Secretary of State for the Home Department v Varkey & Anor

In ETS/TOEIC appeals, the Secretary of State bears the burden of proving dishonesty on the balance of probabilities. The tribunal must decide whether dishonesty is more probable than not after considering the whole evidential picture. Inherent probability is a relevant part of ordinary fact-finding, but neither the seriousness of the allegation nor its consequences creates a heightened civil standard.

Reliable ETS evidence that a test was taken by another person is strong evidence requiring a credible explanation. Evidence that hidden-room fraud was possible does not establish that it probably occurred in a particular case, still less that an apparently genuine candidate was unaware of it. The assessment remains fact sensitive.

The Secretary of State appealed from a First-tier Tribunal decision of 5 April 2022 which had allowed Mr Varkey and Ms Joseph’s human-rights appeals. That decision was set aside by the Upper Tribunal on 3 November 2022 and the appeals were remade in the Upper Tribunal.

Mr Varkey had relied on a TOEIC speaking and writing certificate from London College of Social Studies in support of an application for entry clearance. ETS later cancelled the result as invalid, having identified a proxy voice. He denied cheating and relied on his English-language qualifications, earlier and later IELTS results, and evidence concerning possible hidden-room methods of test fraud.

The central issue was whether the Secretary of State had proved, on the balance of probabilities, that Mr Varkey had acted dishonestly.

1. The Secretary of State’s appeal succeeded in substance. On remaking the case, the Tribunal dismissed Mr Varkey and Ms Joseph’s appeals.

2. There is one civil standard of proof: the balance of probabilities. The issue is always whether the Secretary of State has established that it is more probable than not that the individual acted dishonestly. The inherent probability or improbability of an event is relevant to that assessment, but the Tribunal must consider the wide canvas of evidence rather than impose a separate requirement for cogent evidence because fraud is alleged.

3. The Tribunal reaffirmed DK and RK (ETS: SSHD evidence; proof) India [2022] UKUT 00112 (IAC). ETS evidence identifying a test as having been taken by another person is strong evidence that weighs against the individual and calls for a credible explanation. A bare denial, or evidence of a reasonable command of English, will rarely displace reliable generic and individual ETS evidence. English proficiency may be relevant, but it does not preclude a motive to cheat.

4. The evidence established widespread TOEIC fraud and the use of hidden rooms at some centres. It identified several possible methods. Direct substitution, remote control, dual-monitor arrangements and fake identities require the candidate’s complicity. Parallel testing using a cloned manager PC may permit an unaware genuine candidate to take a test, but the possibility of that more sophisticated method did not show that it was probably used at the relevant centre or in this case.

5. ETS Global’s inadequate historic supervision of centres and its internal response to concerns did not undermine the later review process, the attribution audit trail, or the reliability of the evidence in this case. There was no evidence of a system error that wrongly attributed test entries to candidates.

6. Mr Varkey’s account was rejected. His assertion that he took a speaking and writing test on 21 May 2012 was inconsistent with the evidence about the dates on which such tests could be run. The relevant session at London College of Social Studies comprised ten candidates; nine, including Mr Varkey, were identified as using proxy voices. The Tribunal found that he knowingly used a proxy to secure the score relied on for entry clearance.

• Upper Tribunal (Immigration and Asylum Chamber): The First-tier Tribunal’s decision was set aside on 3 November 2022, with remaking retained in the Upper Tribunal. On remaking, the Tribunal dismissed the appellants’ appeals.
• First-tier Tribunal: By a determination dated 5 April 2022, it allowed the appellants’ appeals against the refusal of leave to remain on family and private life grounds.