New decision departs from SM and Qadir and concludes Secretary of State's evidence is 'amply sufficient'
The Upper Tribunal (Immigration and Asylum Chamber) last week released a lengthy new decision with the latest on the long-running TOEIC cheating scandal.
Image credit: UK GovernmentThe saga dates back to a BBC Panorama exposé in 2014 which uncovered systematic cheating in TOEIC (Test of English for International Communication) English proficiency tests required under immigration rules for students and other visas.
Since then, there has been much controversy over the accuracy of the voice recognition technology used by the test administrators, Educational Testing Service (ETS), as evidence of cheating. The All-Party Parliamentary Group (APPG) on TOEIC found in a July 2019 report, for example, that the evidence was "confused, misleading, incomplete and unsafe". BBC News reported in February of this year that by 2019 more than 3,700 people accused of cheating had subsequently won their appeals.
Last week's decision by Upper Tribunal (IAC) President Mr Justice Lane and Vice President Mr CMG Ockelton is clear in finding that widespread cheating did take place. The evidence showing that cheating took place in a number of ETS centres is said to be "overwhelming".
The decision states: "One thing is clear beyond any conjecture: that there were numerous cases of test results obtained fraudulently by the use of proxies. That is proved at a standard well beyond what is required in these proceedings by the criminal convictions and the evidence that led to them. It was striking that some of the material we were asked to consider in these appeals included assumptions that nobody had obtained results, or leave to remain, by fraud. That is a view that is simply not open to anybody with any regard for the rule of law or the value of truth."
The Upper Tribunal's decision examines the evidence that the Secretary of State currently relies upon to establish cheating in individual cases. It concludes that this evidence is "amply sufficient".
Mr CMG Ockelton said: "We conclude that despite the general challenges made, both in judicial proceedings and elsewhere, there is no good reason to conclude that the evidence does not accurately identify those who cheated. It is amply sufficient to prove the matter on the balance of probabilities, which is the correct legal standard. Although each case falls to be determined on its own individual facts and evidence, the context for any such determination is that there were thousands of fraudsters and that the appellant has been identified as one of them by a process not shown to have been generally inaccurate."
The decision continues: "Thus any assessment of whether the burden of proof is discharged in an individual case falls to be determined against the background of the fact that there were many thousands of results obtained fraudulently. The assertion that an individual appellant cheated is not an unqualified assertion to be viewed against the background of general unlikelihood, but is a particular assertion that the appellant was one of the large number who certainly did cheat."
While doubt has been cast on the accuracy of the voice recognition process used by ETS to allege cheating, the Upper Tribunal finds it to be "clearly and overwhelmingly reliable". The decision notes that the evidence is not determinative and there is room for error, but concludes that "there is every reason to suppose that the evidence is likely to be accurate."
ETS would have no known motive for exaggerating the level of the fraud on their system, the Upper Tribunal's decision added.
In dismissing the two appeals, the Upper Tribunal found that the Secretary of State had amply established that both appellants employed dishonesty in their TOEIC tests.
As the Upper Tribunal notes, the decision is a notable departure from the earlier 2016 Upper Tribunal decision in SM and Qadir v Secretary of State for the Home Department (ETS – Evidence – Burden of Proof)  UKUT 00229 (IAC).
In that decision, the then Upper Tribunal (IAC) President Mr Justice McCloskey found: "[W]e have substantial reservations about the strength and quality of the Secretary of State's evidence. Its shortcomings are manifest. On the other hand, while bearing in mind that the context is one of alleged deception, we must be mindful of the comparatively modest threshold which an evidential burden entails. The calls for an evaluative assessment on the part of the tribunal. By an admittedly narrow margin we are satisfied that the Secretary of State has discharged this burden. […] For the reasons elaborated, we conclude, without hesitation, that the Secretary of State has failed to establish, on the balance of probabilities, that the Appellants' prima facie innocent explanations are to be rejected. The legal burden of proof falling on the Secretary of State has not been discharged. The Appellants are clear winners."
In contrast, last week's decision says: "Where the evidence derived from ETS points to a particular test result having been obtained by the input of a person who had undertaken other tests, and if that evidence is uncontradicted by credible evidence, unexplained, and not the subject of any material undermining its effect in the individual case, it is in our judgment amply sufficient to prove that fact on the balance of probabilities. In using the phrase 'amply sufficient' we differ from the conclusion of this Tribunal on different evidence, explored in a less detailed way, in SM and Qadir v SSHD. We do not consider that the evidential burden on the respondent in these cases was discharged by only a narrow margin. It is clear beyond a peradventure that the appellants had a case to answer."
Coming several months after the Upper Tribunal's hearing in March 2021 and November 2021, the TOEIC scandal received significant new media attention on the BBC's Newsnight in February of this year.
BBC News said a new investigation by journalists had raised fresh doubts about the evidence used by ETS to allege cheating, and it raises additional questions about why ETS has been trusted to investigate what went on.
BBC News stated: "Whistleblower testimony and official documents obtained by Newsnight reveal the Home Office has continued to try to remove people based on the claims of the international testing organisation ETS - despite knowing of serious concerns about its conduct and flaws in its data."
The new investigation by Newsnight was undertaken by the same journalists who exposed the original fraud for Panorama in 2014.
"• Past and present ETS staff told the Home Office they had found significant evidence of organised cheating almost two years before it was exposed by Panorama.
• They told Home Office investigators their efforts to close some fraudulent test centres were blocked by managers who were worried test fee income would fall.
• From these accounts, the Home Office learned it had been kept in the dark about the fraud.
• Investigators were also given eyewitness testimony that some tests were faked with a method known as 'remote testing', which lawyers believe undermines ETS's evidence."
Stephen Timms MP, the chair of the APPG on TOEIC, said: "What Newsnight has shown is that the Home Office knew that ETS was behaving appallingly. And that makes it even more extraordinary that the Home Office relied totally on ETS's claims."
Meg Hillier MP, the chair of Parliament's Public Accounts Committee, said she believed the Home Office could no longer rely on ETS data in light of Newsnight's findings.
Immigration barrister Paul Turner told the BBC: "I think the government will die in a ditch defending ETS's data. But the courts are finding that an awful lot of people did not cheat."
According to the BBC, ETS found that 58,000 TOIEC tests taken between 2011 and 2014 were suspicious. As a result, more than 2,500 people were deported and at least 7,200 were forced to leave the UK after being accused of cheating. By 2019, however, more than 3,700 people had won their legal appeals against the cheating accusations.
A copy of the BBC's Newsnight investigation, as originally broadcast on 9 February, is available here on YouTube.