed.