Mohd Nawaz, R (on the application of) v The Secretary of State for the Home Department

In ETS deception cases, the issue is ordinarily reviewed on ordinary judicial review principles. It is not a question of precedent fact unless the validity of the relevant leave is a condition precedent to a distinct legal entitlement.

The decision-maker must fairly consider the evidence, having regard both to the serious consequences of a deception finding and to effective administration. A person’s English-language ability, or the presence of children, does not require the Tribunal to determine the facts afresh. Evidence generated by the ETS Look-up Tool and subjected to human verification can provide a fair evidential basis for a deception finding. The absence of visible verifier notes does not itself make the process unfair where the applicant is offered the relevant recording for independent analysis.

The applicant, a Pakistani national with leave as a student, sought judicial review of the Secretary of State’s decision of 18 March 2016 to curtail that leave. The decision was based on ETS material indicating that a TOEIC English-language test had been taken by a proxy.

He relied on his educational history and English-language ability, challenged the reliability and transparency of the ETS voice-comparison process, and contended that the existence of his child required a more intensive review under Manchester City Council v Pinnock [2010] UKSC 45. He also submitted that deception was a precedent fact.

The central issues were the applicable standard of judicial review and whether the ETS evidence gave the Secretary of State a fair basis for the finding of deception.

1. The application was dismissed. The finding of ETS deception was the factual basis for the curtailment decision itself. It was therefore subject to ordinary judicial review, requiring a fair decision on the evidence, rather than a fresh determination of the facts by the Tribunal.
2. The exception illustrated by Abbas [2017] EWHC 78 (Admin) did not apply. In that case, the validity of leave was a condition precedent to a naturalisation application. Here, the applicant had no fundamental right to study in a foreign country. The consequences of a deception finding were serious, but did not engage a fundamental right requiring a different standard of review.
3. The applicant’s child did not alter that conclusion. It would be neither correct nor fair to permit a person with children, but not one without children, to set personal evidence against the decision-maker’s evidence in judicial review. The child’s best interests could arise separately after curtailment, but did not require the Tribunal to re-try the deception issue.
4. Evidence of English-language ability was incapable of being decisive. A person with adequate English may nevertheless have reasons to obtain a qualification dishonestly. In cases of extensive college-based fraud, the institution may itself have encouraged proxy use.
5. The Tribunal accepted that expert analysis would be the ideal means of evaluating voice-comparison evidence. However, expert evidence was not essential even in the criminal context considered in Flynn & another [2008] EWCA Crim 970. The ETS process combined automatic speaker recognition with trained human verification. Professor French’s evidence supported the value of listener training and experience, despite shortcomings in training and the lack of visible notes.
6. The Look-up Tool material, together with human verification, was an adequate and fair basis for the Secretary of State’s decision. The applicant had been offered recordings for independent analysis. The lack of visible note-taking did not render the system unfair.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the judicial-review challenge to the Secretary of State’s curtailment decision.
• Secretary of State for the Home Department: on 18 March 2016 curtailed the applicant’s student leave on the basis of alleged ETS TOEIC proxy-taking.