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Lead ETS/TOEIC deception appeals allowed in the Upper Tribunal

On 23 March 2016, the Upper Tribunal allowed ‘without hesitation’, two lead ETS/TOEIC deception appeals.

The Tribunal carefully scrutinised the evidence relied on by the Secretary of State for the Home Department and that relied on by the Appellants, an assessment which the judges in the judicial review cases of R (Gazi) v Secretary of State for the Home Department (ETS – judicial review) [2015] UKUT 00327 (IAC)  and R (Mehmood and Anor) v The Secretary of State for the Home Department [2015] EWCA Civ 744 were unable to undertake. The key question was whether the Secretary of State had proved that deception had been used in the procurement of TOIEC certificates to the requisite standard. The Upper Tribunal concluded that the Secretary of State had not discharged the legal burden of proof and found the Appellants to be “clear winners”.

President of the Upper Tribunal, the Honourable Mr Justice McCloskey allowed the appeals of the two Appellants for the following reasons:

  • The hearsay evidence of Ms Collings and Mr Millington, the two main witnesses relied on by the Secretary of State was inherently limited in that neither of these witnesses possessed any relevant qualifications, credentials or expertise in what is ultimately a scientific field – namely, voice recognition technology and techniques;
  • There was no evidence from ETS;
  • The evidence from expert Dr. Harrison was persuasive and remained unchallenged by the Secretary of State;
  • The Appellant’s themselves were found to be truthful.



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