A few days before the Court of Appeal hearing, the Home Office abandoned it’s appeal against the Upper Tribunal’s decision in SM and Ihsan Qadir v Secretary of State for the Home Department  UKUT 229 (IAC).
The Court of Appeal gave judgment anyway and here it is.
The case related to the ETS fraud scandal over English language test certificates obtained by use of proxy test-takers on a large scale.
Some 315 of such cases are apparently pending in the Court of Appeal.
The main question for the Court was whether the generic evidence that the Secretary of State relied upon to prove that English language test certificates had been obtained by fraud was enough to satisfy what lawyers call the legal burden of proof. (For a discussion of how that works, see here).
In brief, for the Home Office to establish an allegation of fraud against an individual, it must get over two hurdles:
- The evidential burden: this is a low hurdle. There must be, on the face of it, some evidence of deception. If the Home Office clears this hurdle (which is pretty much inevitable in ETS cases), Judges then look to the individual to give an innocent explanation, (which is again a low hurdle).
- The legal burden: this is a higher hurdle. If the person provides an innocent explanation, then the Judge turns back to the Home Office who must disprove the innocent explanation and establish fraud based on all the evidence.
The Court also considered the role of evidence about the English language skills of the persons accused of obtaining the test certificates through deception.
What did the Court decide?
The Court found that the Secretary of State’s appeal against the UT’s consideration of the expert evidence was “fundamentally misconceived” and dismissed it. Similarly, the UT was entitled to reach its conclusions on the English language abilities of the appellants based on the evidence before them.
But there’s more.
Lord Justice Beatson gave some general guidance:
- every ETS / TOEIC case is “fact sensitive” (§ 27). In other words, the outcome of each case depends on a detailed look at the facts and the evidence of both parties;
- in cases that have already been decided by the Tribunal on the generic evidence that was relied upon in Qadir, the Secretary of State will not normally be allowed to introduce further expert evidence (§ 27);
- where cases have not already been decided, new expert evidence may be relied on which raises further issues about whether the cheating was done by the individual or by the testing centre. There may also be further issues to raise about the suitability of judicial review (§ 28). An example of a case decided under the new expert evidence is the recent UT case of MA (ETS – TOEIC testing)  UKUT 00450(IAC).
For the 315 or so persons with statutory appeals at the Court of Appeal, the Court (at §§ 29 to 33) identified 4 categories:
- Where the Secretary of State has appealed against a determination by the UT that the generic evidence failed to meet the initial evidential burden. The proposal for these cases is for the Home Office to invite the individuals to agree to their appeals being sent back to the Tribunal to be reconsidered.
- Where the Secretary of State has appealed, and the UT has decided that the generic evidence met the evidential burden but failed to meet the (higher) legal burden of proof. The Home Office plans to review these cases with a view to conceding the appeals (although each case would depend on its facts).
- Where the Secretary of State has appealed against a determination by the UT that the generic evidence failed to meet the initial evidential burden, but that there was other evidence preventing the Secretary of State from discharging the legal burden, the Home Office plans to concede the appeals.
- Where the individual has appealed against the UT’s findings on the evidential burden and/or the overall conclusion on the evidence under the legal burden. The Court is silent on what is to happen with this category, but it seems plausible that there may be a review of the overall evidence of deception.
Then, there are the judicial review claims, which are going to be re-assessed in light of the outcome of this case:
the Government Legal Department would prioritise an exercise in categorising these cases with a view to disposing of them. It will be necessary to determine in which of these, in the light of the UT’s decision in Messrs Majumder and Qadir’s cases, the applications to appeal against the refusal of judicial review or of permission to apply for judicial review had merit. Where they do have merit it will be necessary to consider whether to withdraw the underlying decision. (§ 34)
There are further decisions awaited in the UT (those of Mohibullah and Saha) which may also generate some further guidance to consider.
What does this mean for those affected?
There is no one-size-fits-all answer.
This decision has wide implications that could affect the outcome of every category of pending case that has been decided by the Home Office or the Tribunals.
Each category is affected differently and every case remains fact-sensitive.
Can you advise me on what to do with my appeal or judicial review?
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