“This means that findings of fact made by the UT in DK and RK as to the strength of the SSHD’s generic evidence would not be admissible as evidence of the facts found for the purposes of trial in the present proceedings and I have already explained that the UT’s guidance was predicated on those factual findings.” vi) In rejecting the Defendant’s change in the law argument, I repeated that “the factual findings made in DK and RK would not be admissible in the High Court trial of these claims”: J179; vii) In considering whether “special circumstances” existed such as to warrant the application of the Arnold change in the law exception, I took account of the impact on this litigation of my reaching a conclusion that issue estoppel applied: J178. After noting that I had not been addressed in any detail on the impact of such a ruling on the pleaded claims and defences, I observed: “However, on any view, it is evident from the pleaded issues I have summarised…that this will likely have a significant impact on the way that the Defendant is able to defend the claims and I bear this in mind. I do so with this qualification, it seems to me that there is likely to be a distinction between allegations that the particular IE Claimants cheated in their tests (precluded by issue estoppel if it applies) and pleaded allegations and counter allegations about the stage of the generic evidence and theDefendant’s knowledge of it at particular times which, on the face of it, do not appear to be caught by the res judicata doctrine, albeit the dividing line between the two may be less than straightforward.” (Emphasis added.)
“Voice analysis of the speaking and writing test audio recordings, retained under the Unique test ID number matching the certificate that NK relied upon, and the date and time of the test sat at Darwin’s College test centre on15 October 2011 , resulted in the identification of a multiple (“proxy”) test taker, leading to the refusal of his application for leave to remain on4 December 2014 .”
“NK’s claims that he was treated unlawfully fellalls to be assessed on its facts, having regard to the evidence of fraud available: a. With respect to corruption at the test centres where NK was examined. b. The evidence of NK’s TOEIC certificate, and the documentary records linking him to the date and place where he claimeds to have sat that a test.”
“The voice recognition process has since been examined by a number of Presidential Panels of the Upper Tribunal. It is noted that reliance is placed at ¶¶29 to 27 upon decisions of the Upper Tribunal said to record suggested “frailties” and “shortcomings” and “unanswered questions” with respect to ETS’s ability to link test entries to candidates and voice recognition analysis. The pleadings provide a partial picture of the Tribunal jurisprudence only. It is material to the assessment of the reasonableness of the Defendant’s decision and causation that the Tribunal has concluded, on successive occasions, that the process has been shown to be clearly and overwhelmingly reliable in pointing to an individual test entry as the product of a repeated voice…[DK and RK]. The Defendant will rely, in respect of paragraph 31, defending the reasonableness of its decision making and on the issue of causation, inter alia, upon the concessions of Professor Sommer, recorded in DK and RK (1) that candidates would not remain in ignorance that tests were being taken on their behalf: and (2) that it was very unlikely that there were accidental errors in the production or transmission of results.”
“With respect to test centres operating as ‘fraud factories’ (and noting that Darwin’s College was engaged in mass fraud), the guidance of the Presidential Panel in DK and RK is that it is overwhelmingly likely that those individuals to whom the proxy results were attributed are those who took/ obtained their tests by that method. The Defendant contends that any challenges to the reasonableness of its decision-making, premised upon the same or similar generic evidence, stands to be assessed in light of (1) the contemporaneous evaluation of that evidence by an expert tribunal and (2) the guidance as to approach to be adopted to that evidence in DK and RK. Such evidence included, in NK’s case, information withheld by NK, but provided by ETS and stored by the Home Offices Performance and Reporting Analysis Unit.”
“By its determination and reasons of11 March 2024 , the Presidential Panel (Mr Justice Dove, President and UT Judge Mandalia) dismissed both appeals, and expressed itself entirely satisfied that the SSHD had discharged the burden that the first appellant had employed dishonesty to secure the TOEIC speaking and writing score he had relied upon in support of his application of leave to enter the UK as a Tier 4 student. Any challenge to the reasonableness of the Defendant’s treatment of the same or similar generic evidence in NK’s case stands to be assessed by reference to the guidance promulgated, and consistent, concurrent conclusions reached on the evidence by the expert tribunal.”
