Jagtar Ram v Secretary of State for the Home Department

In a TOEIC proxy appeal, ETS evidence that a result was invalid, combined with evidence that the test centre was a fraud factory, can create a strong prima facie case of deception. The tribunal must consider the applicant’s contrary evidence, but need not accept a consistent denial or evidence of English proficiency. It must decide whether that evidence outweighs the generic evidence. English proficiency may carry limited weight where time has elapsed and there may be reasons for using a proxy. An appellate court should not reweigh those factual assessments absent an error of principle or law.

The appellant challenged the refusal of further leave to remain on the ground that he had used a proxy to take the spoken component of an ETS TOEIC test. The test was taken at New London College, which was found to have been a centre where widespread cheating occurred.

The First-tier Tribunal dismissed the appeal. The Upper Tribunal set that decision aside, conducted a de novo hearing, and dismissed the appeal on 21 July 2022. The appellant appealed on grounds that the Upper Tribunal had relied excessively on DK and RK, failed to assess his evidence adequately, and failed to give proper weight to his English proficiency. The central issue was whether his evidence displaced the generic ETS and test-centre evidence.

1. Appeal dismissed. The Court of Appeal unanimously dismissed the appeal.
2. Applicable approach. Underhill LJ treated the approach in DK and RK v Secretary of State for the Home Department [2022] UKUT 00112 (IAC) as the correct approach. ETS evidence identifying a result as obtained by a proxy, together with evidence that the test centre was a fraud factory, may establish a strong and highly probative case on the balance of probabilities. The tribunal must consider the applicant’s contrary evidence, but it is not required to accept it. The question is whether that evidence outweighs the generic evidence. A bare denial, even if credible when viewed in isolation, is unlikely to do so.
3. Application to the evidence. The Upper Tribunal considered the appellant’s evidence fully. Its conclusion was supported by the finding that 12 of the 16 spoken English tests taken at New London College on the relevant date were invalid and the remaining four were questionable. The judge was entitled to find that the test centre’s testing was wholly fraudulent and that the appellant had used a fraudulently obtained certificate.
4. English proficiency. The appellant’s IELTS result and his ability to give evidence in English were relevant but of very limited weight. The passage of time and the possibility that a person with reasonable English might nevertheless use a proxy justified the Upper Tribunal’s assessment. No error of law was shown.
5. Appellate restraint. Coulson LJ added that attempting to go behind the Upper Tribunal’s assessment of the evidence would contravene established appellate principles, referring to FAGE v Chobani [2014] EWCA Civ 5 and Volpi & Delta Ltd v Volpi [2021] EWCA Civ 464. Henderson LJ agreed with both judgments.

1. Court of Appeal (Civil Division): Permission to appeal was granted by Snowden LJ on 27 March 2023. The appeal was dismissed unanimously on 11 October 2023: [2023] EWCA Civ 1323.
2. Upper Tribunal (Immigration and Asylum Chamber): The First-tier Tribunal’s decision was set aside and the appeal was reheard de novo. UT Judge O’Callaghan dismissed the appeal on 21 July 2022 and refused permission to appeal on 19 August 2022.
3. First-tier Tribunal: The appellant’s original appeal was dismissed.