England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)

		Royal Courts of Justice Strand London, WC2A 2LL
		25 October 2016

LORD JUSTICE BEATSON:

1. This appeal by the Secretary of State from the determination of the Upper Tribunal (Immigration and Asylum Chamber) (hereafter "UT") in the case of SM and Qadir (ETS - Evidence - Burden of Proof) [2016] UKUT 229 (IAC), promulgated on 21 April 2016 by McCloskey J, President of the IAC, and Deputy Upper Tribunal Judge Saini, was listed to be heard today and tomorrow. Last Thursday, three working days before the start of the hearing, the Civil Appeals Office was notified that the Secretary of State and the first respondent, Sharif Ahmed Majumder, whose name should not be anonymised, had agreed that the appeal should be dismissed without determination of the merits (ie without the court giving a judgment) and that the Secretary of State should pay the respondents' costs. It was also stated that the second respondent, Mr Ihsan Qadir, was likely to agree to this disposal. A draft order and schedule of reasons, both unsigned, were provided to the court, following several requests, on Friday afternoon.
2. At the conclusion of the hearing this morning, the court indicated that, subject to modifications to the recitals to the order, it was agreed, but that the court would give short judgments. The remainder of this judgment contains my reasons for this decision and my understanding of what the Secretary of State, through her counsel Mr Kovats QC, has undertaken to do.
3. This is one of a very large number of cases that have been brought as a result of a cancellation by the Secretary of State of leave granted to those, like the respondents, whom she claimed had used deception in their English language tests. The problem came to light as a result of a Panorama programme in February 2014, which claimed that widespread fraud had been used in tests set and administered remotely via computer by Educational Testing Services (hereafter "ETS"), an American company, to obtain a Test of English for International Communication (hereafter "TOEIC") certificate, in particular by the use of proxies to take the oral tests. A TOEIC certificate is required in order for a person to be credited with the necessary points under the Immigration Rules.
4. The challenges had been made on a number of grounds, but the great majority are to the evidence relied on by the Secretary of State to prove that English language qualifications recorded in TOEIC certificates had been obtained by deception and fraud in the taking of the language tests. The problems about evidence have arisen because the Secretary of State has relied on what has been described as "generic evidence" produced by voice recognition software. As explained in evidence by two Home Office civil servants, Ms Collings and Mr Millington, this was said to prove that the TOEIC certificates had been procured by dishonesty. TOEIC-related matters have arisen in a number of decisions of this court, most recently in Secretary of State for the Home Department v Mohammed Shehzad and MD Chowdhury [2016] EWCA Civ 615. In that case, earlier decisions on other aspects of the issues raised are discussed and the background is set out more fully (see [2] to [5] and [11] to [12]). Shehzad and Chowdhury's case concerned whether the generic evidence relied on by the Secretary of State sufficed to discharge the initial evidential burden of proof on her of proving deception in an ETS appeal. This court held that it did (see [26], [28], [43] and [44]).
5. The cases before us today concern whether the evidence relied on by the Secretary of State sufficed to discharge the legal burden of proof in such cases. It also concerns the role of the evidence of the individuals affected as to their proficiency in the English language. We understand that it is the first case to reach this court after a final determination by the UT following a full hearing of all the evidence adduced. There are some 315 cases pending in this court, mostly applications for permission to appeal against decisions of the UT refusing judicial review or permission to apply for judicial review of the Secretary of State's decisions curtailing or cancelling leave. Some of them, however, are against decisions of the UT in statutory appeal cases. In the majority of cases the applicants for permission or the appellants are individual migrants, but in about 40 cases the applicant for permission or the appellant is the Secretary of State.
6. In the light of that background and the potential implications for the other cases, on Friday the court directed that the appeals were to remain in the list today but the time estimate was to be reduced to a day. It required the parties to attend prepared to address it as to whether or why it should dismiss the appeals with consent without engaging in the merits and without a judgment, and to be in a position to argue the appeals in the event it was not prepared to dismiss the appeals summarily. It also directed the Secretary of State to be prepared to address it as to the implications of whatever disposal is adopted in relation to the instant appeals for the many similar cases pending in this court which have been stayed pending hearing of these appeals, whether at the permission stage or the full hearing stage. This, inter alia, included being in a position to identify the various categories of such pending cases with a view to assisting the court as to whether different courses should be taken in relation to different categories. The reason for this was to enable the proper management of the many pending cases in the light of what, from the perspective of the court, appeared to be a volte face by the Secretary of State in this case. As I have stated, this case has been regarded as a test case for the issues concerning the evidence adduced to discharge the Secretary of State's legal burden of proof.
7. I am informed by the Civil Appeals Office that there was a similar case management process following the decision of this court in Pankina [2010] EWCA Civ 719, behind which a significant number of cases were stayed (although a smaller number than those stayed behind these appeals).
8. This morning the court was greatly assisted by Mr Kovats who recognised that there had been delay and inattention to the wider picture in the conduct of these appeals. He apologised for the lateness of the application and the non-compliance with the timetable requirements at, for example, page 1476 of the White Book since notice of the hearing. The court has also been assisted by Mr Stephen Knafler QC, who appeared on behalf of Mr Majumder, and Mr Zane Malik, who appeared on behalf of Mr Qadir.
9. I now deal with the determinations in these two cases and the procedural history. The leave to remain granted to the respondents was cancelled by the Secretary of State in decisions dated 29 July (Mr Majumder) and 14 September (Mr Qadir), both in 2014. The Secretary of State cancelled their leaves on the ground that they had furnished a TOEIC certificate obtained by using deception with their applications for leave. Their appeals to the First-tier Tribunal were dismissed but their appeals to the UT were allowed. I set out a summary of the evidence and the UT's assessment of it later in this judgment. At this stage it suffices to state that the UT held by a narrow margin that it was satisfied that the Secretary of State had discharged the evidential burden that lay on her, so that there was a burden, again an evidential one, on Messrs Majumder and Qadir of raising an innocent explanation. The Tribunal, however, concluded that the evidence relied on by the Secretary of State was insufficient to discharge the legal burden of proof on her of proving that TOEIC certificates were procured by dishonesty and it allowed their appeals.
10. The Secretary of State sought permission to appeal against that determination on six grounds but was granted permission by the UT on only two. They are:

