Majumder v Secretary of State for the Home Department (Rev 1)

In an appeal alleging deception in an English-language test, generic evidence may discharge the Secretary of State’s initial evidential burden. The legal burden nevertheless remains on the Secretary of State to establish dishonesty on the balance of probabilities.

Whether that burden is discharged depends on the totality of the evidence in the individual case. Relevant matters may include the reliability of voice-recognition evidence, the individual’s explanation and character, performance under cross-examination, English-language proficiency and academic history. An appellate court should respect evaluative factual findings which the tribunal was entitled to make on the evidence.

The Secretary of State cancelled the respondents’ leave to remain on the ground that they had obtained TOEIC English-language certificates through deception. The First-tier Tribunal dismissed their appeals. The Upper Tribunal allowed their further appeals in SM and Qadir (ETS—Evidence—Burden of Proof) [2016] UKUT 229 (IAC).

The Upper Tribunal found that the Secretary of State’s generic evidence narrowly discharged her initial evidential burden. After accepting expert criticism of the voice-recognition evidence and assessing the respondents’ evidence, however, it held that she had not proved dishonesty on the balance of probabilities.

The Secretary of State appealed on the grounds that the Upper Tribunal had treated the evidential material perversely and had inadequately considered the respondents’ proficiency in English. Shortly before the hearing she agreed that the appeal should be dismissed without a determination on the merits. Given the appeal’s status as a test case and the large number of related cases, the court gave reasons for approving that disposal.

1. The appeal was dismissed by consent. The Secretary of State accepted that the Upper Tribunal had made no error of law in concluding that the generic and specific evidence failed to discharge the legal burden of proving dishonesty. The court unanimously agreed with that reassessment.

2. The Secretary of State’s challenge to the treatment of the expert evidence was fundamentally misconceived. The expert had accepted that automated voice-sample analysis was reasonable in the abstract, but considered that the available material did not permit a satisfactory assessment of its reliability. The Upper Tribunal treated this evidence legitimately and did not regard it as automatically decisive. It was also entitled to take account of the absence of relevant scientific expertise among the Secretary of State’s witnesses.

3. The challenge concerning the respondents’ proficiency in English also failed. The Upper Tribunal had considered their use of English and was entitled to regard contemporary college documents as a better measure of one respondent’s ability than his performance at a hearing approximately three years later. Its members were making a subjective assessment and were not voice-recognition experts. Its evaluation of the other respondent’s detailed oral evidence and cross-examination was likewise open to it.

4. The legal burden remained on the Secretary of State to establish on the balance of probabilities that the certificates had been procured by deception. The assessment required the whole of the evidence to be balanced. Relevant matters included what the accused person stood to gain or lose, character, cultural environment, performance under cross-examination, the relationship between apparent English proficiency and TOEIC scores, and whether academic achievement made cheating unnecessary or illogical.

5. Every ETS/TOEIC case is fact-sensitive and must be decided on the evidence adduced by the parties. The earlier holding that generic evidence can satisfy the initial evidential burden does not establish that the legal burden has been discharged. The Upper Tribunal’s assessments after hearing and evaluating the evidence were findings it was entitled to make.

6. The court approved the consent order, including the agreed costs disposition. It also recorded the Secretary of State’s proposals to categorise and review the related statutory appeals and judicial-review cases pending before the court.

1. Court of Appeal (Civil Division): In [2016] EWCA Civ 1167, unanimously dismissed the Secretary of State’s appeal by consent and gave reasons confirming that the Upper Tribunal’s evidential assessments disclosed no error of law.
2. Upper Tribunal (Immigration and Asylum Chamber): In SM and Qadir (ETS—Evidence—Burden of Proof) [2016] UKUT 229 (IAC), allowed the respondents’ appeals. It held that the Secretary of State had discharged the initial evidential burden but had not proved deception on the balance of probabilities.
3. First-tier Tribunal: Dismissed the respondents’ appeals against the cancellation of their leave to remain.