[UPDATE: the Upper Tribunal has now published this case. It is available here, as SM and Ihsan Qadir v Secretary of State for the Home Department [2016] UKUT 229 (IAC). It contains identical paragraphs references to the unofficial version available below].

Here it is. A client kindly sent me this.

It has not yet been published by the Upper Tribunal on its online database (despite the Tribunal recognising that “these appeals are crying out” for speedy closure).

I will post more analysis of the implications and next steps soon, but here’s a few things we didn’t know already:

  • the Home Office has accused some 33,000 people of fraud based on flawed evidence (paragraph 12). I’ve blogged about the figures recently but by any count, that’s an enormous number of people whose lives have been affected by this scandal.
  • the Tribunal blocked the government’s attempt to gather new expert evidence at the last minute (paragraph 9 and Appendix 2). I will return to this below when discussing the effect on any future appeals.
  • this is the first case in which the evidence of the government’s 2 witnesses were tested in cross-examination (paragraph 13).
  • the Home Office had failed in its basic duty to the Tribunal by not providing any of the supporting documents that one of its witness statements referred to (paragraph 15).
  • ETS split the suspected test results into two categories: “invalid” and “questionable”. Later, the Home Office invented its own third category of persons who took tests at a centre where there were numerous “invalid” and “questionable” results (paragraph 16 and 24).
  • ETS refused to disclose any of the voice recordings of individuals suspected of fraudulently cheating unless there was a Court order against it (paragraph 22).
  • The expert evidence of Dr Harrison (for the Appellants) was that due to flaws in the methods adopted by ETS and the Home Office, there was an unknown number of persons who had been incorrectly identified as fraudulent cheaters (paragraph 37). Despite his experts report being available for 1 year, the government failed to properly address any of his criticisms of ETS and the Home Office.
  • The Tribunal considered the case law on the burden and standard of proof in cases of alleged fraud and deception (paragraphs 57 to 60). In basic terms, the burden rests on the government to prove the deception on balance of probabilities. Stronger and better quality evidence is required to prove a more serious allegation.
  • At paragraph 60, while the Tribunal had substantial concerns about the government’s evidence, the Tribunal found it had (just) passed the evidential burden of proof and therefore required the Appellants to raise an innocent explanation (applying Shen (Paper appeals; proving dishonesty) [2014] UKUT 236 (IAC) at paragraph 25). The government’s case was “paled and heavily weakened” by the Appellant’s expert evidence (paragraph 70) and ultimately it had failed to discharge the legal burden of establishing deceit on balance and/or showing that the Appellant’s innocent explanations should be rejected (101).

There are then some interesting comments on the wider litigation landscape:

  • The Tribunal emphasised that every ETS/TOEIC case will be fact sensitive and determined on the evidence adduced by the parties (paragraph 102). Judicial review remains an inadequate form of litigation given the nature of the evidence in these cases. If the government produce new expert evidence, that will need to be considered in future appeals (103).
  • Where the Tribunal hears ‘out of country’ appeals in ETS cases, the question of whether appellants receive a fair hearing will depend on the circumstances. The Tribunal’s relative inexperience at using video link, Skype and other media was noted (paragraph 104).

Posted by Ben Amunwa

Founder and editor of Lawmostly.com. Ben is a business and public law barrister with the 36 Group. He gives expert legal advice on employment, immigration and commercial disputes to a wide range of clients.

3 Comments

  1. […] Note here this paragraph is different in the officially unreported version as opposed to the unofficial unreported […]

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  2. […] ETS split the suspected test results into two categories: “invalid” and “questionable”. It later emerged that the Home Office created a third category comprised of persons who took tests at a centre where there were numerous “invalid” and “questionable” results (see the Upper Tribunal case of SM and Ihsan Qadir v Secretary of State for the Home Department [2016] UKUT 229 (IAC)   §§ 16 and 24. Read my overview of that case here). […]

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  3. […] The Home Office’s hardline position rested on unreliable and unquestioned evidence of cheating presented by the language testing provider, ETS. Evidence that has since been dismantled by subsequent litigation. […]

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