By Dr Lusine Navasardyan
Under current immigration rules, most of the leave to remain categories in the UK require the applicant to prove their knowledge of English language. Throughout the years, tens of thousands of people have relied on test providers to meet these requirements and secure their entry clearance or leave to remain in the UK.
Cancelation of Leave and Revocation of Indefinite Leave to Remain because of alleged fraud
On 10 February 2014, the BBC “Panorama” program broadcast prompted an investigation into ETS TOEIC centers. The investigation revealed supposed high levels of irregularities at these test centers. As a result of this, since early 2014, the Secretary of the State for the Home Department has refused and cancelled significant amounts of leave to remain applications, as well as revoking Indefinite Leaves to Remain on the basis that the applicants used deception. This policy of blanket cancelations and revocations is still affecting a significant number of people. Not only has the Secretary of the State cancelled the leaves that were obtained using the ETS tests as proof of language, but she is currently refusing further leave to anyone who had relied on such tests to secure their leave previously. In many cases, the Indefinite Leave to Remain in the UK secured on the basis of leave to remain obtained using such a test, has been revoked. Most often, the triggering event for this is the application to naturalise.
Essentially, everyone who has used this service, whether guilty of fraud or not has been – or potentially still can be – affected by this policy. It is important to understand that the above approach is a policy and not a fact-based reality.
Challenging a refusal or Revocation based on alleged fraud due to the use of ETS TOIEC
Naturally, the first cases challenging the refusals and revocations appeared almost instantly.
The type of challenge will always depend on the decision that is being challenged. In certain circumstances, for instance where it is a refusal of an application that carries a right of appeal, the allegation of fraud can be challenged by appealing the decision. For all other decisions, the route of challenge is by way of lodging a judicial review claim. In any event, there needs to be a decision from the Home Office to prompt a challenge.
The examination of SSHD’s case in the judiciary forum exposed the significant issues that underline the SSHD’s approach. From isolated cases of fraud and the fact that there was arguably no process or procedure in place to adequately safeguard against such fraudulent actions, the SSHD made a wide-ranging conclusion that all the applicants who have relied on these tests had used deception. The fact that the SSHD had used the same generic evidence in nearly all TOIEC cases, leads to conclusion that in most cases they do not have strong evidence to support their allegations.
The use of generic evidence was exposed by the judiciary as early as in 2015, in R (Gazi) v Secretary of State for the Home Department (ETS – judicial review) (IJR)  UKUT 327 (IAC) 
“…Thus there is a slowly expanding body of case law in this sphere. In all of these cases, the Secretary of State has relied on evidence of a generic kind. This consists of the witness statements of Rebecca Collings and Peter Millington, both dated 23 June 2014. The statements of these two witnesses have neither evolved nor altered since then. In some cases, as in the present one, these statements are supplemented by a further witness statement of another Home Office official.”
It is essential to point out that all the cases where the SSHD alleges deception for using ETS-TOIEC tests for securing a leave, the burden of proof rests on her, in accordance with the established legal principals. As the Secretary of the State is the one making a claim, the onus is on her to prove these allegations.
In the case of SM and Qadir (ETS - Evidence - Burden of Proof)  UKUT 229 (IAC), the Tribunal, in opinion of some, erroneously concluded that the SSHD’s generic evidence was sufficient to discharge the burden of proof and, according to the legal principals, the burden of proof was then transferred to the other party. An important note to the findings of the Tribunal in this case is, that while the Tribunal has accepted that the generic proof adduced by SSHD was sufficient to open the door for the allegations, the Tribunal concluded that it was not particularly strong. This approach is of significant importance. This means that each person’s case will be looked at in accordance with their own particular circumstances. Moreover, the acknowledgement of the weakness of the of the SSHD’s evidence means that the evidence to counter the SSHD’s fraud allegations need not be particularly strong either. The burden of proof is an exercise in balance. In civil matters, the burden of proof is “on balance of probabilities”. The judge will make a final decision on the basis of the entire evidential material in front of them. This means that if the party that makes allegations has very strong evidence of those allegations, the other party, to successfully refute them, must produce evidence that is equally as strong. This is because, otherwise, the balance will remain in favour of the party making the allegations. However, as the proof that the SSHD relies upon in TOEIC deception cases has been ruled as being generic and not particularly strong, but merely sufficient to allow for investigation, the counter-evidence does not need to meet a high-threshold. It needs to be just enough to tip the balance back in favour of the applicant. This is particularly helpful for those who sat these tests many years ago and are unable to produce very strong evidence.
The more recent case of Abbas, R (On the Application Of) v Secretary of State for the Home Department  EWHC 78 (Admin), the High Court confirmed the above:
- The legal burden of proving that the Claimant used deception lies on the Secretary of State albeit that there is a three stage process. The Secretary of State first must adduce sufficient evidence to raise the issue of fraud. The Claimant has then a burden of raising an innocent explanation which satisfies the minimum level of plausibility. If that burden is discharged, the Secretary of State must establish on a balance of probabilities that this innocent explanation is to be rejected.
The same case also contains important point on the standard of proof.
- There is one civil standard of proof (which is the standard to be applied). The seriousness of the consequences does not require a different standard of proof but flexibility in its application will involve consideration of the strength and quality of the evidence. The more serious the consequence, the stronger must be the evidence adduced for the necessary standard to be reached.
Arguments that will serve your defence
There are several aspects that an individual facing such allegations should concentrate on. Some of the points will be more relevant to cases challenged through an appeal, others in judicial review cases.
1. Credibility - Essentially, any immigration case that deals with deception allegations are going to be very much about the individual’s credibility. This means that the judge will base their decision on whether they find the person and their account of the events credible. In cases where there is a live witness statement, where the individual’s account of the event is found to be credible by the Judge, it will weigh heavily.
2. Past behaviour - Normally, the Tribunal would look in the person’s past behaviour for signs to see whether it would be probable for the particular person to commit fraud to achieve desirable results. Those who are upstanding members of society, which demonstrable skills, high morals and good social standing are less likely to be found to have propensity for fraudulent behaviour. Therefore, character is very likely to be of significant importance for the outcome of the challenge.
3. Motivation - The Tribunal will look to see whether there was any real motivation for the person to behave in a dishonest manner. For instance, if the person already had demonstrable knowledge of English before sitting the ETS TOIEC test, for instance by having set another test or by attending and completing courses in English etc, it is unlikely that the person would have had the reason and therefore the motivation to cheat. This point, however, will not, on its own, be sufficient to overturn the balance. In the above quoted Abbas, R (On the Application Of) v Secretary of State for the Home Department it was found that motivation can be wide ranging and, for instance, knowledge of language is not sufficient to rule out that the person would have had no motive to cheat.
4. Finally, evidence of attending the test or even knowledge of the processes and procedures of the test, an account of the day of the test etc., that can demonstrate the person was present during the test will strengthen the challenge. This is because the allegations of fraud brought by the SSHD are concerning tests taken by proxy. Therefore, if the person is able to prove that they have attended the test, it will go a long way in disproving the SSHD’s allegations.
How can OTS Solicitors assist
In all circumstances, cases of deception are extremely complex. There are numerous variables and strong knowledge of law and the practical application of it by the courts and Tribunals is essential. At OTS Solicitors we have a team of immigration experts with years of litigation experience who can guide you through the complexity of legal challenges to the Home Office refusals. Please call our team of specialist immigration solicitors on 0207 936 9960 to ensure that your case is successfu
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Posted on: Thursday, 10 August, 2017