Court of Appeal gives fresh guidance for “invalid” ETS fraud cases

After getting busted on BBC Panorama for fraud on an industrial scale, the Home Office’s approved language testing contractor, Educational Testing Services (‘ETS’) reviewed its test results to assess the full extent of the cheating.

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).

Now, in Secretary of State for the Home Department v Shehzad and Chowdhury [2016] EWCA Civ 615, the Court of Appeal has given guidance on what the Secretary of State has to do in order to prove fraud in ETS cases where the results are allegedly “invalid”.

It’s worth reminding ourselves that in order to prove allegations of fraud or deception in immigration cases, a number of hurdles must be cleared:

• The Secretary of State must show that there is, on the face of it, evidence of deception (otherwise known as discharging the evidential burden).
• If the Secretary of State clears this hurdle, the burden shifts to the individual to provide a plausible innocent explanation (again, on the face of it).
• If the individual provides such an explanation, then the burden shifts back to the Secretary of State to disprove (aka the legal burden of proving fraud);
• The standard of proof is on balance of probabilities (ie. it must be more likely than not that fraud has taken place).
• Stronger and better quality evidence is required to prove a more serious allegation (see §§ 57 to 60 in Qadir).

While the Upper Tribunal in Qadir concluded that the generic evidence of its 2 witnesses (civil servants, Mr Millington and Ms Collings) was sufficient to clear the evidential burden (see § 60 of that decision), Shehzad and Chowdhury casts fresh doubt over this conclusion.

The Home Office accused Mr Shehzad and Mr Chowdhury of cheating in their English language tests carried out by the ETS. It curtailed their leave to remain in the UK and decided to remove them.

They won their appeals at the First-tier Tribunal on the basis that the Secretary of State had failed to get over the first hurdle (ie. the evidential burden).

Lord Justice Beatson concludes at § 30:

…where the generic evidence is not accompanied by evidence showing that the individual under consideration’s test was categorised as “invalid”, I consider that the Secretary of State faces a difficulty in respect of the evidential burden at the initial stage.

In Mr Shehzad’s case, the Tribunal was presented with the generic evidence of deception plus assertions that his results were “invalid”. The screenshot was missing a tab at the bottom of the page to show it was from a series of “invalid” test results.

According to Ms Giovennetti QC for the Secretary of State, “Mr Shehzad’s case was one of the earliest cases and that matters were now handled very differently”. This suggests that there are likely to be other cases in a similar position to Mr Shehzad, (ie. where the Home Office forgot to include the crucial tab at the bottom of the page).

In Mr Chowdhury’s case, the evidence included the generic statements plus evidence identifying his test results as “invalid” (the screenshot relied on showed the relevant tab at the bottom). In such cases, the Secretary of State should clear evidential burden and the burden will then shift to the individual to provide an innocent explanation. The Tribunals had erred by misunderstanding the significance of the evidence and Mr Chowdhury’s case was sent back to the Upper Tribunal to determine (§ 24).

A further important point that arose in Mr Shehzad’s claim was that although the Tribunal had allowed his appeal, it should not have done so because section 92(4) of the Nationality, Immigration and Asylum Act 2002 does not allow for an in-country right of appeal where a person raises a ‘human rights claim’ for the first time in their grounds of appeal. The Home Office need to have the opportunity to consider the human rights claim first (and to allow or refuse it) before a person can raise it as a ground of appeal (§32, approving of R (Nirula) v Secretary of State for the Home Department [2012] EWCA Civ 1436). This emphasises the importance of making any human rights claim in good time and in advance of filing an appeal against an unrelated immigration decision. (Although the Court did not cite the Upper Tribunal case of R (on the application of Waqar) v Secretary of State for the Home Department (statutory appeals/paragraph 353) IJR [2015] UKUT 00169 (IAC), the Court’s conclusion is in accordance with that case at § 16).

Shehzad and Chowdhury also touches on some of the practical difficulties in out-of-country appeals.

Mr Chowdhury… is now in Bangladesh. Shortly before the hearing in this court the Civil Appeals Office was informed that he no longer had legal representatives in these proceedings. It was possible to communicate with him by email before the hearing but, beyond the original grounds of appeal, the court has received no representations from him. (§ 27)

While the Court of Appeal made some attempt at including Mr Chowdhury, there is an unacceptable lack of guidance on the duties of the parties and the Court in out-of-country appeals where the individual is unrepresented. At present, it’s difficult to see how to avoid significant disadvantage to such a claimant at a Court of Appeal hearing, especially when the Secretary of State puts up a leading public law QC against them.