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ETS / TOEIC - MA (ETS – TOEIC testing) [2016] UKUT 00450

MA (ETS – TOEIC testing) [2016] UKUT 00450 is the latest case in the string of cases involving those who have had their leave to remain or enter, refused, curtailed, or cancelled. This is generally done on the ground that, based on information from ETS, the Secretary of State for the Home Department (“SSHD”) had significant evidence to conclude that the test certificate was fraudulently obtained by the use of a proxy test-taker.

MA was a statutory appeal from the First-tier Tribunal, joined with two Judicial Review cases. The latter cases should receive a separate determination in due course, although whether they would be reported or not is unclear.

Whilst MA was a highly fact-sensitive case and does little to develop legal principles in this sphere, it sheds very helpful light on the ETS’s and SSHD’s process in identifying proxy-test takers. Further, MA is the first reported decision in which a voice recording, together with various other materials such as the ETS test centre administration manuals, was adduced. ETS appears to have provided some assistance in this case, stark contrast to SM and Qadir (ETS – Evidence – Burden of Proof) [2016] UKUT 229, where the Upper Tribunal observed that it was “mildly astonishing” that ETS had refused to provide voice recordings for the Appellants involved.

From the outset, it should be noted that the appeal went against MA. The reason is clear: he was not able to satisfy the Tribunal that he was giving a truthful account. In other words, the Tribunal held that his explanation did not satisfy the minimum level of plausibility. This may come as a surprise to some, not least given that SM and Qadir held that the evidential burden entailed a “comparatively modest threshold”, one which the SSHD arguably discharged in R (Gazi) v Secretary of State for the Home Department (ETS – Judicial Review) (IJR) [2015] UKUT 327, notwithstanding the trenchant criticism by the Upper Tribunal regarding the generic evidence relied upon by the SSHD or in SM and Qadir where the SSHD had “by an admittedly narrow margin” discharged the evidential burden, again, notwithstanding the sharp criticism raised against the SSHD’s evidence.

What MA makes clear is that, in a statutory appeal context, practitioners and individuals should prepare their case just like any other case involving an allegation of deception. It is an evidential battle. One should ensure to adduce cogent evidence, including consistent and detailed witness statements, voluminous supporting evidence such as train/tube tickets to the test centre, statements from friends who may have taken the test on the same occasion, receipts of any study materials in preparation of the test, as well as evidence of strong command of the English language prior to taking the test (such as the IELTS certificate relied on to enter the UK).

Matters are less clear when there is no right of appeal, in-country or out-of-country, against a ETS/TOEIC decision. In these circumstances, Judicial Review is the only available remedy. In the post-2014 Act world, increasing number of cases are in this category. Regrettably, there is yet to be a reported decision which deals with an ETS/TOEIC case that has no right of appeal. The trouble with Judicial Review is that the Tribunal takes a supervisory role, where the Appellant does not usually have the opportunity to give evidence or to test the evidence that is held against him/her. This aspect of litigation is vital to a fact-sensitive field of immigration law.

For this precise reason, an analysis of the string of ETS/TOEIC cases, most of which heard by Mr Justice McCloskey, reveals the Upper Tribunal’s strong view that Judicial Review is not the best vehicle to deal with ETS/TOEIC.

In (R) Gazi, the headnote summarises the Upper Tribunal’s observations at [36] – [37] of the determination:

“A challenge to the strength and quality of the evidence underpinning the Secretary of State’s decision … on the ground of fraud in procuring a TOEIC English language qualification is best suited to the fact finding forum of the First-tier Tribunal and is unsuitable for determination by an application for judicial review.”

In SM & Qadir it was again observed:

“We take this opportunity to re-emphasise that every case belonging to the ETS/TOEIC stable will invariably be fact sensitive. … Furthermore, the hearing of these appeals has demonstrated beyond peradventure that judicial review is an entirely unsatisfactory litigation vehicle for the determination of disputes of this kind.”

The Upper Tribunal, in the headnotes of MA, re-iterated the intensely fact-sensitive nature of ETS/TOEIC cases:

“The question of whether a person engaged in fraud in procuring a TOEIC English language proficiency qualification will invariably be intrinsically fact sensitive.”

Perhaps the Upper Tribunal’s evident displeasure with having to evaluate an acutely fact-sensitive issue as a supervisory body sets the scene for the below interlocutory decision (Appendix 2 Ruling No. 2) in MA. In agreeing to receive oral evidence in a Judicial Review case, the Upper Tribunal held the following:

“(5) The reception of oral evidence in judicial review is undoubtedly a comparatively unusual occurrence just as an application for permission to cross-examine any party or witness equally is. These are, however, unusual proceedings. Furthermore, as a matter of general principle it may be said that in the contemporary world of judicial review the reception of oral evidence and the phenomenon of cross-examination are likely to be approached a little more flexibly than they would have been during a previous era.”

There is scope, therefore, that future Judicial Review cases involving ETS/TOEIC deception would be less apprehensive to the notion of receiving oral evidence in determining whether deception had on balance taken place. This would be a welcome change in culture and practice so as to remedy the serious procedural lacuna in dealing with cases of this nature.


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