SM & Anor v Secretary of State for the Home Department

In an appeal alleging dishonest procurement of a TOEIC English-language certificate, the Secretary of State bears the legal burden of proving dishonesty on the balance of probabilities. Her evidence must be sufficiently cogent for the seriousness of the allegation and its consequences.

Generic ETS evidence and case-specific data may narrowly satisfy the initial evidential burden. If the appellant raises a plausible innocent explanation, however, the Secretary of State must prove that the explanation should be rejected. Each appeal is fact sensitive and must be determined on the evidence actually adduced, including reliable expert and individual evidence.

The Secretary of State cancelled the appellants’ student leave on the basis that their TOEIC certificates had been obtained through fraud. The First-tier Tribunal dismissed each appeal. The Upper Tribunal had previously set aside those decisions for error of law: in SM’s case, for undue reliance on generic evidence and inadequate reasons; and in Mr Qadir’s case, for error concerning the burden of proof.

On remaking the appeals, the Tribunal heard oral evidence from the Home Office’s generic witnesses, expert voice-recognition evidence, and evidence from both appellants. The central issue was whether the Secretary of State had proved, on the balance of probabilities, that either appellant dishonestly procured his TOEIC certificate.

1. Appeals allowed. The Tribunal remade the First-tier Tribunal decisions by allowing both appeals. Although the Secretary of State’s generic ETS evidence, together with the individual lookup material, narrowly discharged the initial evidential burden, she did not discharge the legal burden of proving dishonesty.

2. Where the Secretary of State alleges deception, she bears the legal burden throughout. Her initial evidential burden requires sufficient evidence to raise the issue. The appellant must then raise an innocent explanation meeting the minimum threshold of plausibility. If that occurs, the Secretary of State must prove on the balance of probabilities that the explanation should be rejected.

3. There is one civil standard of proof. Its application requires evidence of greater cogency where the allegation or its consequences are serious. Dishonesty is required to establish false representations or false documents for the purposes of paragraph 321A of the Immigration Rules.

4. The generic evidence was materially weakened by its dependence on ETS information, the absence of scientific expertise among the Home Office witnesses, the lack of ETS evidence or voice recordings, and unanswered expert criticism of the voice-recognition process. The Tribunal accepted the expert evidence that the available material did not demonstrate satisfactory reliability and left the risk of false positives unassessed.

5. Both appellants gave plausible innocent explanations, supported by their histories, documentary evidence, and accounts of their tests. Their evidence, considered with the expert evidence and the weaknesses in the Secretary of State’s case, was not displaced. The outcome does not establish a rule for all ETS cases: each remains fact sensitive and turns on the evidence adduced.

• Upper Tribunal (Immigration and Asylum Chamber): On remaking the appeals after earlier findings of error of law, allowed both appeals: [2016] UKUT 229 (IAC).
• First-tier Tribunal: Dismissed SM’s appeal on 27 April 2015 and Mr Qadir’s appeal on 30 January 2015. Those decisions were subsequently set aside for error of law; no citation is stated in the judgment.