“The claims pleaded in these proceedings as to the extent of understanding and/or information received from ETS, and its reliability, were considered in detail by the Presidential Panel of the specialist tribunal, and the challenge thereto rejected.”
“…it is admitted that, (1) in consequence of the High Court’s judgment in Hossain & ors v Home Office[2026] EWHC 1413 (KB) , and (2) pending the Defendant’s application for permission to appeal that determination, the Defendant is estopped from denying and thus admits that the Claimant did not himself practice deception on15 November 2011 . With respect to the challenge to the Defendant’s decision making, it is nonetheless material what evidence was available to it. The evidence included, at all material times, the fact that there exist recordings of the speaking and writing test modules completed at Darwin’s College in NK’s name on15 November 2011 , under a location-specific unique registration number that, it is understood, NK accepts is his (1000000224387308) featuring his date of birth and nationality, which are not of NK’s voice. The audio files retained by ETS were analysed, and ETS concluded that they were conducted by a multiple, proxy test taker on NK’s behalf, with the proxy test taker obtaining the 200/200 speaking test score and 170/200 writing test score that NK achieved. NK therefore obtained a TOEIC test certificate with the certificate number 1000000224387308 for the speaking and writing test module based on those tests and, on6 December 2011 , submitted the certificate in support of his subsequent application for LTR as a Tier 4 (General) Student.”
“The reasonableness of the Defendant’s decision making falls to be assessed nonetheless, having regard to thewill contrast between these full marks in listening and 425/495 in reading with the Claimant’s initial listening & reading test 13 days earlier on5 November 2011 , at the ETS Global UK test centre in London, where the Claimant scored just 315 for listening, which is B1 level, and 255 for reading, which is A2 level. These scores are too low to apply for most immigration routes. In other words, in the space of 13 days the Claimant jumped from demonstrating beginner/intermediate level English to intermediate/fluent level. The Defendant will say therefor that this information could and would reasonably have been assessed, if analysed, as corroborating the finding of the Claimant having used a proxy to sit his subsequent test. The Defendant will also say that, in the listening element of the test, 62 of the 100 candidates achieved the maximum score of 495 (including the Claimant) and overall scores were heavily weighted towards the upper end of the score ranges.”
“Paragraph 82 is admitted, except that the Claimant is put to proof as regards his awareness of the deception practiced, on a systemic basis, at Darwin College.”
“…The Defendant notes however…the reasonableness of the Defendant’s decision making stands to be assessed in the context of the evidence available to her at the time and the guidance as to the legal position and approach to be adopted with respect to that evidence now available from the decisions of the UTchanged with …[DK and RK and Varkey]”
“b.…With respect to the plea that there has subsequently been a “growing corpus of evidence” undermining the reliability and accuracy of the data, the Defendant again relies upon the Upper Tribunal’s judgments on the strength of the ETS evidence and/or the evidence set out in the Tribunal judgment t and wider evidence of Darwin’s College operating fraudulently. … ii. As to paragraph 125(iii)(e) and the observations made in the FTT judgment, the Defendant (1) acknowledges the effect, pending her application for permission to appeal of the High Court judgment in Hossain, set out above but (2) notes that it is not suggested that the FTT’s observations were available to inform the Defendant’s decision making in the index period prior to his successful appeal…In so far as the observations of the FTT judgment with respect to the evidential value of the generic evidence available to the Defendant, and the approach thereto, are to be used to gauge the lawfulness of the Defendant’s decision making, it is contended that those observations stand to be assessed in light of predated and rendered unreliable by the UT’s subsequent decisions the guidance promulgated in DK and RK…on the proper approach to the evidence, the concessions of the appellant’s own experts there recorded, and NK’s acceptance that he sat, and failed by a significant margin, the Listening and Reading modules of the ETS test just days prior to his arrangement of the index tests at Darwin College.”
