Jagtar Ram v Secretary of State for the Home Department
[2023] EWCA Civ 1323
Secretary of State for the Home Department v Varkey & Anor
11 March 2024
[2024] UKUT 142 (IAC)
Upper Tribunal
Two people appealed a decision to refuse them permission to stay in the UK because their English language test results were fraudulent. The court reviewed the evidence and found that one person's test was definitely done by someone else, not them. Because the test center had lots of cheating, the court didn't believe their explanations, and the appeal was refused.
Key Facts
- •Mr. Varkey and Ms. Joseph (appellants) appealed the refusal of their leave to remain in the UK, primarily due to allegations of TOEIC exam fraud.
- •Mr. Varkey took TOEIC tests in 2012, relying on the results to support his visa application.
- •ETS (exam provider) later determined Mr. Varkey's test results were invalid due to proxy test takers.
- •The case involved various methods of TOEIC fraud, including direct substitution, remote control, dual monitors, and parallel testing.
- •The London College of Social Studies (LCSS), where Varkey took his tests, was identified as a 'fraud factory' with widespread cheating.
- •The Tribunal considered evidence from ETS, including voice recognition software analysis, to determine the validity of the allegations.
- •Expert evidence was presented concerning the feasibility of different TOEIC fraud methods and whether candidates were aware of the fraud.
- •The Tribunal assessed the appellants’ evidence against the background of widespread fraud at LCSS and the standard of proof for dishonesty.
Legal Principles
The standard of proof in cases alleging dishonesty is the balance of probabilities.
DK and RK (ETS: SSHD evidence; proof) India [2022] UKUT 00112 (IAC) and Jones v Birmingham City Council [2023] UKSC 27
Evidence from ETS indicating a test was taken by someone other than the applicant is strong evidence against the applicant and requires a credible explanation.
DK and RK (ETS: SSHD evidence; proof) India [2022] UKUT 00112 (IAC)
The inherent probability or improbability of an event is a relevant factor in determining whether it occurred, but should not overshadow the entirety of the evidence.
DK and RK (ETS: SSHD evidence; proof) India [2022] UKUT 00112 (IAC) and Jones v Birmingham City Council [2023] UKSC 27
Tribunals must consider all evidence as a whole in a fact-sensitive manner, weighing the appellant's evidence against the background of widespread fraud and the reliability of ETS's processes.
Ahsan & Others v Secretary of State [2017] EWCA Civ 2009, DK and RK (ETS: SSHD evidence; proof) India [2022] UKUT 00112 (IAC), RAM v Secretary of State for the Home Department [2023] EWCA Civ 1323
Outcomes
The appeals were dismissed.
The Tribunal found that Mr. Varkey acted dishonestly to obtain his TOEIC score. The evidence from ETS, showing his test was taken by a proxy, along with the evidence of widespread fraud at LCSS, outweighed Mr. Varkey's denial and explanation.
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