DK & Anor v The Secretary of State for the Home Department

In ETS/TOEIC deception appeals, the Secretary of State bears the legal burden of proving dishonesty on the balance of probabilities. That burden does not shift between the parties. The question whether the Secretary of State has produced sufficient evidence to require an answer is a preliminary evidential assessment, not a transfer of the burden of proof.

Current ETS evidence identifying a test entry as having been made by a proxy is amply sufficient to meet that assessment. It requires a response from the appellant. General evidence of widespread organised fraud supplies important context, but an individual allegation must still be determined on all the individual and background evidence.

The appellants were Indian nationals whose applications for leave to remain under Appendix FM were refused because the Secretary of State alleged that each had dishonestly relied on a TOEIC certificate obtained through a proxy test-taker. DK's certificate derived from Universal Training Centre. RK's later test result derived from New London College.

Each appeal had reached the Court of Appeal, where the Secretary of State conceded error and the appeals were remitted to the Upper Tribunal. The Tribunal first considered whether the Secretary of State's general ETS evidence was capable of proving dishonesty and then determined the individual appeals after hearing evidence from the appellants and expert witnesses.

The central issue was whether the ETS evidence, viewed with the evidence as a whole, proved on the balance of probabilities that the appellants had used deception.

1. The appeals were dismissed. The Secretary of State proved, on the balance of probabilities, that each appellant had dishonestly obtained the TOEIC result relied upon for immigration purposes.

2. The legal burden of proving dishonesty rested throughout on the Secretary of State. The Tribunal rejected the account in Muhandiramge v SSHD that evidential burdens move between the parties as a procedural or legal rule. A party's evidence may require the fact-finder to assess the whole case, but it does not transfer the legal burden.

3. The applicable standard was the ordinary civil standard. There is no separate requirement for evidence of a prescribed quality of cogency. The tribunal must decide whether all the evidence establishes the alleged fact on the balance of probabilities, taking account of inherent probabilities and context.

4. The evidence of widespread and organised proxy fraud at the relevant test centres was highly material context. It did not alone prove an individual allegation. However, the ETS voice-recognition process, the records linking entries to candidates, and the absence of a plausible innocent mechanism for substituting a proxy entry provided an ample evidential basis for finding fraud where the evidence was not credibly undermined.

5. Both appellants obtained the relevant recordings and neither asserted that the voice was his or her own. The Tribunal rejected DK's and RK's accounts as unreliable. It found RK's account of an unknown person arranging and submitting a later, satisfactory result wholly incredible. The resulting suitability refusals under Immigration Rules were not shown to be unlawful under section 6 of the Human Rights Act 1998.

• Upper Tribunal (Immigration and Asylum Chamber): The remitted appeals were dismissed. The Tribunal held that the Secretary of State had proved TOEIC-related dishonesty on the balance of probabilities.
• Court of Appeal: The Secretary of State consented to the allowing of each appeal because of errors in the previous Upper Tribunal decisions, and the appeals were remitted for redetermination.
• First-tier Tribunal and earlier Upper Tribunal proceedings: DK's appeal had been dismissed. RK's appeal was initially allowed, then remitted and dismissed after reconsideration. Those decisions led to the appeals remitted by the Court of Appeal.