(a) the UT reached perverse findings in relation to the effect of the Secretary of State's generic evidence when taken together with the expert voice recognition evidence adduced on behalf of Messrs Majumder and Qadir; and

(b) the UT failed to have any or adequate regard to the quality of Messrs Majumder and Qadir's English when concluding that neither of them had cheated.

11. In view of the position recently taken by the Secretary of State, it is not necessary to summarise the grounds on which permission was not given. It was agreed by all concerned that there should be expedition, and until last Thursday the court's understanding was that the appeal would be pursued and that the application for permission on the grounds refused would be renewed.
12. I turn to the schedule of reasons for the order proposed. One of the reasons given in the schedule was the decision of this court in Shehzad and Chowdhury which the schedule stated "confirmed" that the Secretary of State's generic evidence and look-up tool was sufficient to discharge the initial evidential burden in an ETS appeal. That determination was handed down on 29 June 2016. There is no explanation, however, of why it is relevant in the context of the legal burden of proof.
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.
14. At the hearing, Mr Kovats accepted that the evidence adduced by the Secretary of State in those cases was limited, especially those decided before the UT's decision in these cases. In the majority it was, he stated, similar to the evidence she had adduced in the two cases before us.
15. I will first briefly summarise the evidence in this case and the UT's decision. I will then explain why I consider the Secretary of State was correct to conclude that the appeal must be dismissed and the proposals by Mr Kovats on her behalf about the management of the other pending cases which he, in a very constructive fashion, made, together with the limits on what is possible.
16. The evidence relied on by the Secretary of State in the cases before us is summarised between [8] and [26] of the UT's determination which focuses on the generic evidence. The documentary evidence is summarised at [10]. The statements and oral testimony of Ms Collings and Mr Millington and written evidence by Mr Green, also a Home Office employee, are summarised at [12] to [21] and [24] and [26]. None of these witnesses had expertise in the science of voice recognition. Mr Millington describes several demonstrations by ETS and states that he was a member of the Home Office delegation which met ETS representatives in the United States in June 2014. None of that delegation from this country were voice recognition experts or scientists and the process at the meetings did not include the provision or consideration of any voice recording (see [21] and [22]). Mr Green (see [12]) did not have the expertise to elaborate on the spreadsheet computer printouts about which he gave written evidence and which were stated to record the outcome of ETS's testing of the voice samples which were stated to relate to Messrs Majumder and Qadir.
17. The evidence adduced on behalf of Messrs Majumder and Qadir included an expert report on oral evidence by Dr Harrison, an expert in the science of voice recognition. He was critical of the evidence relied on by the Secretary of State (see UT [27] to [37]). The UT concluded at [70] that the evidence adduced on behalf of the Secretary of State was heavily weakened by the examination to which it was subjected by Dr Harrison's evidence, which the UT accepted in its entirety and which it stated enhanced and fortified the cases of Messrs Majumder and Qadir. As to the non-expert evidence, that relating to Mr Majumder is outlined at [41] to [45] and included evidence by a BBC journalist involved in the Panorama programme and by an acquaintance who gave character evidence as well as his own evidence. The evidence on behalf of Mr Qadir is summarised at [48] to [52]. Like Mr Majumder, he was extensively cross-examined at the hearing on the topics referred to (see [94] of the UT's determination).
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.
19. After considering the evidence and considering the factors to which I have referred, the UT held that Messrs Majumder and Qadir had discharged the evidential burden of raising an innocent explanation of the prima facie indications of deceptions on their part in the Secretary of State's evidence. Their evidence was found to be plausible and truthful. There had been no suggestion that any of the documents relied on by Mr Majumder were falsified or forged (see [74] to [77]). Although the Tribunal regarded him as an unsatisfactory witness in certain respects, at [87] it ultimately concluded that he was telling the truth.
