DK and RK (ETS: SSHD evidence, proof) India [2022] UKUT 112 (IAC),

As a part of many immigration applications in the UK, a key requirement is that Applicant’s must pass an approved English language test at a level applicable to their application, otherwise known as the Test of English for International Communication (TOEIC). Without such a certificate, the application cannot proceed.

The Secretary of State only recognises tests which have been issued from a pre-selected list of providers. One of these providers was Educational Testing Services (ETS). During the currency of its licence, the Home Office investigated several concerns regarding a high number of certificates being issued with top scores, from test centres that were run by ETS.

In February 2014, BBC Panorama released a documentary into ETS, which uncovered that corruption and fraud were rampant at these centres. Examples included test invigilators giving applicants the answers to the question; applicants having “fake sitters”, take their test for them; applicant would have a third person in the room next to them as they took the test, who would sit the oral and written part of the exam, with the exam centre invigilators and workers included in the conspiracy.

ETS had their licence revoked by the Home Office, who then began to review and verify the results obtained in ETS test centres. By the time that 10,000 results had bene analysed, it became clear that the majority of the results had been obtained by fraud and therefore classed as “invalid”.

The verification process was two steps. The first step was preliminary matching by voice recognition software. This was to identify whether a candidate had a stand-in to take their oral exam. The second step was then followed up with human verification.

As well as identifying results as “invalid”, a number of results were also deemed as “questionable”. A “questionable” result arose when the test was at a centre where numerous results had been deemed “invalid”. All certificates that were deemed to be “invalid” and “questionable” were cancelled.

The effect of this is that it led to many individuals either having their current leave in the UK cancelled, or their subsequent extension application being refused on the grounds that deception had been used in the prior application.

In the recent case of DK and RK (ETS: SSHD evidence, proof) India [2022] UKUT 112 (IAC), the two appellants had had their TOEIC exam cancelled as a result of the ETS investigation. They appealed on the grounds that the voice recognition process was defective and that they had actually passed their English language certificate without any fraud or deception.

The Upper Tribunal concluded that “the burden of proof of proving fraud or dishonesty is on the Secretary of State and the standard of proof is on the balance of probabilities.” The balance of probabilities is a legal test used in civil cases, it is the test that after weighing up and considering all the evidence, is it more likely than not, that the event in question occurred.

The Tribunal ruled that the evidence that the Secretary of State put forward “is amply sufficient to discharge the burden of proof and so requires a response from any appellant whose test entry is attributed to a proxy.” This means that the Tribunal was satisfied that the Secretary of State had provided sufficient evidence that showed that the procedures used in the investigation were valid and proportional and that as a result they successfully showed that in respect to the Appellants, sufficient evidence was shown that their tests has been acquired fraudulently.

At paragraph 4 of the judgment, it writes:

“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 takeaway points from this are:

  • There is nothing wrong with the evidence collected from the ETS investigation
  • The burden of proof is on the Secretary of State to show that a test was invalid
  • It must be decided on the balance of probabilities
  • Someone seeking to challenge voice recognition evidence, would require something concrete to show that a mistake had been made in their individual case.