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173b8018-8f33-480a-9a21-3a4422d0f314Judgment of The Honourable Mr Justice McCloskey, President & Deputy Upper Tribunal Judge Saini in LEAD TOEIC/ETS Case
SM1 v. Secretary of State for the Home Department
Judgment Date: 23 March 2016

We act for the appellant, SM, in this appeal. SM was represented by Counsel, Mr Michael Biggs of 12 Old Square instructed by Universal Solicitors at the hearing before the Presidential Panel.

BBC Television programme “Panorama’s” broadcast of 10 February 2014 exposed fraud at some English languages test centre in relation to the taking of the Test of English for International Communication (“TOEIC”). TOEIC is one of the tests administrated by Educational Testing Services (“ETS”). ETS, an USA based company is the world’s largest private non-profit educational testing and assessment organisation. The allegation in TOEIC test cases included the use of proxies to undertake speaking tests by impersonating the candidates.

Immigration Minister, James Brokenshire, in his statement to Parliament made on 24 June 2014 said that an investigation, launched after Panorama, found evidence of 29,000 “invalid” tests and 19,000 “questionable” tests (in total 48,000). On the basis of that investigation, the Home Office took the drastic actions by instigating removal proceedings against the migrants alleged to be involved in the cheating. Other actions included revoking sponsorship licences of around 60 educational institutions (57 private colleges and 3 Universities), and detaining and removing thousands of international students and migrants who had obtained TOEIC certificate in the past.

SM, like thousands of other individuals, was accused by the Home Office of obtaining a TOEIC certificate by deception and relying on it to support his application for leave to remain in the United Kingdom as a student. The Home Office, on the basis of its allegation of deception, cancelled his leave while he was returning from a short holiday abroad. He was detained too. His appeal against the Home Office’s decision, ultimately, came before the Presidential Panel comprising the President of the Upper Tribunal, The Honourable Mr Justice McCloskey. The appeal was heard as a lead appeal to test the evidence adduced by the Home Office in support of their allegation of deception in so called “ETS /TOEIC” cases.

The Appellant SM has been granted an anonymity order by the Court, and therefore he cannot be named in any publication except by an Order of the Court.

The Presidential Panel of the Upper Tribunal heard evidence in this appeal over 5 days. The Home Office called Ms Rebecca Collings and Mr Peter Millington, senior Home Office officials, to give oral evidence. Their statements were used by the Home Office in defending all of the TOEIC/ETS cases in various courts. The President also heard evidence from Dr Harrison, an expert in the field of voice recognition, Mr Richard Watson, the producer of BBC Panorama documentary, and of the Appellant SM.
Decision and findings
On 23 March 2016, at 10am by handing down the Upper Tribunal’s Summary Judgment, the President, allowed SM’s appeal and concluded that the Home Office’s decision was unlawful.
In his Summary Judgment, the President has made these striking findings as to the Home Office’s quality of evidence in this appeal (emphasis added):
a) The evidence given by Ms Rebecca Collings and Mr Peter Millington was the principle evidence of the Home Office in these appeals but the Tribunal found that:
• The evidence of the Home Office’s two principal witnesses is “intrinsically limited”.
• Neither witness has any qualifications, credentials or expertise, in the scientific field involved in these appeals, namely voice recognition technology and techniques.
• Except from the limited “hearsay evidence” through the Home Office’s witnesses, there was no direct evidence at all from the ETS, the protagonist in this saga

b) Dr Harrison, the expert witness on behalf of the Appellant, gave evidence which was “persuasive” and contained a “litany of criticisms” of the ETS Voice recognition system
c) On the other hand, the President has made these important findings as to the Appellants evidence in this appeal (emphasis added):
• The Appellant was truthful and reliable in his accounts and core of his accounts were accepted by the Tribunal.

d) The Tribunal has then drawn its conclusion in the following terms:

“The legal burden of proof falling on the Secretary of State has not been discharged” and “the Appellants are clear winners”.
It is relevant to recall, as the Court of Appeal noted in a judgment, that the admission of foreign nationals to study here is not an act of grace. Not only does it help to maintain English as the world’s principal language of commerce, law and science; it furnishes a source of revenue (at rates which, by virtue of an exemption from the Race Relations Act 1976, substantially exceed those paid by home students) of frequently critical budgetary importance to the UK’s universities / colleges and independent schools.
The Home Office detained and removed thousands of individuals (most of them were students) from the UK on the basis of evidence that was comprehensively demolished before the President in this case. The generic witness statements of Ms Rebecca Collings and Mr Peter Millington that were used in thousands of cases, to justify detention and removal of thousand of migrants were unreliable. The ETS, evidently, refused to provide any documentation to the Home Office. The way in which the Home Office dealt with this saga is shameful at its extreme. There must be some accountability. The Home Office must be asked to explain:
• why ETS was listed as an accredited body in the Immigration Rules and, thereby, encouraging migrants to undertake the TOEIC test and obtain their certificate.
• why the Home Office has detained and removed thousands of individuals from the United Kingdom without any proper judicial remedy on the basis of hearsay and unreliable evidence;
• why did the Home Office effectively declined to exercise common sense and ask basic questions from ETS about its contentions;
• what the Home Office will do as to thousands of migrants / students who were wrongly accused of being cheats in an utterly humiliating way, detained and removed;
• what steps will it now take to ensure that what happened in this case should never happen again; and
• how will the Home Office now inform all those who she has already removed from the United Kingdom about the President’s findings as to the quality of its evidence.

There must be a Public/Parliamentary inquiry into the way the Home Office has dealt with this issue. Lessons must be learned from this disgraceful episode.

23rd March 2015

N:B: Newly corrected & replaced.

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