“While SR has set out a number of general allegations at ¶¶1; 5-44 said to be relevant to a “group of claims”, the Defendant’s position is that (1) there is no group litigation order in place and (2) the examination of whether an individual has cheated in his/her test is was at all material times, inherently, fact-sensitive. 4. Paragraph 1 is therefore disputed. SR’s claim that he was treated unlawfully fellalls to be assessed on its facts, having regard to the evidence of fraud available: a. with respect to corruption at the test centres where SR claimeds to have been wasexamined,” b. the evidence of SR’s TOEIC test, and the documentary records linking him to the date and place where he claims to havesat athat test.”
“Of the TOEIC test referred to above and below: i. On17 October 2012 , SR claimeds to have taken a test at Colwell College. ii. There wasis significant evidence to conclude that the certificate was fraudulently obtained by the use of a proxy test taker. iii. It was the results of the test sat by a proxy that were The certificate obtainedwas submitted for the purposes of SR’s application for leave to remain under Tier 4 rules on7 December 2012 .” i. On17 October 2012 , SR claimeds to have taken a test at Colwell College. ii. There wasis significant evidence to conclude that the certificate was fraudulently obtained by the use of a proxy test taker. iii. It was the results of the test sat by a proxy that were The certificate obtainedwas submitted for the purposes of SR’s application for leave to remain under Tier 4 rules on7 December 2012 .”
“In light of the above, the speaking test recorded and retained under SR’s Unique Test Identity Number was not SR’s (which he accepts), and therefore theDefendant avers that the test certificate produced as a result of that recording, andresultsthus the certificate submitted in support of SR’s application for leave, were was the product ofconducted by a multiple, proxy test takeron SR’s behalf.”
“The Defendant relies upon the strength of the evidence available at the material timethat SR’s test was taken by someone other than him. That evidence at all material timesincludeding the wider evidence of fraud available with respect to the operation of tests by Colwell College, both on the day purports to havesat his test and on other days in the index period, SR’s own acceptance that the voice on the audio file for the test retained by ETS under his Unique Test ID numberis not his and the wider evidence of the centre operating fraudulently and not conducting tests under genuine examination conditions.”
“The voice recognition process has since been examined by a number of Presidential Panels of the Upper Tribunal. It is material to the assessment of the reasonableness of the Defendant’s decision making that tThe Tribunal has concluded, on successive occasions, that the process has been shown to be clearly and overwhelmingly reliable in pointing to an individual test entry as the product of a repeated voice: DK & RK…”
“Paragraphs 20 to 27 comprise a series of selective citations from the sequence of Presidential Panel determinations on TOEIC fraud, omitting the key determinations of the Court of Appeal in R (Shehzad and anr) v SSHD[2016] EWCA Civ 615 , the Administrative Court in R (Abbas) v SSHD[2017] EWHC 78 (Admin) , the Court of Appeal in the Upper Tribunal in DK & RK ... The Defendant will rely upon that jurisprudence in full. With respect to test centres operating as ‘fraud factories’, the guidance of the Presidential Panel in DK & RK is that it is overwhelmingly likely that those individuals to whom the proxy results were attributed are those who took / obtained their tests by that method. The Defendant contends that any challenge to the reasonableness of its decision-making, premised upon the same or similar generic evidence, stands to be assessed in light of (1) the contemporaneous evaluation of that evidence by an expert tribunal and (2) the guidance as to approach to be adopted to that evidence in DK and RK. The Defendant will rely, in respect of paragraphs 25-7, in defending the reasonableness of its decision making and on the issue of causation, inter alia, upon the concessions of Professor Sommer, recorded in DK and RK (1) that candidates would not remain in ignorance that tests were being taken on their behalf: and (2) that it was very unlikely that there were accidental errors in the production or transmission of results.”
“In so far as SR contends that any test centre made these arrangements for SR and otherswithout (1) remuneration and (2) acandidates being aware of their test results being obtained by use of fraud, this submission is contradicted by the evidence of various test centre’s practices.”
