The Secretary of State for the Home Department v Halima Akter & Ors.

In TOEIC proxy-testing cases, the Secretary of State’s generic ETS evidence may discharge the initial evidential burden. A tribunal should treat the authoritative forensic assessment of that evidence as governing unless substantial fresh evidence gives good reason to revisit it.

An APPG report and its opinions cannot be given significant evidential weight so as to undermine that conclusion without a direct and reliable evidential basis. Where other arguable errors in the First-tier Tribunal’s decision have not been determined, the proper course is to remit the case to the specialist Upper Tribunal rather than remake it.

Halima Akter sought leave to remain under Article 8 ECHR after the Secretary of State alleged that a TOEIC English-language certificate used in her student visa application had been obtained by a proxy. The First-tier Tribunal dismissed her appeal, finding the certificate fraudulent.

The Upper Tribunal set aside that decision because it considered that the First-tier Tribunal had not adequately engaged with an All-Party Parliamentary Group report on TOEIC. It later allowed the underlying appeal after the Secretary of State made an Article 8 concession. The Secretary of State appealed, contending that the APPG report could not undermine the generic ETS evidence or justify interference with the First-tier Tribunal’s decision.

1. Appeal allowed. The Upper Tribunal’s decision was set aside and the case was remitted to a differently constituted Upper Tribunal.

2. The Upper Tribunal erred in treating the APPG report as having significant evidential weight and in relying upon its conclusions about the reliability of expert evidence. It had not itself directly assessed the experts’ evidence and was in no better position than the tribunal considered in Alam.

3. DK and RK (ETS: SSHD evidence, proof) India [2022] UKUT 112 (IAC) was authoritative. Its forensic assessment established that the generic ETS evidence was sufficient to discharge the Secretary of State’s initial evidential burden and required Akter to answer the allegation. A later tribunal could revisit that conclusion only for good reason, which would inevitably require substantial fresh evidence.

4. Alam v Secretary of State for the Home Department [2021] EWCA 1538 did not require a different result. Its reasoning was case-specific and did not inhibit the later, fuller analysis in DK and RK. Reliance in Alam on expert evidence summarised in the APPG material was also distinct from reliance upon the APPG’s own opinions.

5. The Court declined to remake the case. The Upper Tribunal had not decided the other arguable grounds concerning the First-tier Tribunal’s treatment of the burden of proof and of Akter’s evidence. Those matters were properly for the specialist tribunal on rehearing.

• Court of Appeal (Civil Division): Allowed the Secretary of State’s appeal, set aside the Upper Tribunal’s decision, and remitted the appeal for rehearing before a different Upper Tribunal judge.
• Upper Tribunal (Immigration and Asylum Chamber): On 3 February 2020, set aside the First-tier Tribunal’s decision because of its treatment of the APPG report. On 27 April 2020, allowed the underlying appeal following the Secretary of State’s Article 8 concession.
• First-tier Tribunal: Dismissed Akter’s appeal, finding that the Secretary of State had discharged the evidential burden and that the TOEIC certificate had been obtained fraudulently.