20. Mr Majumder gave oral evidence in English at the FTT. The UT referred to this and to the qualification that he had obtained at one of the colleges. Mr Qadir gave oral evidence in English before the UT and was cross-examined. The Tribunal concluded at [97] that his response to detailed and penetrating questioning revealed no significant discrepancy or inconsistency. While taking account of the submission on behalf of the Secretary of State that his grammar appeared to be less than perfect, it stated (as [98]) that there was no basis for concluding that his apparent English language proficiency based on his oral evidence, either on its own or in combination with other factors, assisted the Secretary of State in discharging the legal burden of establishing that his dishonesty was instrumental in the TOEIC certificate. The UT had the opportunity of assessing his demeanour and it also stated that in his oral evidence there was no indication of invention, exaggeration or evasiveness, and that he consistently presented as a witness of truth (see [99]).
21. As to whether the Secretary of State had discharged the legal burden of proof (ie establishing on the balance of probabilities that the respondents had procured their TOEIC certificates by deceit), the UT stated that all the findings and evaluative assessments it had earlier referred to had to be balanced. As to the evidence of the respondents, the UT concluded (see [100]) that while there were imperfections in Mr Majumder's evidence, it accepted its core elements. It also accepted the central thrust of Mr Qadir's evidence and it stated there were no significant flaws in the documentary evidence adduced by both.
22. As to the evidence adduced on behalf of the Secretary of State, the UT held at [101] that the generic evidence had narrowly discharged the initial evidential burden of proof, but it concluded (see [70] and [100]) that the evidence adduced on behalf of the Secretary of State had been heavily weakened by the examination to which it was subjected by Dr Harrison's evidence which the UT accepted in its entirety. It stated that there were also many shortcomings in the evidence of Ms Collings and Mr Millington (see [63]), and those shortcomings meant the Secretary of State had failed to discharge the legal burden of proof on her to establish on the balance of probabilities that the prima facie innocent explanations by the respondents were to be rejected.
23. I turn to the reasons for conceding the appeal. Mr Kovats accepted that in the light of all the evidence before the UT it had not erred in law in concluding that the generic and specific evidence put before it by the Secretary of State did not discharge the legal burden of proof that she bore to show dishonesty. He made it clear that he abandoned any submission that the UT in the present case did not treat Dr Harrison's evidence in a legitimate way. It followed that there was no basis for ground 3, the first of the two grounds on which permission was granted: averse treatment of the Secretary of State's evidence and misunderstanding of Dr Harrison's evidence.
24. I agree with Mr Kovats' reassessment of this aspect of the case. In my judgment, ground 3 and the submissions in the skeleton argument drafted by the Secretary of State's former counsel (I must emphasise that Mr Kovats has only recently come into this case) are fundamentally misconceived and ignore the UT's reasoning in its determination. The summary of Dr Harrison's evidence in the UT's determination (at [34]) states:

"While the ETS automated voice sample analysis is in the abstract reasonable, the available evidence fails to demonstrate a satisfactory level of reliability."

In short, he considered that the Secretary of State's evidence did not provide sufficient information to allow any assessment of the reliability of the voice recognition processes. Moreover, the UT did not regard Dr Harrison's evidence as a knock-out blow to the Secretary of State's evidence. It also considered (see [19] and [23]) the lack of expertise in the science of voice recognition of either of the Secretary of State's experts and (see [25]) that Mr Millington had nothing with which to counter Dr Harrison's analysis and opinion.