“By its determination and reasons of11 March 2024 , the Presidential Panel (Mr Justice Dove, President and UT Judge Mandalia) dismissed both appeals, and expressed itself entirely satisfied that the SSHD had discharged the burden that the first appellant had employed dishonesty to secure the TOEIC speaking and writing score he had relied upon in support of his application for leave to enter the UK as a Tier 4 student. Any challenge to the reasonableness of the Defendant’s treatment of the same or similar generic evidence in SR’s case stands to be assessed by reference to the guidance promulgated, and consistent, concurrent conclusions reached on that evidence by the expert tribunal.”
“The Defendant notes and avers the evidence of widespread cheating at various test centres, and the evidence of a proxy test taker that appeared tolinks SR to this fraud. The Defendant relies upon the strength of the evidence available that SR’s test was taken by someone other than him, including the wider evidence of fraud available with respect to the operation of tests at Colwell College, both on the day he purports to havesat his test and on other days in the index period, SR’s own acceptance that the voice on the audio file for the test retained by ETS under his Unique Test ID/Certificate numberis not his and the wider evidence of test centres operating fraudulently or not being genuine. It is further averred that the evidence available at this stagesuggesteds strongly that SR and other candidates attending Colwell College on said date were wasboth aware of, and a participant in, such fraudulent activity.”
“The Defendant relies upon the strength of the evidence then available that SR’s test was taken by someone other than him, including the wider evidence of fraud available with respect to the operation of tests by Colwell College, both on the day hepurports to have sat a histest and on other days in the index period, SR’s own acceptance that the voice on the audio file for retained by ETS underthe test with SR’s Unique Test ID Number,and matching the date and time of his attendance, is not his and the wider evidence of the centre operating fraudulently and not conducting tests under genuine examination conditions.”
“At paragraph 108(iii), it is denied that the representations made by SR contradicted and/or undermined the reliability of ETS’s analysis. The actual scores certified by ETS, including ST’s, were in any event, as SR now appears to accept, by persons other than the student relying upon them.”
“At paragraph 129(iii), the Particulars of Claim again recite selectively from the sequence of determinations of the Upper Tribunal’s Presidential Panels and omits the determination in DK & RK …specifically concerned with the strength of the evidence available as to the chain of custody linking fraudulent / proxy test recordings and the test purported to have been sat by an individual candidate. The Defendant will rely upon the full determination andits examination of the security of ETS’s systems and/or the record of the evidence set out in the Tribunal’s judgment as bearing upon the reasonableness of the Defendant’s decision making premised upon the same or similar evidence relating to Colwell College, then operating as a “fraud factory.”
“82. The Defendant relies upon the strength of the evidence available to the Defendant pointing to its conclusionthat SR’s test was taken by someone other than him, including the wider evidence of fraud available with respect to the operation of tests at Colwell College, both on the day the Defendant is estopped from denying (and the Claimant admits he purports to havesat his test and on other days in the index period, SR’s own acceptance that the voice on the audio file provided to him by ETSfor the test is not his and the wider evidence of test centres operating fraudulently or not being genuine. 83. Paragraph 109 is therefore not admitted and SR is required to prove his case. In particular, the Defendant at all material times recorded accurately the notification of its identification of deception in connection with SR’s speaking and writing test received from ETS.”
“It is material to the challenge to the lawfulness of the Defendant’s reliance upon the apparent reliability of ETS’svoice recognition process, that said processhas since been examined by a number of Presidential Panels of the Upper Tribunal. The Tribunal has concluded that the process has been shown to be clearly and overwhelmingly reliable in pointing to an individual test entry as the product of a repeated voice: DK & RK…”
“Paragraphs 20 to 27 comprise a series of selective citations from the sequence of Presidential Panel determinations on TOEIC fraud, omitting the key determinations of the Court of Appeal in R (Shehzad and anr) v SSHD[2016] EWCA Civ 615 , the Administrative Court in R (Abbas) v SSHD[2017] EWHC 78 (Admin) , the Court of Appeal [sic] in the Upper Tribunal in DK and RK[2022] UKUT 112 IAC. The Defendant will rely upon that jurisprudence in full as it is material to the challenge to the reasonableness of the Defendant’s decision making.With respect to test centres operating as 'fraud factories', a description that applies to Colwell College, the guidance of the Presidential Panel in DK and RK is that it is overwhelmingly likely that those individuals to whom the proxy results were attributed are those who took/obtained their tests by that method.”
