Secretary of State for the Home Department v MA

Whether an applicant procured a TOEIC qualification by fraud is invariably fact sensitive. The Secretary of State may discharge the initial evidential burden through reliable generic and individual evidence, including an invalid-result assessment. The applicant must then raise an innocent explanation. A tribunal must assess all evidence, including the reliability of testing processes and the applicant’s credibility, without treating apparent English fluency as determinative.

Where the recorded voice is that of a proxy rather than the claimed test taker, it is not that person’s personal voice data. A data-protection challenge founded on unauthorised processing or transfer of that voice data consequently fails.

The Secretary of State cancelled MA’s leave and refused him leave to enter under paragraph 321A(2) of the Immigration Rules, alleging that he had procured a TOEIC English-language certificate by deception.

The First-tier Tribunal allowed MA’s appeal. Its decision was set aside by the Upper Tribunal because of an error of law. On remaking the decision, the Upper Tribunal considered the Secretary of State’s documentary evidence, expert evidence about ETS testing systems, and MA’s oral and written evidence.

The central issue was whether MA had used a proxy for the TOEIC speaking test, and whether alleged defects in recording, transfer and data protection affected the decision.

1. The Secretary of State’s appeal was allowed. The Upper Tribunal reversed the First-tier Tribunal’s decision and affirmed the decision of 14 October 2014 cancelling MA’s leave.

2. The panel applied the shifting evidential-burden approach described in SM and Qadir v SSHD [2016] UKUT 00229 (IAC). The Secretary of State had produced materially stronger general and individual evidence than in earlier TOEIC cases. This included reliable evidence that MA’s second result had been assessed as invalid, evidence of irregular patterns at the relevant centres, and records linked to MA.

3. Fraud in TOEIC testing had to be determined from the evidence in the individual case. The expert evidence identified limitations and uncertainties in ETS systems. However, it did not undermine the decisive evidence in this case. MA’s inconsistent accounts, unexplained omissions, implausible evidence about the first test, and lack of an innocent explanation supported the conclusion that neither certificate resulted from tests he took.

4. The Secretary of State therefore discharged the evidential burden of proving deception. MA failed to raise an innocent explanation, so no further transfer of the burden arose. The requirements of paragraph 321A(2) of the Immigration Rules were met.

5. The data-protection argument also failed. Given the finding that a proxy had taken the test with MA’s active connivance, the voice recording was not MA’s voice data. The issues concerning any transfer to the United States did not arise. The panel added, in an alternative observation, that a breach of Articles 17 or 25 of Directive 95/46/EC would not necessarily establish a breach of Article 8 rights.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the Secretary of State’s appeal, reversed the First-tier Tribunal and affirmed the decision cancelling MA’s leave.

• Upper Tribunal (Immigration and Asylum Chamber): By a decision promulgated on 24 September 2015, set aside the First-tier Tribunal’s decision for error of law and directed that the decision be remade.

• First-tier Tribunal: By a decision promulgated on 27 April 2015, allowed MA’s appeal on the basis that deception had not been proved.