25. I also consider that ground 4 - that the UT erred in failing to have regard to the quality of the respondents' English when concluding that neither of them had cheated in their TOEIC exams - goes nowhere. The UT was entitled to conclude that Mr Majumder's college documents were a better gauge of his mastery of English than his performance at the hearing because there had been a passage of some three years between the date of the test and the hearing and because the members of the panel were not voice recognition experts but were performing a subjective view. The Tribunal did consider their English when considering their oral evidence: see in particular the matters I have summarised above.
26. These are the sorts of assessments of factual evidence that the UT was entitled to undertake after setting aside the First-tier Tribunal's decision and remaking the decisions.
27. As to the other cases pending before this court, my starting point is to agree with the UT at [102] to [103] that every ETS/TOEIC case will be fact sensitive, with the outcome determined on the basis of the evidence adduced by the parties. But in the statutory appeals, that evidence had already been adduced; and, as I have stated, Mr Kovats accepted that, save in a truly exceptional case, it would not be possible for the Secretary of State to adduce additional evidence at this stage.
28. It appears from the recent decision in MA to which I have referred that the evidential position has changed in cases that yet have to be decided by the Secretary of State or the Tribunal and that other questions, in particular the suitability of judicial review in deception cases and whether any cheating that was done was in fact by the migrant or by the test centre, had been raised. But, as again Mr Kovats helpfully accepted, some general categorisation of the cases is possible. In relation to the statutory appeals, he identified what he described as three categories, but in fact on analysis during the discussion turn out to be four categories.
29. The first is where the Secretary of State is the appellant and has appealed against a finding by the UT that the generic evidence did not satisfy the initial evidential burden that lay on the Secretary of State. That question had been settled by Shehzad and Chowdhury. Mr Kovats stated that the Secretary of State proposed to invite the respondents in cases in this category to agree to remit them to the Tribunal for the Tribunal to consider the cases on the basis of the decision of this court in Shehzad and Chowdhury.
30. The second category of case is one in which the Secretary of State is the appellant and the Tribunal correctly decides that she had discharged the initial evidential burden with her generic evidence but in the light of other evidence had not discharged the legal burden. This category is broadly the scenario in the two cases before us. Mr Kovats stated that the Secretary of State would review those cases and, without giving an answer in respect of a particular case for understandable reasons, also stated that she would be minded to concede the appeal. He thus indicated what he described as a broad departure of travel.
31. Since there are a relatively limited number of these cases, and since the Secretary of State's position is relatively clear, it should be possible to deal with this category within a reasonably short timetable by prioritising cases, although of course separating them from the other categories will take time. But I observe that the court will expect, particularly in the background to what has happened, to be informed once a decision has been made about any cases in which permission to appeal has been granted or permission is pending that the Secretary of State is minded to concede the appeal. I also observe that if it does that, that may help getting other pending cases which the Secretary of State is keen to get heard by the court more expeditiously.
32. The third category also consists of appeals by the Secretary of State, but where the appeal is against the decision in which it was held that the generic evidence had not discharged the initial evidential burden and was thus erroneous in that respect, but that other evidence meant that the Secretary of State would not have been able to discharge the legal burden. Mr Kovats indicated that in this class of case, also without giving an undertaking in respect of any particular case, the Secretary of State was minded to concede and to abandon the appeal.
33. The fourth category of case which emerged in the course of exchanges between the court and Mr Kovats are cases in which the migrant is the applicant or appellant. In this category the migrant complains about the treatment by the Tribunal of either the initial evidential burden or the impact on the question of whether the Secretary of State has satisfied the legal burden in the light of the totality of the evidence.
34. Additionally, the position of the judicial review cases was discussed. Mr Kovats agreed that the Government Legal Department would prioritise an exercise in categorising these cases with a view to disposing of them. It will be necessary to determine in which of these, in the light of the UT's decision in Messrs Majumder and Qadir's cases, the applications to appeal against the refusal of judicial review or of permission to apply for judicial review had merit. Where they do have merit it will be necessary to consider whether to withdraw the underlying decision.
35. Mr Kovats agreed that consideration would be given to providing some publicity to the Secretary of State's reassessment in the way that was done after the decision of this court in Pankina. I accept that the position will not be clear until the UT gives its decisions in the two judicial reviews that were heard together with MA's case, the claims brought by Messrs Mohibullah and Saha. Mr Kovats, however, accepted that there is work that can be done pending those decisions. For my part, I am very grateful that the Secretary of State has accepted that that work should commence now.
36. It is for these reasons and against a background of what the Secretary of State has proposed should happen in the other cases that I am content with the consent order and the reasons given for it, which I should add again have been accepted by Mr Knafler and Mr Malik.

LORD JUSTICE SALES:

37. I agree.

LADY JUSTICE BLACK:

38. I agree and would only add that I am grateful for the assistance and co-operation of the Secretary of State in now starting to address the large number of cases that might be affected by what is agreed today.