“With respect to paragraphs 28-29, the Defendant’s position is that these paragraphs consist of argument and submissions which do not reflect the practices observed at test centres in cases cited in the preceding paragraphs and are premised upon speculation rather than evidence. Material to the challenge to the reasonableness of Defendant’s decision making is againee also the consideration of such an assertion in Varkey…, the concession of the Appellant’s expert recorded at ¶96. See also the concessions of Professor Sommer giving evidence in DK and RK, recorded at ¶85 that (1) it was quite clear that candidates would not remain in ignorance that tests were being taken on their behalf, (2) it was very unlikely that there were accidental errors in the production or transmission of results.”
“By its determination and reasons of11 March 2024 , the Presidential Panel (Mr Justice Dove, President and UT Judge Mandalia) dismissed both appeals, and expressed itself entirely satisfied that the SSHD had discharged the burden that the first appellant had employed dishonesty to secure the TOEIC speaking and writing score he had relied upon in support of his application of leave to enter the UK as a Tier 4 student.”
“Contrary to paragraph 115(d), i. The particulars of claim again recite selectively from an expert report considered by the Tribunal in MA…; ii. The submission that the concerns in MA were subsequently “vindicated” by a report of the APPG on TOEIC and/or disclosure or forensic developments in the Upper Tribunal omits to mention that aPresidential Panel of the Upper Tribunal, in DK & RK … specifically considered the strength of the evidence available as to the chain of custody linking fraudulent/proxy test recordings and the test purported to have been sat by an individual candidate. The UT further found that it was clear beyond peradventure that where there is evidence from ETS that points to the test relied upon by the individual as having been taken by someone other than that person, that was strong evidence that would weigh against the individual and calls for a credible explanation; iii. The Defendant will rely, in rebuttal to the challenge to the reasonableness and lawfulness of its decision makingupon the full determination and its examination of the security of ETS’s systems, including the record of the evidence therein of the concessions made by experts instructed by the appellants, see DK and RK, supra at, §86 Varkey at §§96, 106-7 (that record being also relied upon generally).The UT concluded that the voice recognition process adopted by ETS was “clearly and overwhelmingly” reliable in pointing to an individual test entry as the product of a repeated voice. iv. Those conclusions were not found “in any way undermined” by the evidence of Mr Shury and Mr Stanbury considered by a Presidential Panel of the Upper Tribunal in Varkey…¶108.” i. The particulars of claim again recite selectively from an expert report considered by the Tribunal in MA…; ii. The submission that the concerns in MA were subsequently “vindicated” by a report of the APPG on TOEIC and/or disclosure or forensic developments in the Upper Tribunal omits to mention that aPresidential Panel of the Upper Tribunal, in DK & RK … specifically considered the strength of the evidence available as to the chain of custody linking fraudulent/proxy test recordings and the test purported to have been sat by an individual candidate. The UT further found that it was clear beyond peradventure that where there is evidence from ETS that points to the test relied upon by the individual as having been taken by someone other than that person, that was strong evidence that would weigh against the individual and calls for a credible explanation; iii. The Defendant will rely, in rebuttal to the challenge to the reasonableness and lawfulness of its decision makingupon the full determination and its examination of the security of ETS’s systems, including the record of the evidence therein of the concessions made by experts instructed by the appellants, see DK and RK, supra at, §86 Varkey at §§96, 106-7 (that record being also relied upon generally).The UT concluded that the voice recognition process adopted by ETS was “clearly and overwhelmingly” reliable in pointing to an individual test entry as the product of a repeated voice. iv. Those conclusions were not found “in any way undermined” by the evidence of Mr Shury and Mr Stanbury considered by a Presidential Panel of the Upper Tribunal in Varkey…¶108.”